Clеda Jean CHAPPELL, Plaintiff-Appellant, v. EMCO MACHINE WORKS COMPANY, Defendant-Appellee.
No. 77-2487.
United States Court of Appeals, Fifth Circuit.
Sept. 6, 1979.
1295
IV. CONCLUSION
For the reasons set forth above, the judgments of convictions entered on all counts on which the jury found appellants guilty of violating
AFFIRMED in part; REVERSED and REMANDED in part.
Robert Trenchard, Jr., Kermit, Tex., for plaintiff-appellant.
Before WISDOM, CLARK and FAY, Circuit Judges.
CHARLES CLARK, Circuit Judge:
On August 31, 1973, the Emco Machine Works Company discharged Cleda Jean Chappell from her position as a shop clerk, giving her two weeks’ pay in lieu of notice. When, on September 18, 1973, Chappell visited the Texas Employment Commission to complain about Emco‘s treatment of her, one of the Commission‘s employees, Mr. Whitley, promised that he would promptly file a complaint on her behalf with the Equal Employment Opportunity Commission (EEOC). During the period between
In processing Chappell‘s complaint, the EEOC found that Chappell had satisfied the jurisdictional requirements of Title VII of the Civil Rights Act of 1964 and that Emco had discharged her on the basis of her sex. On July 25, 1975, the EEOC issued Chappell a “right to sue” letter.
On September 2, 1975, Chappell brought suit in federal district court, alleging that her discharge violated Title VII. Emco moved for summary judgment, contending that Chappell had not met the requirements of
Chappell urges that the 180-day period allowed for filing EEOC complaints under
I.
A.
[1] Is the 180-day time period contained in
In McArthur v. Southern Airways, 569 F.2d 276 (5th Cir. 1978) (en banc), this court held that timely filing of a complaint with the EEOC was a jurisdictional prerequisite to bringing a Title VII action in federal court.2 The McArthur plaintiffs were airline stewardesses who claimed that South-
McArthur did not address the question whether equitable considerations could delay or interrupt the running of the 180-day period. But see McArthur, 569 F.2d at 279-80 (Rubin, J., dissenting). It could be argued, however, that McArthur‘s characterization of timely filing as a jurisdictional prerequisite to Title VII relief means that equity can play no part in determining whether timely filing has occurred. See Reich v. Dow Badische Co., 575 F.2d 363, 372-74 (2d Cir. 1978) (Danaher, Jr., concurring), cert. denied, 439 U.S. 1006, 99 S.Ct. 621, 58 L.Ed.2d 683 (1979). It is illogical to designate a particular fаct as necessary to the court‘s jurisdiction, yet, in its absence, allow the court to adjudicate whether equities indicate that the jurisdictional defect should be ignored.
Supreme Court decisions regarding the consequences of the failure to comply with the provisions of Title VII, however, suggest that Title VII‘s
In addition, both the Supreme Court and this court have, on various occasions, used equitable principles from the law concerning statutes of limitations to ameliorate the effects of Title VII provisions which are characterized as jurisdictional prerequisites. In International Union of Electrical Workers v. Robbins & Myers, 429 U.S. 229, 97 S.Ct. 441, 50 L.Ed.2d 427 (1976), the Supreme Court addressed the question whether the statutory time period for filing complaints with the EEOC was amenable to equitable tolling. The Robbins plaintiffs contended that the statutory period should have been tolled during the pendency of arbitration procedures, asserting that “the policy of repose, designed to protect defendants is outweighed because the interests of justice require vindication of the plaintiffs’ rights.” 429 U.S. at 237, 97 S.Ct. at 447, 50 L.Ed.2d at 435-436. Noting that Title VII and union grievance procedures were independent remedies, the court rejected plaintiffs’ arguments. Although the Robbins Court found that timely filing was a jurisdictional prerequisite to a Title VII suit, 429 U.S. at 240, 97 S.Ct. at 441, 50 L.Ed.2d at 437, the Court distinguished Burnett v. New York Central R. Co., 380 U.S. 424, 85 S.Ct. 1050, 13 L.Ed.2d 941 (1965), a prior decision that found tolling appropriate. In Burnett, plaintiff had filed his Federal Employers’ Liability Act suit in an Ohio state court which had jurisdiction over the matter, but which was an improper forum under Ohio venue law. After the Ohio court had dismissed his suit, plaintiff filed a complaint in federal district court against the same parties served in the state сourt suit, alleging the same cause of action. The Supreme Court held that the filing of the state court action was sufficient to toll the statutory limitations period contained in the Employers’ Liability Act:
Petitioner here did not sleep on his rights but brought an action within the statutory period in the state court of competent jurisdiction. Service of process was made upon the respondent notifying him that petitioner was asserting his cause of action.
