suggesting that failure to hire does not constitute continuing violation
How later courts described this case
- suggesting that failure to hire does not constitute continuing violation
- plaintiff contended that "... her employer had an established policy or practice of promoting to better paying jobs over qualified women, men with less seniority."
- challenge to entire promotion and pay system as discriminatory constituted continuing unlawful employment practice
- failure to promote and raise pay stated cause of action under continuing violation theory
Written by the judges who cited it.
The opinion
COLEMAN, Circuit Judge,
dissenting.
United Air Lines v. Evans,-U.S.-, 97 S.Ct. 1885 , 52 L.Ed.2d 571 , was a case in which an airline stewardess claimed that she was a victim of “continuing discrimination”. The Supreme Court held that an employer may treat as lawful any allegedly discriminatory act committed more than 180 days prior to the filing of the charge, although such conduct may be relevant background evidence in a proceeding in which the status of a current practice is at issue. The Court went on to say that if one is claiming continued discrimination then “the critical question is whether any present violation exists” [emphasis in the original text].
On that basis the judgment of the District Court in this case should be affirmed.
*1224 The critical issue is whether Mary Evelyn Clark was the victim of unlawful employer discrimination at the time she filed her complaint or within 180 days prior thereto. The EEOC held that there was no reason to believe that she was so discriminated against. The District Court agreed, and I would likewise agree.
From and after August 12, 1974, the plaintiff’s promotions and wages were governed by a settlement agreement entered into by the employer, the union, and the EEOC. The District Court had before it a deposition given by Mrs. Clark in which she admitted that the company had lived up to the 1974 agreement. She had been promoted to roll handler on September 8, 1974, to press operator helper on October 7, 1974, and to press operator on August 9, 1975. Her statements about men receiving promotions to which she had been entitled prior to September 5,1974, were highly tenuous and reflected nothing more than her personal opinion that she should have received earlier promotions and been making more money. This despite the fact that she had been formally reprimanded for excessive absenteeism in 1971, 1972, 1973, and 1974. She had been granted extensive leaves of absence in 1969, 1970, and 1975.
It is obvious that Mrs. Clark filed her EEOC complaint more than 180 days after the effective date of the agreement entered into between the company, her union, and the EEOC. That should dispose of the case.
But in addition to that, it seems crystal clear on this record that when she did file her complaint there was no presently existing violation. If none then existed, then none could have been continuing and that is all there is to the case.
We have a duty to enforce the mandates of the Constitution and of Congressional enactments against unlawful discrimination in employment. It is equally our duty, I think, not to detect discrimination when none is shown to have existed. Therefore, most respectfully, I would not require the District Court to spend any more time on this claim.
I must dissent.