Susie J. JACKSON, Plaintiff-Appellant, v. RICHARDS MEDICAL COMPANY, Defendant-Appellee.
No. 91-5473.
United States Court of Appeals, Sixth Circuit.
Argued Nov. 7, 1991. Decided April 10, 1992.
961 F.2d 575
Thomas L. Henderson (argued & briefed), Frederick J. Lewis (briefed), Frederick J. Lewis, McKnight, Hudson, Lewis, Henderson & Clark, Memphis, Tenn., for defendant-appellee.
Carolyn L. Wheeler (briefed), E.E.O.C., Washington, D.C., for amicus curiae E.E.O.C.
Before: MERRITT, Chief Judge, GUY, Circuit Judge, and WELLFORD, Senior Circuit Judge.
MERRITT, Chief Judge.
The plaintiff, Susie J. Jackson, appeals the District Court‘s dismissal of her Title VII, Age Discrimination, and
Though the panel is unanimous as to the ultimate disposition of this case, Judges Guy and Wellford disagree with part IV B of this opinion. Therefore, Judge Guy writes for the court as to the issue discussed in part IV B of this opinion.
I.
Ms. Jackson, an African American, was born in 1939. In 1976 she began work as a “Shop Order Clerk” at Richards Medical Company, the defendant. On January 12, 1984 she received notice that she was subject to a layoff from her position because her job functions were going to be combined with those of the “Engineering Micrographics Clerk.” Before effecting the layoff, the defendant administered a written exam to Ms. Jackson to determine whether she met minimum qualifications for the new clerk position. On February 20, 1984, the Engineering Micrographics Clerk position was awarded to Ms. Gwendolyn Richmond, also of African American
The plaintiff, acting without counsel, filed a timely charge with the Equal Employment Opportunity Commission and the Tennessee Human Rights Commission alleging that the defendant discriminated against her on the basis of race. On December 31, 1984, the EEOC found that there was “not reasonable cause” to support the allegation. The Commission issued a Notice of Right to Sue which allowed the plaintiff 90 days within which to file suit against her former employer. After the right to sue notice was issued, the plaintiff told the EEOC that the defendant had “doctored” the scores on her written exam. Before the expiration of the 90 day right to sue period, the EEOC withdrew its no cause determination. After investigating the new allegation, the EEOC, on May 31, 1985, issued a second no cause determination and a second right to sue notice. On August 30, 1985, the plaintiff filed suit in the District Court for the Western District of Tennessee, alleging that the defendant terminated her because of her race, in violation of Title VII of the Civil Rights Act of 1964,
On August 27, 1985, the plaintiff, still pro se, filed a second discrimination сharge against the defendant with the EEOC—this time on the basis of age. The plaintiff acquired counsel in November 1985. In February 1986, the plaintiff amended her Complaint to include a cause of action under Section 4(a)(1) of the Age Discrimination in Employment Act,
The District Court dismissed the plaintiff‘s three claims. The Court held that, under Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989),
The plaintiff appeals the dismissal of her claims. The EEOC requested leave to file a brief as amicus curiae supporting thе plaintiff‘s position that the District Court erred in declaring the Title VII action untimely. We granted this request and offered the defendant an opportunity to respond to the EEOC‘s brief.
II. Section 1981 Claim
The District Court dismissed the plaintiff‘s
“Because
Ms. Jackson was discharged in February 1984. She did not bring her
III. ADEA Claim
The District Court dismissed plaintiff‘s ADEA action as time-barred. In considering a motion to dismiss for lack of subject matter jurisdiction, the complaint is to be liberally construed and all uncontroverted factual allegations on the face of the complaint are to be taken as true. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974).
The timely filing of a charge of age discrimination with the EEOC is ordinarily a condition precedent to an ADEA lawsuit. The ADEA statute sets out two limitations periods for the filing of a charge: 180 days after the alleged unlawful practice occurred, or 300 days after the alleged unlawful practice occurred.
In the face of the statute of limitations the plaintiff asserts that the limitations period should be equitably tolled. Specifically, the plaintiff states that equitable tolling is appropriate because “there is no evidence that she was ever advised by the EEOC, or that she could have been aware of her rights under ADEA prior to August 27, 1985.” The plaintiff, in other words, pleads ignorance of the law.