380 U.S. at 429, 85 S.Ct. at 1055, 13 L.Ed.2d at 946; see Johnson v. Railway Express Agency, 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975). The Robbins Court distinguished Burnett on its facts by finding that the Robbins petitioner, in filing the grievance proceedings, “was not asserting the same statutory claim in a different forum, nor giving notice to respondent of that statutory claim, but was asserting an independent claim based on a contraсt right.” Robbins, supra, 429 U.S. at 238, 97 S.Ct. at 448, 50 L.Ed.2d at 436 (emphasis in the original). The Robbins Court also noted that the petitioner had not asserted that she was prevented from filing a claim with the EEOC within 90 days4 of the discriminatory act, “indeed, it [was] conceded . . . that she could have filed it the following day, had she so wished.” Id. at 237 n.10, 97 S.Ct. at 447 n.10, 50 L.Ed.2d at 436 n.10. Thus, though Robbins rejected the union‘s claim, it recognized that equitable considerations can, in some circumstances, interrupt the running of Title VII‘s period for filing complaints.
Decisions of this court have also relied on equitable principles to forestall the strict, inflexible application of Title VII‘s jurisdictional prerequisites. In Reeb v. Economic Opportunity Atlanta, Inc., 516 F.2d 924 (5th Cir. 1975), plaintiff had not learned of the facts supporting her claim of illegal employment discrimination under Title VII until after the time pеriod for filing a complaint with the EEOC had expired. This court held that even though the statute requires that the filing period commence to run from the date the discrimination has occurred, equitable considerations mandated that the period “not begin to run . . . until the facts that would support a charge of discrimination under Title VII were apparent or should have been apparent to a person with a reasonably prudent regard
One of our recent en banc decisions, White v. Dallas Independent School District, 581 F.2d 556 (5th Cir. 1978), also lends support to the proposition that Title VII‘s jurisdictional prerequisites are subject to equitable modification. The issue in White was whether Title VII requires the EEOC to defer to the procedures for remedying employment discrimination estаblished by the laws of the State of Texas. Mrs. White had filed a complaint with the EEOC alleging that she was discharged from her teaching post in the Dallas Independent School District solely because of a discriminatory policy on teacher pregnancy. Although, at the time White‘s complaint was filed, the EEOC was litigating the issue whether Title VII required deferral to the Texas statutory remedies, the EEOC sent Mrs. White two letters informing her that “timeliness and all other requirements have been met.” Id. at 562. This court held that Title VII,
In reaching its decision, the White court relied, in part, on Zambuto v. American Telephone & Telegraph, 544 F.2d 1333 (5th Cir. 1977). Zambuto involved the proper construction to be accorded a provision in Title VII requiring that a person who has filed a complaint with the EEOC and received notice that conciliation efforts have failed and that the EEOC does not intend to file suit on his or her behalf must file an action in the United States District Court within 90 days from the date of the notice.
Zambuto did not address whether equitable considerations could interrupt the running of the limitation period once a complainant had received proper notice of the
Ms. Williams was entitled to rely on this seemingly authoritative statement by the agency presumed to know the most about these matters. The same equitable considerations that led us to allow Mrs. Zambuto to pursue her action convince us that we should permit Ms. Williams to continue her action, See Zambuto, supra, at 1336; Reeb v. Economic Opportunity Atlanta, Inc., 516 F.2d 924, 929-30 (5th Cir. 1975).
556 F.2d at 351. Thus, the alternative holding in Page furnishes some support for the view that the running of the 90-day period for filing suit established by
The legislative history of the recent amendments tо the Age Discrimination in Employment Act (ADEA),
Since the decisions of the Supreme Court and of this court have recognized that equitable considerations can, in certain circum-
B.
Since some equitable modification of
In urging that equitable tolling is available to her, Chаppell cites Franks v. Bowman Transportation Co., 495 F.2d 398 (5th Cir. 1974), rev‘d in part on other grounds, 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976). After conciliation efforts with Franks’ employer failed, the EEOC issued right-to-sue letters to Franks covering two discrimination complaints which Franks had filed with the EEOC. The letter was sent to Franks’ mailing address, where his nine-year-old nephew received the letter and signed the postal receipt. The nephew subsequently lost the letter and never told Franks that the letter had arrived. About a year later, Franks contacted the EEOC about the processing of his complaint and was informed that the right-to-sue letter had been issued. After Franks filed another complaint with the EEOC presenting the same allegations contained in the original complaint, the EEOC issued another right-to-sue letter. Noting that, under then current
Chappell urges that Franks should govern here, quoting language from the opinion stating “that Congress did not intend to condition a claimant‘s right to sue under Title VII on fortuitous circumstances or events beyond his control which are not spelled out in the statute.” 495 F.2d at 404. The issue in Franks, however, was, not tolling of a statutory period which had commenced, but rather whether the event which would start the running of the 30-day period had occurred; i. e., whether Franks had received notice of the EEOC‘s decision to administratively close his case. In the case at bar, however, Chappell asserts that even though the comparable 180-day period had properly started to run, equitable consideration should interrupt the period‘s progress. Thus, Franks does not control Chappell‘s case.
