*1 the required by and the nation as Title VII claim state that Lawson’s would find on a Academy. rules of the WSP Based summary- survives religious discrimination manu- reading training of the WSP’s basic reverse the district judgment, I would also al, reasonably Lawson believed that his § claim. Lawson’s court’s dismissal to perform failure these acts would result 654(“[I]f governmental employer Id. discipline discharge or for insubordina- VII, has it also violated has violated conflict, In hopes resolving tion. this amendment.”). of the first guarantees the ad- explained Lawson his dilemma to his and remand with I reverse would also superiors specifically and re- visors and indepen- of an respect Lawson’s claim to to prior resigning. accommodation quested the claim remarks dent based refused, flatly superiors His advisors and resignation. Captain Porter after Lawson’s only sending message the that Lawson had favor, as Lawson’s Viewing the evidence in compromise religious two choices: his be- right must, Lawson’s we the WSP violated or to resign. majority’s attempt liefs religious under Title to freedom VII voluntary resignation call this a a mat- constructively the First Amendment to logic contrary ter of law defies and is gave the WSP him. Lawson discharging law. wrong right to its yet opportunity another Viewing most light the evidence in resignation; hoping involuntary after his Lawson, favorable to I conclude there are reinstated, Cap- be Lawson contacted to to triable issues as whether WSP con- day he left the WSP tain after Porter structively discharged Lawson because about whether inquire further Academy religion. his The district court erred in religious WSP could accommodate summary motion for granting WSP’s Captain agreed Porter beliefs. Had claim judgment as to Lawson’s accommodation request Lawson’s in dismissing Lawson’s claims under reinstatement, no have had Lawson would § 1983. I would and remand for reverse the relief he bring need suit to obtain trial. now seeks. Instead, to offer Captain Porter refused that, if
any He insisted accommodation. trooper, a state he
Lawson wanted flag take the
would to salute the have response a con- oath as written. This KANG, Plaintiff-Appellant, Soo Cheol tinuation discrimination WSP’s against religious of his Lawson because AMERICA, INC., U. LIM Tae Jin legal continuing beliefs. The had a WSP Yoon, 1-100, Does Defendant- duty to from the WSP not bar Lawson Appellee. merely religious of his Academy because No. 00-55583. breached that Captain beliefs. Porter duty. Appeals, United States Court of
Ninth Circuit. III. Argued and Submitted Oct. Conclusion July Filed religious held beliefs sincerely Lawson’s saluting flag him from or
prevent allegiance faith
swearing true *4 Grey,
Richard Law E. Office Richard CA, Grey, Diego, E. plaintiff- San for the appellant.
John S. Battenfeld and M. Mul- Melissa key, LLP, Morgan, Lewis & Bockius Los CA, Angeles, defendants-appellees. for BROWNING, FERNANDEZ, Before: FISHER, Judges. Circuit Opinion Judge JAMES R. BROWNING; by Judge Dissent FERNANDEZ. BROWNING, Judge.
JAMES R. Circuit Kang (Kang) Soo sum- appeals Cheol in mary employer favor of his on law tort VII and state claims. We for proceed- reverse and remand further ings. Lim de charge. Lim America was U.
