Petition — Electrical Workers v. Robbins & Myers, Inc.

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TESTE SN oe AER ©

JURISDICTION wecccciscccssessenee a ae a

QUESTIONS PRESENTED .o..c.cccccssccsssccssscsssssssssscosses

STATUTORY PROVISIONS INVOLVED .............

STATEMENT OF THE CASE ....cccccscsssscssssssssssssssssees

REASON FOR GRANTING THE WRIT ...........0...

INTRODUCTION AND SUMMARY .......cccccsesesees

I. The Holding Of The Court Of Appeals That

Resort To Collectively Bargained Grievance

Procedures Does. Not Toll The Time Period

For Filing Charges With The EEOC Is Con-

trary To That Of Every Court Of Appeals

Which Has Considered The Issue And Incon-

sistent With Principles Enunciated Recently

Br Te IS antaieeensenstchinstnirctnintibicstinanenillnhinntinass 8

Il. The Decision Of The Court Of Appeals That

The 1972 Amendment Extending The Time

For Filing Title VII Charges Applies Only To

Occurrences Less Than 90 Days Before The

Effective Date Of The Amendment Is In Di-

rect Conflict With That Of Another Court Of

a 17

EEN CR a a eR es CE 19

APPENDIX A—Opinion of the Court of Appeals .. la

APPENDIX B—Order on Rehearing of the

ao ow SO we we eK

I ae Be eatelanticeoneitetstnisintsintisisiccnteemencinne 13a

APPENDIX C--Opinions of the District Court ........ l4a

APPENDIX D—Statutory Provisions Involved ...... 30a

i

Page

CASES:

Alexander v. Gardner-Denver Co., 415 U.S. 36 .......... passim

American Pipe and Construction Co. v. Utah,

a Fee Ce ies eenithniitenceniubineintiantibiiaanhieiidnaiinnsiaienai 15

Anderson v. Methodist Evangelical Hospital,

Se Fe Te eecihencnnsiapeusaitininastibiiinntnltininpinseaningrennnin 16

Bowe vy. Colgate-Palmolive Co., 416 F.2d 711 ............ 10

Burdzell v. Cities Service Co., 8 FEP Cases 467 ...... 9

Burnett v. New York Central R. R. Co., 380 U.S. 424 15

Bush v. Wood Bros. Transfer, Inc.

ee I Ti nv nininthisiteniniiesciasiicensiensinniniiindiines 16

Culpepper v. Reynolds Metals Co., 421 F.2d 888 ...... 8, 9, 16

Davis v. Valley Distributing Co., 522 F.2d 827 .... 6, 7, 17, 18

Dudley v. Textron, Inc., 386 F.Supp. 602 ..............04. 13

Emporium Capwell Co. v. Western Addition

Community Org., 420 U.S. 50 .........c.ccccccssorsessossvesees 7, 10,12

Hutchings v. U.S. Industries, Inc., 428 F.2d 308 ........ 10

Johnson v. REA, Inc., 421 U.S. 454 0.0.0.0... 5, 14, 15, 16

Love ¥. Pesllemate, 4B6 UB. GBB ...ccccoccccccsccccccccscccccccsessccces 16, 18

Malone v. North American Rockwell, 457 F.2d 779 .... 8,10

Moore v. Sunbeam Corp., 459 F.2d 811 ........cccecesceees 8, 9, 13

Olson vy. Rembrandt Printing Co., 511 F.2d 1228 ........ 16

Oubichon vy. North American Rockwell Corp.,

ee sicieisisnteieteitenscadlaiiabiaineiattttiiniaeiniiaiiatitasies 10

Reeb v. Economic Opportunity Atlanta, Inc.,

eg RRS RE Serr ren va ee 15

Richard v. McDonnell Douglas Corp., 469 F.2d 1249 .. 16

Roberts v. Lockheed, 11 FEP Cases 1440 ...........000...... 16

Sauchee v. T.W.A., 499 FD 1107 ....cccccccccccccccccccccccscoce 8,9

Schiff v. Mead Corp., 2 FEP Cases 1089 ..........cccccccc00 8

li

— ey, OT tee

Steelworkers v. Warrior & Gulf Nav. Co.,

SUN TITEL: AEPED <sitliiaccsitabspusedahtaiadniniahinensenanennenaninnseaaenieatin 12

oe OS OF RU 5, 15

Vigil vy. American Telephone & Telegraph Co.,

a ican dene henna ilpnenneadiadiininntaiiiide 16

Westinghouse Electric Corp., NURB Case No.