Other cases discussed in Part I. A., supra, present situations in which equitable considerations have been applied to interrupt or delay the
The facts of this case do not fit into any of the three categories discussed above. First, Chаppell did not file a lawsuit on her Title VII cause of action in any court prior to the expiration of the 180-day period. Second, she has not alleged that she was unaware of the facts supporting her Title VII claim until after the 180-day period had expired. To the contrary, she attempted to file her complaint within a month of the alleged incident of discrimination. Third, she does not contend that the EEOC misled her about her rights under Title VII. Her only contention is that she was entitled to rely on Whitley‘s representations that her EEOC complaint had been filed.
While none of the cases discussed in part I.A. are on all-fours with the instant case, it is closest to the cases involving misleading statements made by the EEOC. Whitley, an employee of the Texas Employment Commission, was charged with aiding parties in obtaining remedies for employment discrimination and had actually filed EEOC complaints for various persons on prior occasions. He repeatedly informed Chappell that her EEOC complaint had been filed. We decline, however, to extend the tolling principle from the EEOC misrepresentation cases to embrace the situation presented here. Whitley was not an employee of the EEOC, and Chappell could easily have discovered whether her complaint was filed merely by writing or phoning the EEOC office. Yet, for five months, she relied on Whitley‘s reрresentations, despite the fact that her own repeated inquiries obviously indicate that she knew something was awry. If we were to find that Chappell‘s reliance on Whitley tolled the time period, there would be no logical reason for denying tolling to a person who has relied on a lawyer or a relative or an acquaintance to file his or her complaint. A holding of this breadth would seriously undermine the policy of repose inherent in the timely filing period, a policy designed to protect employers from stale claims. See Johnson, supra, 421 U.S. at 467 n.14, 95 S.Ct. at 1724 n.14, 44 L.Ed.2d at 306 n.14; Zambuto, supra, 544 F.2d at 1335. Nor does the fact that Emco has alleged no prejudice as a result of Chappell‘s four-day delay in filing a complaint affect the result. The petitioner in Robbins raised a similar argument, which the Supreme Court rejected:
Petitioners contend at some length that tolling would impose almost no costs . . . . But the principal answer to this contention is that Congress has already spoken with respect to what it considers acceptable when it established a 90-day limitations period, and gave no indications that it considered a “slight” delay followed by 90 days equally acceptable. In defining Title VII‘s jurisdictional prerequisites “with precision,” . . . Congress did not leave to courts the decision as to which delays might or might not be “slight.”
429 U.S. at 239-40, 97 S.Ct. at 449, 50 L.Ed.2d at 437. We therefore conclude that Chappell‘s reliance on Whitley‘s reрresentations did not toll the running of the 180-day time period.
II.
Chappell asserts that her complaint was filed, within the meaning of
Chappell alternatively contends that the 180-day time period did not begin running until September 15, 1973, since she was paid through that date even though the termination occurred on August 31, 1973. The district court found that the statutory period began to run on August 31, 1973, since the incident of discrimination of which Chappell complained occurred on that date. This finding is not clearly erroneous.
Chappell also urges that this court should defer to the EEOC‘s determination that she had satisfied all of Title VII‘s jurisdictional prerequisites. It is clear, however, that a court must make an independent determination of whether jurisdiction exists rather than deferring to the EEOC. Cutliff, supra, 558 F.2d at 807; Reeb, supra, 516 F.2d at 926.
III.
Having found that Chappell failed to file a complaint with the EEOC within 180 days of the alleged incident of discriminаtion and that equitable delay or interruption of the 180-day period is unavailable under the circumstances of this case, we hold that Chappell‘s suit was time barred under
AFFIRMED.
FAY, Circuit Judge, specially concurring:
I concur in parts II and III of the majority opinion and in the result reached in part I. As the trial judge in Zambuto and as a member of the panel in Page, it was my opinion that the time period contained in
WISDOM, Circuit Judge, dissenting.