Judge Bownes, in Kale v. Combined Ins. Co. of America, 861 F.2d 746 (1st Cir. 1988), offers an analysis for ADEA cases “where a plaintiff is claiming excusable ignorance of the filing deadline.” Id. at 753.
[A] court should initially determine whether the plaintiff had either actual or constructive knowledge of his rights under the ADEA. Actual knowledge occurs where an employee either learns or is told of his ADEA rights, even if he becomes only generally aware of the fact that there is a statute outlawing age discrimination and providing relief therefor.... Constructive knowledge, on the other hand, is “attributed” to an employee in situations where he has retained an attorney ... or where an employer has fulfilled his statutory duty by conspicuously posting the official EEOC notices that are designed to inform employees of their ADEA rights....
If the court finds that the plaintiff knew, actually or constructively, of his ADEA rights, ordinarily there could be no equitable tolling based on excusable ignorance.... If, however, the employee has no knowledge of his rights and his ignorance is due to misleading conduct by the defendant or failure of the defendant to post the required EEOC notices, then an initial case for equitable tolling has been made.
Id. (citations omitted).
At first glance, the plaintiff appears not to possess either actual or constructive knowledge. There is no evidence that the plaintiff had actual knowledge of her rights under the ADEA prior to the filing of her ADEA charge. And constructive knowledge cannot be automatically attributed to the plaintiff because the plaintiff did not retain an attorney until after she filed her ADEA charge. The record is silent as to whether the defendant posted an ADEA notice. Yet, the plaintiff was by no means ignorant of the existence of employment discrimination laws, or the channels through which to protect her employment rights. Bеfore being laid off (but after receiving notice that she would be laid off) the plaintiff visited the EEOC office and filed a charge of employment discrimination. Further, in her response to the defendant‘s motion to dismiss, the plaintiff admits to having “worked closely with the EEOC beginning February 15, 1984.” Moreover, upon the appointment of the younger Ms. Richmond as Micrographics Clerk on February 20, 1984, the plaintiff effectively became aware of a possible age discrimination charge. The plaintiff, however, did not discuss such a charge with the EEOC, seek legal counsel, or otherwise pursue this claim until one and one-half years later. On these facts, we find that
We take guidance from the Eleventh Circuit‘s decision in a closely analogous case, McClinton v. Alabama By-Products Corp., 743 F.2d 1483 (11th Cir. 1984). In McClinton, a 55-year old plaintiff was discharged from his job, only to be reрlaced by a 27-year old worker. Friends told the plaintiff that he might have a “discrimination suit.” Within thirty days of his termination he visited the local Labor Department office and telephoned the Labor Relations Board, but to no avail. The plaintiff then waited nearly a year before obtaining counsel and filing an ADEA charge with the EEOC. The McClinton court refused to toll the statute of limitations, stating:
When an employee is generally aware of his rights, ignorance of specific legal rights or failure to seek legal advice should not toll the [limitation] period. A contrary result would permit an aggrieved employee aware of his general rights to sit on those rights until he leisurely decided to take action. This would be inconsistent with and undermine the underlying ADEA policy of encouraging speedy, non-judicial resolutions to age discrimination employment disputes.
Id. at 1486. We adopt the reasoning of the Eleventh Circuit in the present case. Accordingly, we reject the plaintiff‘s claim that excusable ignorance should toll the statute of limitations.
The plaintiff states in her brief that “the employer‘s failure to post notices of rights under ADEA” may constitute misconduct by an employer capable of tolling the statute of limitations. The plaintiff, however, does not allege that the defendant, Richards Medical Company, engaged in such misconduct.3 Even if we were to infer such an allegation, the record does not reveal that the plaintiff pursued it below, nor does the brief provide support for such an allegation on appeal. Vague and conclusory allegations of misconduct are insufficient to state a claim. Gutierrez v. Lynch, 826 F.2d 1534, 1538-39 (6th Cir. 1987).
In sum, the equities do not favor tolling the 300 day limitations period.