ND seaicccsceepptecuncneibtctepeniinniiiinnentiaiiniéion 11

STATUTES:

Civil Rights Act of 1866, 42 U.S.C. § 1981... eee 11, 14

qual Employinent Opportunity Act of 1972,

Pub. L. 92-261, 86 Stat. 103:

eT niiceecildansseienatbeniabantataliidddasbeannattisieciiapiaidnceiannatets 3, 6, 17, 18

Equal Pay Act, 29 U.S.C. 206(d) ..........00..cscssssssseroeees 11

Title VII of the Civil Rights Act of 1964, 78 Stat.

Sy SY Ts IID sinssiadensenssiiisouaeinsiennensdpensibcindatmnaeniiins passim

i TIED scnciadeallinicsadanncassensipsteivedieappnbietiniaeidiaiieibinintanes 3, 6, 17

Title VII of the Civil Rights Act of 1964, as

amended, 42 U.S.C. § 2000e et seq.:

SO BS RS ae 4

§ 706(e), 42 U.S.C. § 20000-5(@) ...cccccseeesnen 3, 6, 17, 18

MISCELLANEOUS:

Davis & Pati, Elapsed Time Patterns in Labor

Grievance Arbitration: 1942-1972,

Be es She ME Me CII ses iatatnaceidadateuieaddtinienapaniaeians 12

Federa! Mediation and Conciliation Service, T went y-

Seventh Annual Report, Fiseal Year 1974 ................ 12

Hammerman & Rogoff, The Union Role in Title VII

Enforcement, 7 Civil Rights Digest, No. 3, 22 ........ 11

Newman, Post-Gardner Developments in the

Arbitration of Discrimination Claims, Proceedings

of the 28th Meeting, National Academy of

I Es TEP ‘cicaipensnncterceransnetnnatatiodseieentiniicit 11

Supreme Court of the United States

October Term, 1975

INTERNATIONAL Union oF ELectrica, Rapio

AND Macuine Workers, AFL-CIO Locat 790,

Petitioner,

v.

Rossins & Myers, Inc., anv DortHua Guy,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Petitioner International Union of Electrical, Radio and

Machine Workers (‘‘IUE’’), AFL-CIO, Local 790 prays

that a Writ of Certiorari issue to review the judgment and

Opinion of the United States Court of Appeals for the

Sixth Cireuit entered in this case on October 24, 1975.

OPINIONS BELOW

The opinion of the Court \ppeals, reported at 525 F.2d

124, is attached to this petition as Appendix A (la-12a).

The Order of the Court of Appeals denying rehearing, en-

9

a

tered on December 9, 1975, is attached to the petition as

Appendix B (13a). The opinions of the District Court,

reported at 8 FEP Cases 309, 311 and 313, are attached to

this petition as Appendix C (14a-29a).

JURISDICTION

The judgment of the Court of Appeals was entered on

October 24, 1975. A timely petition for rehearing was denied

on December 9, 1975, and this petition for certiorari is filed

within ninety days of that date. This Court’s jurisdiction

is invoked under 28 U.S.C. § 1254(1).

QUESTIONS PRESENTED

1. Whether a union member may be denied access to the

administrative and judicial remedies for employment dis-

crimination provided by Title VII of the Civil Rights Act

of 1964 for failure to file a charge with the Equal Employ-

ment Opportunity Commission within the time limit set by

42 U.S.C. 2000e-5, if such a charge was filed within the

requisite time period as calculated from the final denial of a

grievance properly pursued under a collective bargaining

agreement in force?

2. Whether the 1972 Amendments to Title VII, extending

from 90 to 180 days the time for filing a charge with the

1EOC, rendered timely any charge before the EEOC on the

effective date of the Amendments and alleging discrimina-

tory acts less than 180 days before that date!

STATUTORY PROVISIONS INVOLVED

The following statutory provisions are attached hereto

as Appendix D (30a-31la) :

3

(1) Section 706(d) of the Civil Rights Act of 1964, 78

Stat. 259 (July 2, 1964).

(2) Section 706(e) of the Civil Rights Act of 1964, as

amended by the Equal Employment Opportunity Act of

1972, Pub. L. 92-261, 86 Stat. 103, 104 (March 24, 1972) (42

U.S.C. § 2000e-5(e) ).