IBackground Yoon only customer. Mexico’s Kore- citizen of Kang a United States Lim America and the Vice-President be- April he origin. an national In Lim Mexico. His fa- President of U. de corporation gan working for California Yoon, ther, Ki both Hwa owned America, Inc. All of U. called U. Lim Lim Mexico. He was America and U. de heri- shared Korean America’s companies Executive Officer of both Chief (Yoon) Yoon tage. Tae Jin of U. Lim America. and President oth- subjected Kang and Yoon supervisor. physical to verbal er Korean workers Proceedings II Below discriminatorily long work abuse and abuse consisted The verbal hours. Kang in court filed suit state California for three screaming up Yoon for na- against U. America and Yoon calling “stupid,” him day hours discrimination harass- origin tional bitch,” “son of a and “as- “cripple,” “jerk,” in of Title VII and the ment violation abuse consisted physical shole.” The Housing Employment California Fair a metal striking head with Act. also state law claims brought occasions, kick- approximately ruler wrongful termination violation *5 ears, shins, pulling him his ing policy and breach of contract. De- public calculators, water throwing ashtrays, metal case to fendants removed the the United bottles, him, forcing at and him to files and Dis- States District Court for Southern to cut jacks.”1 began “jumping do trict of The district court California. in to required overtime order back summary Lim granted U. wife; his Yoon pregnant time with spend America and Yoon on all causes of fired him.2 action. had six or fewer em- U. Lim America Kang’s appeal focused on four issues: However, compa- ployees. the U.S.-based (1) VII, (2) applicability of Title nation- Mexico, Lim operated U. de ny owned and (3) harassment, origin origin al national in manufacturing company an electronics (4) discrimination, equitable tolling. and Lim America’s Tijuana, Mexico. All of U. We consider district court’s sum- Tijuana factory. employees worked at the mary novo. judgment decision de Warren Lim between 50- employed U. de Mexico Carlsbad, City 58 F.3d of Mexico.3 of 150workers—all citizens Cir.1995). organized under U. Lim de Mexico the sole the laws of Mexico and existed for Application III of Title VII for televisions purpose assembling parts of threshold, Lim At the must for sale to U. we determine computer monitors percent applies whether VII Lim Amer- plus America at cost a one sur- Title dispute Kang's Soon 2. There as to Yoon 1.Yoon also abused co-workers is some whether (Park) (Cho). Jae Ho Wan Park Cho quit. purposes For of fired or Park such as “son of Yoon called names summary judgment, U. Lim America con- vagina” (apparently an "son of a bitch” and Kang. ceded that Yoon fired language), epithet offensive in the Korean abuse, subjected punching physical Park Only 3. one of U. Lim de Mexico’s workers nose, striking him the face him the was of descent. Korean rulers, ashtray throwing crystal at metal him, ears, kicking pulling Yoon him. things yelled Cho at him. also and threw argued purchased goods iea. Lim America it was separately, entered into employed covered Title VII because it agreements separately, lease and were people.4 hold that fewer than fifteen We separately managed). because U. Lim America applies VII integrated
and U. Lim de Mexico were an
Management
Common
enterprise
employed a
to-
which
combined
factor,
The second
common man
employees.
tal of
than fifteen
more
agement, also favors
finding
two com
applies a
test
four-part
This circuit
panies
integrated
for Title VII pur
two
are an
determine whether
entities
poses. Yoon was the Vice-President of U.
integrated enterprise
purposes
Lim America and
President
de
coverage.
Childs v. Local
Int’l
U. Lim
supervisors
Mexico.
de Mexico
Workers,
Bhd. Elec.
719 F.2d
reported directly to U. Lim America’s
(9th Cir.1983).
“(1)
The four factors are:
managers. See Cook v. Arrowsmith Shel
(2)
operations;
common
interrelation of
Inc.,
burne,
(2d
Cir.
(3)
management;
centralized control of la
1995) (finding
management
common
where
(4)
relations;
ownership
bor
common
companies
the two
a “common
had
man
or
Considering
financial control.”
Id.5
agement structure” and the President of
these
factors we conclude that U.
de
subsidiary operated
parent’s
out
Mexico
and U.
America were
inte
office).
grated enterprise employing more than
necessary
employees.
fifteen
8. Centralized Control
Labor Rela-
Interrelation
Operations
tions
*6
factor,
of op
The first
interrelation
factor,
The third
centralized control
erations,
in favor of
the
weighs
finding
two
relations,
of labor
is
“most critical.”
companies
integrated enterprise.
to be an
Cook,
Hukill,
442;
Control
rights
employee,
pro
to restore civil
in
also weighs
fourth factor
The
by
had been limited
the Su
tections that
companies to
finding the two
favor of
preme
strengthen
protec
Court and to
America
enterprise. U. Lim
integrated
rights
tion and
Federal civil
remedies of
were owned
Lim de Mexico
102-40(1),
(1991),
H.
at 4
Rep.
laws.
No.
fa
person,
the same
Yoon’s
by
controlled
& Admin. News
Cong.
U.S. Code
Furthermore,
Yoon.
ther Ki Hwa
ambiguous
broadly interpret
we
lan
Since
no
essentially
profit
made
de Mexico
rights
in
statutes to
guage
civil
effectuate
Amer
its
to U. Lim
all
funds
transferred
purpose
legislation,
the remedial
of the
see
Cook,
1241(finding
at
ica.
