ON REHEARING:
On February 6, 1975 this court affirmed that portion of the judgment of the United States District Court for the Western District of New York which dismissеd as time barred a claim of unlawful employment practice brought by appellant DeMatteis agаinst the Eastman Kodak Company under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e — 2, for the reason that the statutory 90-day limitation period began to run when the Equal Employment Opportunity Commission notified the parties that it had dismissed appellаnt’s charge, and not, as appellant argued, when he later received a “Notice of Right to Sue,” which was held to be jurisdiction-ally irrelevant under the facts of the present case.
On February 27, 1975 appellant filed a petition for rehearing of the case, in which he maintained that, contrary to the representations hitherto made to this court, he had not received, together with the “Notice of Determination” whiсh disclosed that appellant’s charge had been dismissed, a covering letter similar to the one the Commission sent to Kodak, which stated in essence that appellant had the right to proceed directly in thе federal court,
Whereas it was prоper under the facts as previously developed in this case to attribute the decision to apply for a notice of right to sue to counsel’s misreading of the statute and applicable regulations, thе Commission has now confessed error in that it had explicitly directed that such permission was required. If it is true, as DеMatteis now asserts, that he received the Commission regular form letter which stated that the recipient has 90 days “from the receipt of this notice” to commence a civil action in the United States District Court,
Although we see no reason to change our decision that the statute of limitations begins to run on a Title VII claim, which the Commission has dismissed because it has determined after an investigation that there is not reasonable cause to believe that the allegation is true, when the Commission notified the parties of its action, “[w]e should not indulge in the fiction that the law now announced has always been the law аnd, therefore, that those who did not avail themselves of it waived their rights.” Griffin v. Illinois,
In view of these considerations we hereby modify our judgment in this ease so that the portion thereof which deals with the Title VII claim will have prospective effect only, from the date of the originаl decision, plus 90 days, so that it will first apply to actions, wherein appellants or applicants have been' misled by the Commission, brought under § 706 of Title VII on and after May 7, 1975. See, Chevron Oil Co. v. Huson,
The judgment of this court is reaffirmed in all other respects.
Notes
.
. The letter which appellant рreviously claimed to have received is reprinted in pertinent part in footnote 3 of the original opinion.
. The letter which appellant actually did receive stated in pertinent part:
“Based upоn a full investigation of this matter, this Commission has determined that the facts upon which your charge is based do not сonstitute a violation of Title VII of the Civil Rights Act of 1964, as amended. Notwithstanding this determination, you still have a right pursuant to Section 706 of Title VII to request, in writing, that this Commission issue a Notice of Right to Sue authorizing you to institute a civil action in the appropriate United States District Court.’’ (Emphasis added.)
. The Notice of Right to Sue is reprinted in footnote 4 of the original opinion.