(3) Section 14 of the Equal Employment Opportunity Act

of 1972, Pub. L. 92-261, 86 Stat. 103, 113 (March 24, 1972).

STATEMENT OF THE CASE

Dortha Guy is a black female who was employed by re-

spondent Robbins & Myers, Inc. (‘‘the Company’’) in Janu-

ary 1968. Soon after her employment she joined the peti-

tioner, Local 790 of the International Union of Electrical,

Radio, and Machine Workers (‘‘the Union’’), the exclusive

bargaining representative of employees in her unit. At the

time of the events which precipitated this lawsuit, Ms. Guy

was a union steward. In her capacity as steward, she filed

many grievances under the collective bargaining agreement

on behalf of her fellow employees.' And, during her employ-

ment with the Company, she filed on her own behaif at least

six grievances, some of which were adjusted in her favor.

On October 25, 1971, the Company discharged Ms. Guy.

' The collective bargaining agreement in force provided a three-

step grievance procedure for ‘* [a]ll differences, disputes and griev-

ances that may arise after the signing of this Agreement between

the Union, any employee or group of employees, and the company

concerning the application or interpretation of this agreement.’’

| Article X VIII—Grievance Procedure}. A fourth step, arbitration,

was provided for certain kinds of disputes.

4

A grievance protesting the ‘‘unfair action’’ of the Company

in discharging Ms. Guy was filed on October 27, 1971. There-

after, the Union processed the grievance through the first

three steps of the grievance procedure. The Company de-

nied the grievance at the third step on November 18, 1971,

and it was not pursued further.

On February 10, 1972—108 days after her discharge, but

less than 90 days after the completion of the grievance pro-

cedure—Ms. Guy filed charges of racial discrimination re-

lating to her discharge with the Equa] Employment Oppor-

tunity Commission (‘‘EEOC’’) against both the Company

and the Union. The EEOC determined that ‘‘the timeliness

and all other jurisdictional requirements have been met’’

(Determination, Case No. YME4-155), investigated the

charge, and issued a “right to sue’”’ letter on November 29,

1973. Ms. Guy then instituted this lawsuit under 42 U.S.C.

§ 2000e-5.

The Company moved to dismiss on the ground that Ms.

Guy’s EEOC charge had not been filed within 90 days of

her discharge. The district court granted the motion. Noting

that Ms. Guy’s charge was filed 108 days after her dis-

charge, and that at the time of the discharge the time limit

for filing EEOC charges was 90 days, the court held that

it was without jurisdiction to adjudicate her Title VII

claim (J4a). While recognizing that several courts of

appeals had held that the time for filing an EEOC charge

is tolled during the pendency of a formal grievance pursued

in accord with a collective bargaining agreement, and that

Ms. Guy’s charge had been filed less than 90 days after

completion of the grievance procedure, the district court

viewed Alexander vy. Garduer-Denver Co., 415 U.S. 36, as

5

precluding such. tolling (22a-24a). The district court noted

that Title VII was amended effective March 24, 1972 to

extend the time for filing EEOC charges to 180 days from

the date of the alleged discriminatory act, an extension

which if applicable would have rendered Ms. Guy’s charge

timely without the need for tolling, but regarded that

amendment as inapplicable to this case * (20a). See note 3,

infra.

l’oliowing the district court’s dismissal of the suit against

the Company, the Union moved to be realigned as a party

plaintiff for purposes of appeal, noting that the Union had

negotiated the grievance procedure on behalf of its members

and “is interested to see that its members’ rights to their

contractual grievance procedure is maintained and pro-

tected.’’ This motion was granted, and the Union and Ms.

Guy each appealed.

On October 24, 1975 the court of appeals affirmed the dis-

missal of the suit against the Company. On the tolling ques-

tion, it reasoned that since Title VII ‘‘creates a right and

liability which did not exist at common law and prescribes

the remedy[,] [t]he remedy is an integral part of the right

and its requirements must be strictly followed,’’ citing The

Harrisburg, 119 U.S. 199, 214 (4a-5a). Thus, the court held

that it was powerless to toll the statutory period even if

tolling would effectuate Title VII’s underlying policies. The

court also thought that Alexander, supra, and Johnson v.

REA, Inc., 421 U.S. 454, with their emphasis upon the in-

dependence of Title VII from other legal routes to relief

* Ms. Guy’s discharge occurred 150 days prior to the effective

date of the 1972 amendment. On the effective date, her charge was

before the EEOC.