Breckenridge,
403 U.S.
Griffin
met
requirement
(1971);
ownership
common
also
S.Ct.
“remedial
such as
law[s],
construed”),
are
broadly
to be
we
argued that the
Lim America
definition of “employ
hold
Title VII’s
in Title
employee
prohib
definition of
VII
counting
foreign
prohibit
ee” does not
con
foreign employees
its
counting
U.S.
corporations
employees of U.S.-controlled
purposes of Title
corporations
trolled
for
determining coverage.
statutory
The
definition
coverage.
VII
rather
restrictive.
inclusive
than
of the employ
The fact
some
term
is defined
include U.S.
“employee”
integrated enterprise
ees of the
are not
employed by
companies
U.S.
citizens
themselves covered
federal antidiscrim
than
foreign
prohibit
rather
countries
preclude counting
ination
does not
law
citizens. See 42 U.S.C.
counting non-U.S.
purposes
for the
employees
them
2000e(f).
The definition arose out
determining
coverage.
See Mor
elli,
Congress’s amendments
Title VII
at 44-45. “The nose count of
legislatively
Rights
Act to
over
relates
the scale
the em
Civil
ployer
than to the extent of protec
rather
turn
v. Arabian Amer
the result EEOC
*7
tion.” Id. at 45. The Morelli court so
Co.,
244, 259,
499
111 S.Ct.
ican
U.S.
Oil
due,
part,
policies
in
concluded
be
(1991)
that
(holding
L.Ed.2d 274
limiting
coverage
employ
hind
Title VII
companies
for U.S.
citizens working
U.S.
including
with
or
ers
fifteen more workers
VII).
not
abroad were
covered
compliance
potential
“the
and
burdens of
(2d
Cedel,
39, 42
v.
Morelli
costs,
litigation
protection
‘the
of intimate
Cir.1998), interpreted similar definitional
personal
existing in
and
relations
small
statute,
Age Dis-
language in a related
businesses,
on
potential
competition
effects
(ADEA).
Employment
Act
crimination
economy,
constitutionality
and the
and the
Congress
explained
The
court
that
Morelli
of Title
under
the Commerce
VII.
”
specify
amended the ADEA to
that
(citation omitted).
Id. at 45
Clause.’
citizens
employee
term
included U.S.
large
America combined with its
Mex
companies
U.S.
outside
working
operation
not
ican
is
a small business of
U.S.,
counting foreign em-
type Congress
protect
not to exclude
intended to
employee
at 42-44.
the minimum
limitation.6
ployees. Id.
argued
court
America
U. Lim Mexico
6. U. Lim America
that
if the
found
de
employed
workers,
50-150 Mexican
Yoon
Origin
Harassment
IY National
subject
did
any
of them to physical
summary judgment for the
We reverse
abuse.
genuine
This evidence created a
harassment
employer Kang’s
claim.
issue of material fact as to whether Yoon’s
claim,
To
his harassment
prevail on
abuse and
imposition
longer working
(1) that
subject
must
he was
show:
hours was
Kang’s
based on
national origin.
ed to verbal or
conduct because of
physical
presented
also
evidence that the
(2) “that
origin;
his national
the conduct
physical
long
and verbal abuse and
work-
(3)
unwelcome”;
“that
was
the conduct
ing hours were in fact unwelcome. See
pervasive
or
to al
sufficiently severe
Raton,
Faragher
City
v.
Boca
524 U.S.
plaintiffs
employ
ter the conditions of
S.Ct.
L.Ed.2d 662
ment and create an abusive work environ
(1998) (discussing
requirement
that the
Widnall,
ment.”
Gregory
F.3d
perceive
victim
the environment as offen-
(9th Cir.1998).
Generally,
a
sive).
plaintiff
or national
alleging
origin
racial
harassment
present
showing
would
facts
Kang’s
evidence further showed
that he
to racial
subjected
epithets
physical
that
the verbal and
abuse and
Here, however,
the workplace.
