The primary appeal, No. 75-2976, is from the granting of defendant's motion for summary judgment, and the consequent dismissal with prejudice of an Equal Employment Opportunity Commission (EEOC) suit pursuant to Section 706(f)(1) of Title VII of the Civil Rights Act of 1964, as amended in 1972, 42 U.S.Code, Section 2000e-5(f)(1).1 No. 75-3246 is an appeal as to a subordinate issue, the failure to award attorney's fees to appellee, in the same action below.

On October 24, 1972, a non-Spanish surnamed female filed a charge with appellant EEOC, alleging that appellee Airguide Corporation discriminated against her because of her sex and national origin. Pursuant to Section 2000e-5(b),2 the EEOC allegedly sent to Airguide a notice of said charge within ten days of the filing of such charge with the EEOC. Airguide claimed that it did not receive notice of the charge until August 1973, when it received a letter from an EEOC investigator requesting information regarding said charge.

In February 1974, the district director of EEOC, after conducting an investigation, determined that there was reasonable cause to believe that Airguide had discriminated against the charging party on the basis of sex and national origin.3

Thereafter, the Commission and Airguide engaged in conciliation efforts, pursuant to Section 2000e-5(b). Attempts to conciliate were not successful and on March 19, 1975, the EEOC, pursuant to Section 2000e-5(f)(1),4 filed its complaint with the district court alleging the noted discrimination because of national origin and sex. Defendant Airguide moved to dismiss the complaint (Rule 12(b), F.R.Civ.P.) and in the alternative for summary judgment (Rule 56, F.R.Civ.P.). Motions were also filed for a more definite statement (Rule 12(e), F.R.Civ.P.) and to strike portions of the complaint (Rule 12(f), F.R.Civ.P.). With respect to the motion to dismiss or for summary judgment, the district court ruled that it could not determine from the pleadings whether the conditions precedent to the lawsuit had been fulfilled, and accordingly set the matter for an evidentiary hearing "limited to the resolution of Airguide's allegation that the EEOC failed to provide notice of charge within ten days of the filing of the charge of discrimination with the Equal Employment Opportunity Commission." The district court stated that, aside from the notice issue, it was satisfied that all other conditions precedent had been satisfied. The Motions for More Definite Statement and to Strike were denied. Appellant's Appendix (hereafter App.'s App.) p. 24.

On June 12, 1975, an evidentiary hearing was held limited to the issue of receipt by Airguide of a notice of charge, as required by Section 2000e-5(b). At the conclusion of the hearing the district court found:

The Court finds from the evidence that there is persuasive evidence to the effect that the Form 131, that is, the notice of the filing of a charge within ten days from after October 24, 1972, addressed to Airguide, Inc., was actually mailed. The evidence of actual mailing, however, in the Court's opinion, only creates a rebuttable presumption that it was received.

The Court finds that that presumption has been rebutted by the testimony of the defendant and concludes from all of the evidence that the Form 131, Notice of Filing of Charge, was not received by the defendant and that the first notification that the defendant received of the charge was on August 7th between August 7th and August 10th, 1973.

App.'s App. pp. 28-29.

Pursuant to this finding, the court granted the defendant's motion for summary final judgment holding that a condition precedent to suit had not been complied with and that such non-compliance prejudiced defendant. From this decision plaintiff appeals. We reverse and remand for further proceedings below.

We address only the issue of the sufficiency of the notice of the charge of discrimination, since our decision of that question renders determination of the other issues raised by the parties premature.5

Appellant EEOC urges that the district court erred in dismissing its suit solely because Airguide did not receive notice of the charge of discrimination within ten days of filing of the charge.

It is reasonable to conclude that Congress did not intend to allow the Commission to decide capriciously or arbitrarily whether or not notice of a charge of discrimination is to be sent to the alleged violator. This conclusion finds support in Senate Labor Committee Report, Sen.Lab.Comm.Rep. for S. 2515, October 28, 1971, which states:

Recognizing the importance that the concept of due process plays in the American ideal of justice, the committee wishes to emphasize certain provisions which are included in the bill to insure that fairness and due process are part of the enforcement scheme.

(a) Protection of rights of respondent. The bill contains a number of provisions designed to protect fully the rights of the person or persons against whom the charge is filed:

1. The Committee retained the requirement that charges be in writing. The Commission must serve the respondent with a notice of the charge, which would advise the respondent of the nature of the alleged violation. As amended by the Committee, the bill would require such notice to be served on the respondent within 10 days.