IV. Title VII Claim
The District Court dismissed the plaintiff‘s Title VII action for failure to file the complaint within 90 dаys after receipt of the first right to sue letter issued by the EEOC to the plaintiff. The District Court accepted the defendant‘s argument that the plaintiff‘s request that the Commission withdraw its first no cause determination “was merely an attempt to avoid the statute of limitations by manipulating the EEOC to obtain a notice of right to sue dated after December 1984.” Memorandum Opinion at 4. The court noted that while the Commission has discretion to withdraw its determination and to issue multiple notices of right to sue, as happened here, “these [notices] can be challenged by showing that the sole purpose of reconsideration was to extend the initial notice period,” Id. (citing Gonzalez v. Firestone Tire & Rubber Co., 610 F.2d 241 (5th Cir.1980)). In Gonzalez the Commission decided to reconsider a no cause determination forty-one days after it had issued its right to sue letter. The Commission ultimately issued a second no cause determination and a second right to sue letter. The Fifth Circuit held that a suit filed within 90 days of the issuance of the second right to sue notice was timely. It noted in dicta, however, that the validity of a second notice could be challenged if “the sole purpose of reconsideration was to extend the initial notice period.” Gonzalez, 610 F.2d at 246. It was this dicta on which the District Court relied.
The plaintiff and the EEOC, appearing as amicus curiae, assert that the District Court erred in dismissing the Title VII claim as time-barred. The Commission
We thus face two issues. First, are the EEOC regulations governing the reconsideration of Commission determinations valid? Second, if the regulations are valid, can a court review the Commission‘s decision to reconsider a cause determination? We consider the first issue in part IV A and the second issue in part IV B. Because Judges Guy and Wellford disagree with part IV B of this opinion, Judge Guy writes for the court as to the issue regarding the reviewability of the Commission‘s reconsideration decision.
Our discussion in part IV A proceeds as follows. With respect to the validity of the Commission‘s regulation, we face two possible standards of review. If the regulation is “substantive,” then the level of deference we afford it “depend[s] upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.” EEOC v. Arabian American Oil Co., — U.S. —, 111 S.Ct. 1227, 1235, 113 L.Ed.2d 274 (1991) (quoting General Electric v. Gilbert, 429 U.S. 125, 142, 97 S.Ct. 401, 411, 50 L.Ed.2d 343 (1976)). If, however, the regulation is “procedural,” then we apply a different standard of review. Congress authorized the Commission “to issue, amend, or rescind suitable procedural regulations to carry out the provisions of [the Act].” Section 713(a) of Title VII, Civil Rights Act of 1964,
Part IV B examines under what circumstances the EEOC‘s decision to rеconsider a cause determination can be challenged in and reviewed by a district court. In dissent, I take the position that the Commission‘s decision to reconsider a cause determination is not subject to judicial review. A corollary of my position is that the revocation of the previous right to sue letter and vacation of the 90 day limitations period which follow from the decision to reconsider are also immune from judicial scrutiny. Consequently, I would hold that the District Court erred in dismissing the plaintiff‘s Title VII claim as time-barred.
Despite the panel‘s disagreement over part IV B, we nevertheless affirm the lower court‘s dismissal of the claim.
A. Validity of EEOC Regulations
Title VII of the Civil Rights Act of 1964 embodies Congress’ intent and preference that discrimination complaints be resolved through the administrative process rather than through litigation.