Kang al
discriminatory working hours created a
leged that he and other Korean workers work environment
that was “objectively
subjected
physical
were
verbal
...
offensive
one that
reasonable person
supervisor
abuse because their
viewed would find hostile
abusive.” Id.
or
“The
their
origin
superior.
national
conduct,
outrageous
more
the less fre
unusual,
form
such stereotyping
is
but
is
(sic)
quent
must it occur to make a work
an evil at which
the statute
aimed. See place
Gregory,
hostile.”
pool production facility. Its role in this 818 itself, a with ruination and that his termination
days Kang complaint filed before the arguably Com the culmination of harass- Equal Employment Opportunity the (EEOC).7 ment, Kang period. filed his EEOC fell within the defined Be- mission 13, days summary 300 cause this case comes to us at complaint on November 1998. 17, January judgment, we draw all prior to that date was inferences February Kang. most to Kang light terminated on favorable We conclude was Thus, occurring Kang genuine of during raised issues materi- only incidents continuing of em fact as to whether a last two and a half weeks al violation so, any form the basis of a hostile and if fell ployment could occurred whether act Kang statutory period. unless dem work claim within environment a the conduct constituted onstrated that Disparate An violation. See v. Los V Treatment
continuing Green Schs., Superintendent 883 geles County of summary judg We also reverse Cir.1989). (9th 1472, 1475 F.2d employer Kang’s disparate ment for the on treatment claim. To make out a prima contributing “an act to When treatment, disparate Kang facie case of filing claim within the period, occurs (1) belonged must show that: to a he period the hostile environ entire time of (2) class; he protected qualified was for his for the may ment be considered court (3) subjected job; he was to adverse liability.” Nat’l purpose determining action; (4) — employment similarly situ Morgan, Passenger v. U.S. Corp. R.R. protected ated not class his 2067, 153 —, L.Ed.2d S.Ct. received more treatment. (2002). summary favorable judgment, To survive Davis, Chuang v. Univ. therefore, Kang demon required of California Cir.2000); F.3d see also only genuine strate issues of material Co., Simplot J.R. Wallis about fact exist as whether acts (9th Cir.1994) (holding that the amount complained “part were which he proof prima needed establish a facie work environment same actionable hostile summary case “is minimal so, any if act practice, [fell] whether does not even need to rise to the level statutory period.” id. within the time evidence”). preponderance at 2067. alleged es in a Kang Kang membership that Yoon’s acts established continuing protected people tablished a violation because of Korean national class— origin. Although of a they part “pattern parties dispute were discrimina spe qualified tory posi treatment.” did recall whether for the tion when was physical cific acts of verbal or harassment he terminated since he was unwilling as during last two and a half weeks of to work much overtime as work, wanted, although genuine the evidence reflected such Yoon raised a issue However, Kang prior acts to that time. of material fact as he would whether alleged long discriminatorily required have been work as much over until his ter- time if he had not working required hours were been Korean. Yoon here, requires agency, Kang complainant 7. Title lo file his did the time limit *9 charge Equal Employment Opportu- Id.; filing days. EEOC is extended to 300 see (EEOC) nity days Commission within 180 Angeles County Superinten also v. Los Green alleged discriminatory U.S.C. the last act. 42 Schs., 1472, (9th dent 883 F.2d 1473 Cir. However, 5(e)(1). complain- if the 2000e— 1989). initially proceedings ant files with a state
819 Wesson, Inc., subjected Kang 1217, to a number of win v. Hunt 150 allegedly F.3d (9th Cir.1998). conditions, 1221 employment including adverse abuse, verbal and discrimi physical severe Equitable Tolling VI of the Law State termination, natory overtime, and that con Claim change “a stituted material terms We reverse Kang’s employment. summary judg also and conditions” of ment for employer on Kang’s 1126 state tort Chuang, (finding 225 F.3d at law argued claim. involuntary plaintiffs’ his claim for relocation of labora action). wrongful in termination public violation of tory space to be an adverse Final policy filed. timely governing ly, Kang genuine raised issues of material year. statute of limitations is one Funk v. similarly fact as to whether situated non- 1129, (9th Sperry Corp., F.2d employees were treated more fa Korean Cir.1988). Kang was terminated from his vorably.
