Opinion · Court of Appeals for the First Circuit

Valentine R. CICCONE, Plaintiff, Appellant, v. TEXTRON, INC., Et Al., Defendants, Appellees

651 F.2d 1

Type: Opinion
Court: Court of Appeals for the First Circuit
Jurisdiction: Federal
Date: 1981-06-08
Topic: bankruptcy

PER CURIAM. Pursuant to the Supreme Court’s order of October 20, 1980, 449 U.S. 914, 101 S.Ct. 311, 66 L.Ed.2d 143, vacating and remanding our prior decision in this case, Ciccone v. Textron, Inc., 616 F.2d 1216 (1st Cir. 1980), and after supplemental briefing by the parties, we reconsider this appeal in light of Mohasco Corp. v. Silver, 447 U.S. 807, 100 S.Ct. 2486, 65 L.Ed.2d 532 (1980). In our earlier decision, we held that a complainant under the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-34, whose claim arose in a deferral state is not entitled to the extended 300-day federal filing period unless he “has diligently sought a state administrative remedy — if not within the state’s limitations period, then at least within the generally longer 180 days afforded plaintiffs in a nondeferral state.” Ciccone, supra, 616 F.2d at 1220.

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Cited by: 33 opinions

CICCONE v. TEXTRON, INC.,651 F.2d 1(1st Cir. 1981)

VALENTINE R. CICCONE, PLAINTIFF, APPELLANT, v. TEXTRON, INC., ET AL.,

DEFENDANTS, APPELLEES.

No. 79-1541.

United States Court of Appeals, First Circuit.

Submitted December 4, 1980.

Decided January 19, 1981.

Certiorari Denied June 8, 1981.

A. Lauriston Parks, Robert D. Parrillo, and Hanson, Curran Parks, Providence, R.I., on brief, for plaintiff, appellant.

Leroy D. Clark, Gen. Counsel, Constance L. Dupre, Acting Associate Gen. Counsel, Vincent Blackwood, Asst. Gen. Counsel, William NG, and Karen MacRae Smith, Attys., E.E.O.C., Washington, D.C., on brief, for E.E.O.C., amicus curiae.

Michael P. DeFanti and Hinckley, Allen, Salisbury Parsons, Providence, R.I., on brief, for defendants, appellees.

Appeal from the United States District Court for the District of Rhode Island.

Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.

PER CURIAM.

[1] Pursuant to the Supreme Court's order of October 20, 1980,449 U.S. 914,101 S.Ct. 311,66 L.Ed.2d 143, vacating and remanding our prior decision in this case,Ciccone v. Textron, Inc.,616 F.2d 1216(1st Cir. 1980), and after supplemental briefing by the parties, we reconsider this appeal in light ofMohasco Corp. v.Silver,447 U.S. 807,100 S.Ct. 2486,65 L.Ed.2d 532(1980).

[2] In our earlier decision, we held that a complainant under the Age Discrimination in Employment Act,29 U.S.C. §§ 621-34, whose claim arose in a deferral state is not entitled to the extended 300-day federal filing period unless he "has diligently sought a state administrative remedy — if not within the state's limitations period, then at least within the generally longer 180 days afforded plaintiffs in a nondeferral state."Ciccone,supra,616 F.2d at 1220. For reasons set forth therein, we thought this the most reasonable and consistent interpretation of an intractable statute. InMohasco,however, faced with the almost identical provisions of Title VII of the Civil Rights Act of 1964,42 U.S.C. § 2000e-5(c), (e), the Court stated that the extended 300-day filing period was to be allowed regardless of a claimant's failure to seek a state administrative remedy within 180 days. The rationale inMohascostrongly suggests, if it does not compel, the conclusion that it is to control in situations such as the present. To be sure, language in the Supreme Court's recent decision inDelaware State College v.Ricks,449 U.S. 250,101 S.Ct. 498,66 L.Ed.2d 431(1980), leaves some slight room for argument that our position was not entirely foreclosed byMohasco. See49 U.S.L.W. at 4061 n. 13;id.,at 4062 n. 2 (Stewart, J., dissenting). But we explained our thinking inCiccone,which the Court cited inMohascoin criticizing the approach we and other courts had taken.Mohasco,supra,447 U.S. at 815,Page 2100 S.Ct. at 2491nn. 16 19. It might well appear unseemly were we now to persist in a rationale which, although widely adopted by the circuits, seems to have found little favor with the Court. Moreover, there is something to be said for trying to achieve uniformity even if the rule adopted may seem less than optimal. We accordingly hold, on the authority ofMohasco,that the longer period of 300 days is to be allowed for federal filing in deferral states.Accord Davis v. Calgon Corp.,627 F.2d 674(3d Cir. 1980),cert. denied,449 U.S. 1101,101 S.Ct. 897,66 L.Ed.2d 827(1981),denial of cert. suspended,No. A-604 (80-529) (January 14, 1981);Bean v. Crocker National Bank,600 F.2d 754(9th Cir. 1979). The technical niceties are discussed inMohasco, supra,447 U.S. at 814-815n. 16; 832-35,100 S.Ct. at 2491-92n. 16; 2500-01 (Blackmun, J., dissenting).

[3]Reversed and remanded for further proceedings consistent withthis opinion.