To implement Title VII‘s administrative scheme Congress authorized the Commission “to issue, amend, or rescind suitable procedural regulations to carry out the provisions of [Title VII].” Section 713(a) of Title VII, Civil Rights Act of 1964,
As noted above,
Subsection (d) of
In cases where the issuing Director decides to reconsider a dismissal—a notice of intent to reconsider will promptly issue. If such notice of intent to reconsider is issued within 90 days from receipt of a notice of right to sue and the charging party has not filed suit... the notice of intent to reconsider will vacate the dismissal or letter of determination and revoke the notice of right to sue... After reconsideration the issuing
The defendant contends that
Gilbert presented the issue whether an employer‘s exclusion of benefits for disability during pregnancy was a per se violation of Title VII. The Supreme Court found that an EEOC regulation designating pregnancy to be a temporary disability deserving of coverage under an employer disability plan was unsupported by the Act‘s legislative history and was directly contradicted by two opinion letters issued by the Commission. 429 U.S. at 142-45, 97 S.Ct. at 411-12. Thus, the Court did not defer to the regulation to determine the breadth of Title VII‘s sex discrimination provisions. Particularly noteworthy is the Court‘s explicit distinction between the regulations at issue in Gilbert and those falling within
In Aramco, as in Gilbert, the EEOC sought to define the scope of Title VII‘s coverage. The issue in Aramco was whether Title VII‘s protection extended to United States citizens employed abroad by American employers. The Commission argued that it did. Once again the Court refused to defer to the Commission‘s interpretation. Citing Gilbert, the Court found the Commission‘s position undercut by prior conflicting agency interpretations of Title VII, and by the lack of clear Congressional intent to apply the statute overseas.
In both Gilbert and Aramco, the Court declared that it would not defer to EEOC policy purporting to expand the Act‘s coverage where such policy was unsupported by past agency pronouncements and clear Congressional intent. Courts have framed the general rule emerging from these cases thus: “Section 713(a) of Title VII ... preclude[s] the EEOC from issuing substantive regulations.” Emerson Elec. Co. v. Schlesinger, 609 F.2d 898 (8th Cir.1979). Accord EEOC v. Raymond Metal Products Co., 530 F.2d 590, 592-93 (4th Cir. 1976) (Congress through section 713(a) intended to restrict the Commission to issuance of procedural rules, and to deny the Commission the power to make substantive rules that create rights and obligations).
Section 1601.21, however, is unlike the regulations struck down in Gilbert and Aramco. Looking to its history, function and
The Commission‘s experience is that in reviewing for possible litigation, information may be discovered which may give rise to the Commission believing that an administrative error had been made in making a finding of no cause. The Commission may wish to reconsider at thаt point and after complying with Title VII procedures, bring suit. Thus it is essential that the Commission be able to reconsider determinations....
Id.
The Commission‘s power to reconsider determinations is consonant with Congress’ intent that discrimination complaints be resolved administratively. Experience taught the Commission both that new evidence may come to light and that Commission staff may make mistakes when compiling and assessing the charging party‘s case file. Consequently, the Commission erected a safety net to catch those cases inadequately handled in their initial administrative processing. Specifically, it promulgated subsections (b) and (d) of
This conclusion is supported by Raymond Metal Products, 530 F.2d 590 (4th Cir. 1976). There, the court examined a predecessor to
Put differently,
The analysis which led us to conclude the regulation is procedural persuades us that it is reasonably related to the purpose of
To require a discharged employee to bring suit against his employer at a time when the District Director has reconsidered his earlier determination of no-cause and the administrative processes designed to effect conciliation and avoid litigation are in the process of going forward, is to us a rather strange requirement.
Id. at 1086-87 (emphasis in original).
We agree. Accordingly, we find that subsections (b) and (d) of
B. Reviewability of Commission‘s Reconsideration Decision
The defendant argued below, and the District Court agreed, that the plaintiff fraudulently induced the Commission to issue a notice of reconsideration and to vacate the 90 day limitations period attaching to the initial right to sue letter. As a result, the Court refused to recognize the limitations period attaching to the second right to sue letter issued after the Commission reconsidered its first no cause determination. Instead, the Court looked to the first 90 day period, determined that the plaintiff failed to file suit within that period, and dismissed the plaintiff‘s Title VII claim as time-barred.
I conclude that the EEOC‘s decision to reconsider a cause determination, and the procedural consequences attaching to such a decision, should not bе subject to judicial review. Therefore, I would hold that the District Court erred when it reviewed the Commission‘s reconsideration decision.
