I concur in that part of the majority opinion which holds that the Texas statute is sufficient to require the sixty-day deferral provided for in Section 706(c) of Title VII, but I respectfully dissent from that portion which asserts that “the EEOC’s failure to follow its own regulations sufficiently misled Mrs. White and that their mistakes should not redound to her detriment.”1 At 562. The majority bases that assertion on the rule of Zambuto v. American Telephone and Telegraph Co., 544 F.2d 1333 (5th Cir. 1977), where the EEOC’s erroneous “two-tier letter” practice was found to have misled the plaintiff and, thus, held not to affect her right to judicial examination of her employer’s conduct.
I feel compelled to note that my sentiments regarding Zambuto are aligned with those of Judge Fay:
As the trial judge in Zambuto, I reluctantly concluded that the ‘seemingly authoritative statement by the agency presumed to know the most about these matters’ was not sufficient to abrogate the clear limitations and time periods prescribed by Congress. Nothing has changed my mind.
Page v. United States Industries, Inc., 556 F.2d 346, 355 (5th Cir. 1977) (Fay, J., concurring).2
*564Were this a proper case, our en banc court could reconsider Zambuto. Today, however, the majority broadens the Commission’s presumed (and court approved) power to amend the law. All that a non-elected agency employee has to do to eliminate the requirement of Section 706(c) of Title VII from the law is to write a letter saying that its mandate does not apply in a given case. I do not endorse this invasion of the powers of the Congress by the Executive branch. Furthermore, as a result of this “back door legislating,” the Court, in the name of equity, invokes the doctrine of estoppel against the defendant, who is now prohibited from asserting the plaintiff’s failure to comply with the statute as a defense. The twist is that the resort to estoppel is not necessitated by the conduct of the defendant but rather by that of the third party, the EEOC, who would have the defendant sued.
The freedom of a dissenter permits what would be inappropriate idle speculation were it included in an opinion for the Court. Where else may Zambuto lead our Executive branch and lead us? If the agency’s 'letter writer perceives that the district court having jurisdiction is overloaded with work (or, perhaps, manned by a judge he does not like), may he “advise” the employee that he has the “right to sue” in another district? Will this Court try the case if the agency “misleads” the plaintiff by telling him that he may file an original action in the Court of Appeals? I shall continue to throw my puny ounces onto the side of the scale that would deny the right of the judiciary, In re Washington, 544 F.2d 203, 210 (5th Cir. 1976) (dissenting opinion), rev’d sub nom. Rinaldi v. United States, 434 U.S. 22, 98 S.Ct. 81, 54 L.Ed.2d 207 (1977) (per curiam), or of the executive to invade the powers reserved to another of our three branches.
Thus, on this point, I respectfully dissent.
. The same holding might have been expressed by saying that if the Commissioner finds that an employer ought not be allowed to assert a defense specifically provided by the Congress, the Commission can excise that defense from the law by erroneously advising the employee that it does not exist.
. Indeed, when I was “in the trenches” in the Northern District of Georgia, the same issue confronted that court in the case of Kelly v. Southern Products Co., No. 19243, (N.D.Ga. June 14, 1975). In holding that an administrative agency could not amend the law to conform more nearly tc the agency’s idea of what it should be, I observed:
A contrary opinion would permit the Agency (EEOC) to disregard the Congressional mandate that the employee shall have 90 days after being notified of the failure of conciliation in which to bring suit. In the view of this Court, Congress has considered the limitation matter and has enacted the law. Neither the Agency nor this Court is authorized to amend the law thus enacted by the Congress. Indeed, as originally enacted, only 30 days from notification was allowed for the bringing of suit. It is clear that officials of the Agency felt that the Congress had not acted wisely and, in Whitfield v. Certain-Teed Products Corp., 389 F.Supp. 274 (E.D. Mo. 1974) and Harris v. Sherwood Medical *564Industries, 386 F.Supp. 1149 (E.D.Mo.1974) there appears a recitation of attempts by the Agency to “correct” and extend the limitation period established by the Congress. Presumably, the administrative agency’s dissatisfaction with the 30 day limitation was brought to the attention of the Congress before it amended the law in 1972. Pub.L. 92-261, § 4(a). Nevertheless, the Congress did not grant to the Agency the full right to provide whatever time it wished for a plaintiff to bring suit but merely extended the limitation to 90 days. The ‘two-letter’ approach taken by the Agency in this case is nothing more than a further attempt by the Administrators of the law to amend the law it administers so as to make the law more nearly what the Agency personnel felt that it ought to be instead of what the Congress has declared it to be. If our conduct is to be governed by laws constitutionally enacted by the people’s elected representatives the Courts cannot sanction amendments by administrative agency personnel.
Plaintiff has also brought to the attention of the Court [a case where a District Court Judge in Illinois] denounced a similar practice of the Agency but, upon an equitable principle, permitted the plaintiff’s suit to continue because the plaintiff had been misinformed by the Agency. By such a result this only encourages the Agency to continue its efforts to change the Congressional mandate.
Id, slip op. at 3-4 (citations omitted).