Lead Opinion
Appellant brought suit charging that he was discharged from his job by appellee and was otherwise discriminated against because he was of Mexican descent. He claimed rights under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. and under the Civil Rights Act of 1886, 42 U.S.C. § 1981. The District Court granted summary judgmеnt for Appellee on both claims and this appeal followed.
Title VII Claim
This suit was brought February 6, 1976. The dismissal of the Title VII claim was upon the ground that suit had not been brought within 90 days of receipt of a notice of right to sue from the Equal Employment Opportunity Commissiоn as required by 42 U.S.C. § 2000e-5(f)(l).
The charge of discrimination in hiring on the part of appellee was filed by appellant with the Commission on August 11, 1975. In November appellant’s attоrney requested the Commission to issue a right to sue letter and on November 6, 1975 a notice of right to sue was issued, directed to appellant with copies shown to his attorney and to appellee. On the same day the Commission wrote to aрpellant’s attorney by registered mail. A copy of the notice was enclosed. The letter stated in part:
Dear Mr. Jaramillo:
In accordance with your request on behalf оf your client, Robert M. Gonzalez, Sr., made pursuant to Commission Procedural Rules 29 CFR 1601.25d(c) (аs amended), you are hereby notified that you may institute a civil action under Section 706(f) of Title VII of the Civil Rights Act of 1964 in the appropriate Federal District Court within ninety dаys of the receipt of this letter.
This letter was received at the attorney’s office on November 7, 1975. Appellee’s copy of the notice was reсeived the same day. Suit by appellant was commenced 91 days later.
Appellant contends that to start the 90-day period running he must himself have received notice of right to sue and that the burden is on the Commission to prove that he had received it. We disagree.
We hold that when the request for issuance of a right to sue letter comes from a claimant’s attorney, notice to the attorney that right tо sue has been granted starts the time running. Communication with the attorney respecting thе right to sue letter that he had himself requested on behalf of his client was communicаtion with the claimant in the proper and appropriate way. Minor v. Lakeview Hospital,
We cоnclude that dismissal of the Title VII claim on the ground that suit was not timely brought was propеr.
Section 1981 Claim
This claim was dismissed by the District Court for the reason that the alleged discrimination was аsserted to be based on national origin and not on race and that § 1981 is concerned with racial discrimination.
We read this as a claim that the discrimination he suffered was directed at those Mexican-Americans having, by virtue of their descent, a brown rather than a white skin.
We tаke note of the fact that a substantial portion of the Mexican population traces its roots to a mixture of the Caucasian (Spanish) and native American races. With this background prejudice towards those of Mexican descent having a skin color not characteristically Caucasian must be said to bе racial prejudice under § 1981. The affidavit of appellant sufficiently claimеd discrimination in employment founded upon such racial prejudice. Whether this was in truth the cause for appellant’s grievances remained an issue for trial аnd it was error to grant summary judgment upon the § 1981 claim.
Judgment affirmed as to the Title VII claim and reversed as to the § 1981 claim. The case is remanded for further proceedings.
Notes
. Courts are divided upon the question whether prejudice based only on nationаl origin presents a claim under §.1981. Compare, e. g., Manzanares v. Safeway Stores, Inc.,
Concurrence Opinion
concurring and dissenting.
As to the Title VII claim, I agree completely. As I am unable to agree with the opinion as to the § 1981 claim, I respectfully dissent as to that part of the opinion.