The issue here does not implicate the integrity of the EEOC‘s decision-making process where that process in turn directly determines whether an individual will be granted or denied tangible benefits within the Commission‘s power to disburse. At issue is the deference to be accorded the EEOC‘s decision whether or not to re-visit
Subsection (d) of
What is more, though judicial review of an EEOC reconsideration decision may identify previously undetected fraud, this gain in accuracy likely will be offset by a loss of administrative effectiveness. The EEOC argues that the court‘s ability to second guess Commission reconsideration decisions “will create uncertainty that will give charging parties and employers a strong incentive not to ask the Commission to reconsider its determinations, since they will not know whether or not such reconsideration will stop the 90 day clock.” Amicus Brief at 16. If parties do not ask for reconsideration when they legitimately believe their case deserves reconsideration, then the Commission will be deprived “of the opportunity to correct a mistaken determination it issued before the parties resort to the judicial forum.” Id. Allowing courts to infringe on the Commission‘s discretion to reconsider cause determinations can impede administrative resolution of discrimination claims by forcing premature litigation.
By refusing to recognize the Commission‘s revocation of the prior right to sue letter, the District Court, in effect, declared that the Commission is unable to protect itself against fraud by a charging party. Because judicial review of Commission reconsideration decisions serves neither the goals of Title VII nor principles of judicial economy, I would adopt a blanket rule insulating from judicial review Commission decisions to reconsider determinations as to reasonable cause. Once the Commission or an authorized official decides to reconsider a reasonable cause determination and so notifies the parties, the previous right to sue notice automatically would be revoked, in accordance with the
Because the plaintiff brought suit within 90 days of the issuance of the second right to sue notice, I would hold that the District Court erred in dismissing as time-barred
C. Merits
Proceeding to the merits, we affirm the District Court‘s dismissal of the plaintiff‘s Title VII claim, albeit on different grounds. In a Title VII employment discrimination case, the plaintiff bears the initial burden оf submitting evidence to support a prima facie case of discrimination. Texas Dep‘t of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981). More precisely, the plaintiff must produce “evidence sufficiently strong to raise an inference that [the employer‘s conduct was] racially motivated.” McKenzie v. Sawyer, 684 F.2d 62, 71 (D.C.Cir.1982). Reviewing the record, we find no facts from which to infer discriminatory treatment. We note in particular that the defendant hired another black woman shortly after notifying Ms. Jackson of her impending layoff. This fact strongly discredits the plaintiff‘s Title VII claim.12
In sum, the Title VII action was properly dismissed.
V.
For the foregoing reasons, we AFFIRM the District Court‘s dismissal of the plaintiff‘s
RALPH B. GUY, Jr., Circuit Judge, concurring in part and dissenting in part.
I agree with all of Judge Merritt‘s opinion, except Part IV B, from which I dissent. In Part IV B, Judge Merritt writes: “[T]he EEOC‘s decision to reconsider a cause determination, and the procedural consequences attaching to such a decision, should not be subject to judicial review.” In my view, we are not considering
WELLFORD, Senior Circuit Judge, concurring.
I concur in Judge Merritt‘s opinion except as to part IVB thereof. I am in agreement with Judge Guy‘s separate opinion that holds that EEOC‘s decision to reconsider, even if made within ninety days, is, under appropriate сircumstances, subject to judicial review. I likewise agree with Judge Guy that a district court judge retains the right to make the kind of determination which was reached in this case. I would affirm the district court‘s decision on this basis as well as for the other reasons given by Judge Merritt.
Finally, I would hold that under comparable circumstances where the basis for EEOC reconsideration is a claimant‘s unsubstantiated claim, not based upon newly discovered evidence, judicial review is appropriate to preclude an unwarranted extension of time, beyond the statutory scheme, in which to file a complaint.
Notes
The District Directors ... may, upon completion of an investigation, dismiss charges, make and issue determination as to reasonable cause, and serve a copy thereof upon the parties, and make and approve conciliation agreements in those cases where such authority has been delegated to them by the Commission.... The District Directors ... may, however, on their own motion, reconsider their determination at any time and, when they do so, they shall promptly notify the [affected parties] ... of their subsequent decision on reconsideration.
Section 1601.19b(d) (1976) differs from the 1984 and 1991 regulations in that it does not state that a decision to reconsider will revoke a previously issued right to sue letter. This difference, though, goes to agency procedure; it does not affect the substantive rights of the parties.