employment February 2, on 1998. He 16, filed his complaint February 199 9 — Although pre Lim America However, 14 days charges late. he filed legitimate nondiscriminatory sented rea with the EEOC and California Depart conduct, for its Texas Dep’t sons see ment of Fair Employment Housing Burdine, Cmty. v. 450 U.S. Affairs (DFEH) complaining of the same conduct. 256-57, 1089, 67 101 S.Ct. L.Ed.2d 207 (1981), Kang has set sufficient forth facts law, Under California the statute jury which a find that from could U. Lim’s of Kang’s limitations on tort claim bemay pretextual. Kang presented reasons are equitable pursued tolled while he ad his evidence that abused him and direct Yoon Equitable tolling ministrative remedies. longer Koreans to required work hours (1) applies timely if: the defendants had Yoon believed that Korean work because (2) claim; notice of plaintiffs first the de superior were ers to Mexicans Ameri fendants in prejudiced gathering were not Specifically, allegedly cans. Yoon said against evidence to defend the second lazy that American were and that workers (3) plaintiff claim and good acted in them; pity on he took that Mexicans were faith engaged reasonable conduct lazy they spend would rather filing City claim. second Cervantes v. money work; than and that “Koreans (9th Diego, San 5 F.3d Cir. work must hard because Mexicans [are] 1993). you unreliable and have watch out for (1) The record indicates that: de This evidence is sufficient for a them.” timely Kang’s fendants had notice of first subjected jury conclude that claim filed within year which was the one conditions, employment to adverse and ul (2) limitations; statute of defendants were fired, timately based on failure to con Kang’s not prejudiced by filing late of his See, stereotypes. e.g., form ethnic Lin wrongful termination claim because their France, v. Air dahl Kang’s investigation of EEOC and DFEH Cir.1991) (9th it was (holding imper charges gath would have allowed them to hiring to base decisions on missible stereo against er evidence wrongful to defend class). protected about a types grounded termination claim on the same conduct, “very present Since must little” see Daviton Columbia/HCA direct evidence of Healthcare Corp., discrimination show (3) Cir.2001); pretext, summary should not the time between granted employer. right-to-sue been for the of a letter and receipt have God *10 820 true that are requirement. unrea- It there complaint was not filing
the
of
separate
of
employees
issues
times when the
two
genuine
there are
sonable. Because
if they belonged
can be
as
com-
entities
treated
Kang’s
whether
fact as to
disputed
See,
entity
purposes.
Title VII
filed,
to one
for
summary judgment
timely
was
plaint
Inc.,
Shelburne,
v. Arrowsmith
e.g., Cook
inappropriate.8
(2d
1235,
Cir.1995);
v.
F.3d
1240
Childs
69
18,
Workers, 719
Int’l Bhd.
Elec.
Local
VII Conclusion
(9th Cir.1983);
1379, 1382
Armbrus
F.2d
Kang presented evidence sufficient
(6th
Quinn,
1332,
ter v.
711 F.2d
1337-39
genuine
equitable tolling and raise
invoke
Cir.1983);
v. Component
Pearson
cf.
merits of
fact as to the
issues material
(3d Cir.)
471,
Corp., 247 F.3d
486
Tech.
harassment and discrimination
his federal
(Worker Adjustment
Retraining
Noti
claims.
—
Act),
denied,
—,
fication
cert.
U.S.
REMANDED.
REVERSED
(2001);
345,
122
A. Title VII claim, they if were combined. covered employer In order an to be for plain of 42 language U.S.C. VII, it must have at least 15 2000e(f) which, unhelp § generally while employees during portion at least a of the defining as individu fully employee an “an 2000e(b). § year. See 42 U.S.C. employed by employer,” goes al an on to employ- had more than America never “[wjith respect employment state face, Thus, its VII does ees. on an foreign country, such term includes apply even to U. America. individual who is a citizen the United Thus, much, Kang recognizes argues apparent “[u]n- he it is but States.” citizen, a em employees person that the of U. Lim de Mexico less an American count, it under swept ‘employee’ into the abroad is not ployed should be employee then far over Title VII.” Russell v. Midwest-Werner & would he his com- 1. do note that the test has been used in an asserted that submitted I plaint September attempt corporation on make the "affiliated" the DFEH Although charge signed. employer. for the the date liable acts of immediate Hut, Inc., date, summary disputed this v. 162 F.3d Lim America See Lockard Pizza Here, Cir.1998). light Kang does court views evidence 1069-70 Therefore, Kang. as- Lim de has not most we not seek that —U. Mexico favorable joined charge September been this action. seeks sume he filed even date, employer Using of limita- to make the liable and to statute immediate wrongful alleged Kang's claim of an affiliate for tions on termination count meeting days purposes requirements equitably should be tolled because 2000e(b) charges pending only. 42 U.S.C. There is no need his administrative were question. Rogero But days EEOC for to decide that see the DFEH for and with the Noone, (11th Cir.1983). days. 520-21 *11 Inc., F.Supp. 115 ed for ADEA Pfleiderer, purposes. Id. 44-45. It (D.Kan.1997). words, In the defini- other would seem that the court could have an automatically not employee tion of does by swered that question pointing to the persons working include all abroad be- fact that United employed States citizens cause, did, if it would be no reason to there abroad are included in the ADEA defini expressly include States citizens. United (just tion of an employee they as are in Rather, citizens, States non-United who VII), cluded under if they Title even are abroad, employees are are not working not domestically. located 29 U.S.C. meaning within the VII and cannot 630(f). § further, The court went howev entity be decide if an counted when we is er, Congress if stated that intended to an to 42 employer U.S.C. pursuant “exclude foreign employer’s foreign 2000e(b). § workers,” Morelli, it could have said so. reasoning compatible
The above
is
with
I recognize that this
conflict with a
enough clarity
(nay require)
permit
one
holding of the
Circuit under
Second
words,
stop
with its own
rather
than
Age
Employment
Discrimination
Act.