With his usual thoroughness, Judge Clark has carefully analyzed the question whether the 180-day period contained in
Mrs. Chappell is the victim of a bureaucratic tangle. She filed her complaint with the Texas Employment Commission on September 18, 1973, eighteen days after she was fired. S. R. Whitley, a supervising interviewer for the Commission, stated in an affidavit that “in the regular course of business” he made “a memorandum or record . . . personally at the timе of an interview with Mrs. Cleda J. Dykes [Chappell] on September 18, 1973“. He continued: “These two pages of records represent an employment discrimination complaint. My records reflect that the complaint was forwarded to Equal Employment Opportunity Commission . . . on September 18, 1973 . . . [as] is customary in the usual course of business of Texas Employment Commission“. The EEOC complaint, attached to Whitley‘s affidavit, is dated
EEOC records, however, show that the complaint bearing the notation of the Texas Employment Commission was recеived on March 5, 1974. Although we do not know where the complaint was between September 18, 1973 and March 5, 1974, we do know that Mrs. Chappell was in no way responsible for the delay in filing. The fault for the delay lies with the state agency, the EEOC district office, or the United States mails, in recent years not distinguished for efficiency.
The majority opinion acknowledges that equitable modification would be appropriate had Mrs. Chappell relied on an employee of the EEOC to file her complaint. A complainant “is entitled to rely on . . . seemingly authoritative statement[s] by the agency presumed to know the most about these matters“. Page v. U. S. Industries, Inc., 5 Cir. 1977, 556 F.2d 346, 351. The majority declines to apply this principlе, however, in the case of seemingly authoritative statements made by the supervising interviewer of the Texas Employment Commission because, in its view, there is no logical stopping point between reliance on a state agency and reliance on a lawyer, relative, or an acquaintance to file the party‘s complaint. I consider that an officer or employee of a state agency may be presumed to do his duty in the regular course of business no less than an officer or employee of a federal agency.
State agencies occupy a special role in the statutory scheme of Title VII. Many of the procedural requirements of the Act reflect the judgment that local, more informal enforcement agencies are the preferred means of resolving employment discrimination grievances. Resort to state agencies reduces the EEOC caseload and conserves federal resources. The Seventh Circuit has noted that “as part of the compromise which made it possible to pass the Civil Rights Act of 1964, its sponsors agreed to the inclusion of provisions which . . . require a resort to state procedures, where available, as a condition precedent to a private action in the federal courts.” Moore v. Sunbeam Corp., 7 Cir. 1972, 459 F.2d 811, 820-21. Indeed, the EEOC cannot act on a complaint unless it is first presented to the state agency if the agency is one empowered by the state‘s fair employment legislation to grant relief from the discriminatory act charged.
In Reeb, we said that “the timing provisions [of the Act] will be subject to the same sort of equitable modifications that are applied to statutes of limitations, with the impоrtant additional requirement that these modifications will be applied in the interest of effectuating the broad remedial purposes of the statute.” Reeb, supra, at 927. Modification should be applied if “doing so would further the purposes of the statute as a whole.” Id.
It would be ironic for Mrs. Chappell to be penalized for resorting to a state forum when Title VII places great emphasis on resorting initially to state agencies to rectify unfair practices. Insistence on formalistic distinctions between the EEOC and its “agents” on the one hand and state agencies created to assist the individual in processing his grievance on the other hand is
Here, there is an absence of any prejudice to the defendant attributable to the delay in filing. The delay was minimal, only four days. It can even be said that in terms of the effect on the defendant of the statutory requirement of timeliness—there was no delay. March 1 was the 180th day. The law requires that the defendant be notified within ten days of the filing of a complaint; that is, 190 days from the date of the offense. Here, that would be March 11. The EEOC mailed the notice to the defendant on March 8. The defendant received the notice on March 11. Considering, therefore, notice to the defendant as integral to the ultimate purpose of the timely filing requirement, there was no delay, certainly no prejudicial delay.
The EEOC took the case on the merits, investigated, and found discrimination. Significantly, the EEOC itself, the agency Congress authorized to process employment discrimination complaints, considered the filing was timely. The EEOC “Determination” contains a finding of timeliness. And the district director of the EEOC stated that the “complaint was treated by my office as timely filed“. The Commission found that the defendant‘s reasons for Mrs. Chappell‘s discharge were “so groundless as to warrant a conclusion that sex was the sole motivating factor for her discharge“. In short, the facts cry out for justice.
Mrs. Chappell‘s reliance on Whitley‘s assurances was reasonable. To be sure, Mrs. Chappell‘s repeated inquiries regarding the status of her complaint “obviously indicate that she knew something was awry“. But Whitley told Mrs. Chappell that the complaint had been forwarded and that the EEOC was in the process of taking action. It was reasonable for her to suppose that the delay was attributable to the slow turning of bureaucratic wheels. Her repeated inquiries demonstrate impatience; they do not show that she slept on her rights.
Mrs. Chappell actively pursued her remedies. She filed her complaint with an official state agency set up to carry out the broad purposes of Title VII by assisting laymen in initiating complaints with the EEOC. Bureaucratic ineptitude, whether of the Texas Employment Commission or the EEOC district office, or perhaps the United States postal service, should not result in the forfeiture of her rights. I would, therefore, reverse the district court.