But neither do we have reason to think that Congress intended to prevent the Commission from suing because of an unintentional defect in compliance, without a showing that such "non-compliance" has caused prejudice to the defendant-employer. This is especially true where, as here, such non-compliance was actually compliance rendered ineffective by unforeseeable and uncontrollable circumstances.

The cases found persuasive by the district court deal with situations where the EEOC clearly and inexplicably failed to comply with a procedure found necessary before suit could be commenced. For example, in EEOC v. United States Pipe & Foundry Co., N.D.Ala.1974, 375 F. Supp. 237, 247, the district court granted defendant's motion for summary judgment because it found that "(o)n the undisputed facts in this case, it is clear that Local Union 12014 was not contacted with respect to conciliation and that U.S. Pipe failed to receive a 'last chance' notice, which the Commission was obligated to transmit. . . . Where an agency confers a benefit by its regulations to party in proceedings before it, it should not be permitted capriciously to deprive a party of that benefit. This case falls within this general rule, and the court will not permit the Commission to ignore procedures which may obviate the necessity for litigation." (Emphasis added). The EEOC in the present case neither acted capriciously nor ignored required procedures. Equally distinguishable is EEOC v. Westvaco Corp., D.Md.1972, 372 F. Supp. 985, where the Commission sought injunctive relief against an employer and certain unions, alleging unlawful employment practices. The court found that the EEOC failed to attempt to conciliate or to determine whether reasonable cause existed, and so dismissed the suit.

In the present case, there was every attempt to comply with the conditions precedent to suit required under Section 2000e-5. Indeed, the district court itself found that "there was persuasive evidence to the effect that the Form 131, that is, the notice of the filing of a charge within ten days from after October 24, 1972, addressed to Airguide, Inc., was actually mailed." App.'s App. pp. 28-29.

While there is support for the proposition that not only Section 2000e-5(f)(1) but also the administrative steps in Section 2000e-5(b) are conditions precedent to suit by the EEOC, EEOC v. Hickey-Mitchell Co., 8 Cir. 1974, 507 F.2d 944, EEOC v. DuPont de Nemours and Co., D.Del.1974, 373 F. Supp. 1321, aff'd 3 Cir. 1975, 516 F.2d 1297, EEOC v. Container Corp., M.D.Fla.1972, 352 F. Supp. 262, such a position must be balanced against the observation of the Sixth Circuit in EEOC v. Kimberly-Clark Corp., 6 Cir.1975, 511 F.2d 1352, 1360, cert. denied 423 U.S. 994, 96 S. Ct. 420, 46 L. Ed. 2d 368, that "(w)hen an agency neglects to follow a procedural rule but its failure inflicts no significant injury on the party entitled to observance of the rule, the error does not prevent further administrative or judicial action."

As the United States Supreme Court observed in Hanna v. Larche, 1960, 363 U.S. 420, 442, 80 S. Ct. 1502, 1515, 4 L. Ed. 2d 1307, 1321, " . . . due process embodies the differing rules of fair play, which through the years, have become associated with differing types of proceedings." We are unwilling to hold that in the present situation where there has been virtual compliance with all the statutory procedural steps, and where there has been no clear showing of substantial prejudice to Airguide6 there has been a showing of a denial of due process sufficient to bar EEOC from bringing suit.

The district court's statement that "(w)here an employer does not receive notification that he has been charged with discrimination in hiring until well after the event in question, relevant forms will in all likelihood have been destroyed.", EEOC v. Airguide, S.D.Fla.1975, 395 F. Supp. 600, 604, is speculative and unpersuasive. It was not shown that such forms have been destroyed or, if so, whether Airguide was prejudiced by such destruction. The affidavit of defendant's general manager, App.'s App. pp. 14-18, on its face shows the possibility of prejudice, but that possibility may or may not be dissipated upon full exploration of the facts.7 Also, aside from its categorical denial of receipt of the notice of the charge of discrimination, that affidavit was couched to a considerable extent in conclusionary terms.

The judgment appealed from is reversed and this cause is remanded to the district court for a determination of the extent of the prejudice, if any, suffered by Airguide because of lack of receipt of timely notice of the charge of discrimination. The result of such determination will govern the necessity for further proceedings below, up to and including a full-scale trial of all disputed issues of fact. We indicate no views as to the proper resolution of any of such issues.

REVERSED and REMANDED.