(2d
undertaking
a wilderness of
stravage
Cedel,
See Morelli v.
B. California
delayed
Rojo
FEHA claim later. See
Kang’s
dismissed
65,
373,
The district court
88,
388,
Kliger,
P.2d
52 Cal.3d
801
claim
Cali-
wrongful termination
because
(1990).
130,
would,
276
145
It
Cal.Rptr.
year
one
of limitations
fornia’s
statute
jaded eye upon
undoubtedly, look with a
340;
§
barred it. See Cal.Civ.Proc.Code
did not have
assertion
he
1129,
842 F.2d
1133
Sperry Corp.,
Funk v.
claim,
had
though
file his tort
even
he
his
Cir.1988).
I
that.
agree
right
long
to sue letter
before
statute
expired. Kang
cites no au
limitations
2,
terminated
February
Kang was
thority
contrary.
Der
to the
Elkins v.
1998,
his action until Feb-
and did
file
Cf.
413,
410,
81, 83,
by, 12
525 P.2d
115
16,
Cal.3d
the difficul-
ruary
perceives
1999. He
(1974) (statute
641,
Cal.Rptr.
643
of limita
the statute
ty, but believes that
should
tions
while
expired
pending);
first action
proceedings
tolled
under
have been
while
Supervi
Bd.
VII,
Friends Mammoth v.
the California Fair
under
sors,
Act,
1049,
P.2d
8 Cal.3d
502
Housing
Employment
Cal. Gov’t
(1972)
course,
1063,
761,
(same);
12940,
Cal.Rptr.
Of
pending.
Code
were
Kang expressly
be no
is not covered
asked that there
actu-
4. Because
Lim America
and, thus,
VII,
addition,
proceeding
al administrative
his
neither Yoon. In
individ-
Equal Employ-
pending before
claim was
under Title VII.
ual defendants are not liable
Opportunity
ment
Commission for mere
Inc.,
Miller v. Maxwell’s Int’l
Depart-
days and before the California
seven
(9th Cir.1993).
587-88
Housing
Employment
ment
Fair
days.
even shorter five
Addison,
over, Kang’s pro filings I do not see forma agencies
with the and wait of months be filing as anything approach
fore his action
ing good “reasonable and faith conduct” on Addison, part. 21 Cal.3d at *13 943, 146 Cal.Rptr.
P.2d at at 227.
Finally, days6 even if the 12 during
which his public claims were before the limitations,
agencies tolled the statute of wrongful termination action was still later, 14 days day
filed which was one too case, Kang,
late. As is too often the or his
advisors, played chicken with the statute
limitations, and lost.
Thus, I respectfully dissent. NORD, Plaintiff-Appellant,
Kenneth L.
The & BLACK DECKER DISABILITY
PLAN, Defendant-Appellee.
No. 00-55689. Appeals,
United States Court of
Ninth Circuit.
Argued and Submitted Oct. 2001. July
Filed 2002. 6. asserts that because his DFEH com- to sue notice states that as the plaint purports signed by to have been him on filing, date of and because he asked for an September it must taken as filed notice, right-to-sue gave immediate it it to date, department's stamp but him on October actually shows it was received on October