6

from employment discrimination, counseled against tolling

Title VU time limitations to permit the effective pursuit of

grievance procedures (4a).

The court of appeals also addressed the question of the

effect of the 1972 amendments, a question raised in that

court by the EEOC appearing as amicus curiae.* The court

held the 1972 amendments extending the time to file EEOC

charges to 180 days, effective March 24, 1972, cannot apply

to this case, since ‘‘Guy’s claim was barred on January 24,

1972”’ and ‘** [t]he subsequent increase of time . . . could not

revive plaintiff’s claim.’* (8a-9a). Judge Edwards, dissent-

ing on this point, noted that the Ninth Cireuit, in Davis v.

Valley Distributing Co., 522 F.2d 827 (9th Cir. 1975), had

recently held that ‘‘the extended limitations period [ap-

plies] to all unlawful practices that occurred 180 days be-

fore the enactment of the 1972 Act, ineluding those other-

wise barred by the prior 90-day limitations period.’’ (522

F.2d, st 8380; 10a). Judge Edwards would have remanded

to the district court to consider the Davis rationale and its

applicability to the present case (12a).

REASON FOR GRANTING THE WRIT

INTRODUCTION AND SUMMARY

The first holding below—that the pendency of a grievance

does not toll the time limit for filing an EEOC charge—is

* The court of appeals believed it was not compelled to address

this argument since it had not been raised below (8a). Nonethe-

less, it did reach the issue and decide it. Although the effect of the

1972 amendment was not expressly discussed by the parties in the

district court, that court was aware of the amendment but decided

it was inapplicable to this case. See p. 5, supra.

7

in direet conflict with the decisions of every other court of

appeals which has considered the question—the Fifth Cir-

cuit, the Seventh Circuit, the Ninth Cireuit, and the Tenth

Cireuit. Moreover, that holding is inconsistent with prin-

ciples enunciated in Alexander vy. Gardner-Denver Co., 415

U.S. 36, for it would hamper the effectiveness of grievance-

arbitration procedures and could discourage employees

from pursuing such procedures to finality before filing

charges with the EEOC. Alexander recognized the impor-

tance of grievance-arbitration procedures as a method of

resolving employment disputes which might otherwise be-

come the subject of Title VII complaints, and explained

that Title VII must be construed so as not to compromise

the functioning of such procedures or discourage resort to

them. See also Emporium Capwell Co. v. Western Addition

Community Org., 420 U.S. 50.

The second holding of the court below, that the 1972

amendment enlarging the time for filing charges with the

EEOC does not apply to charges concerning acts which

occurred more than 90 but less than 180 days before March

24, 1972, is directly contrary to the decision of the Ninth

Circuit in Davis v. Valley Distributing Co., 522 F.2d 827

(9th Cir. 1975).

Both issues are of great importance to the enforcement

of Title VII. Indeed, the resolution of the tolling issue

could ave a vital impact upon the viability of the gricev-

ance-arbitration procedures as an effective forum for the

resolution of employment discrimination claims. In view of

the direct conflict among the Circuits on both issues, and

the infidelity of the decision below to principles enunciated

by this Court, certiorari should be granted.

Tue Hoping Or Tue Court Or Appeats Tuat Resort To

COLLECTIVELY BarGAinep GRIEVANCE Procepures Dogs

Nor Toit Tue Timk Pertop For Fmixe Cxarces Wit

Tue EEOC Is Contrary To Tuat Or Every Court Or

Aprrats Wuicu Has Consiperep Tue Issue Anp Iy-

CONSISTENT Wrrn PrincripLes Exunctatep Recentiy By

Tuts Court.

1. Every other court of appeals which has considered

whether resort to a collectively bargained grievance pro-

cedure tolls the time limit for filing a related employment

discriminatign charge with the EEOC has concluded th «:

it does. Culpepper v. Reynolds Metals Co., 421 F.2d 888

(Sth Cir. 1970); Malone v. North American Rockwell, 457

F.2d 779 (9th Cir. 1972); Moore v. Sunbeam Corp., 459

F.2d 811 (7th Cir. 1974), Sanchez v. T.W.A., 499 F.2d 1107

(10th Cir. 1974).4 This result has been seen as effectuating

Title VII’s preference for private resolution of employ-

ment discrimination claims. As the Fifth Cireuit explained

in Culpepper:

‘*This court has held many times that Title VII should

receive a liberal construction while at all times bearing

in mind that the central theme of Titl VII is ‘private

settlement’ as an effective end to employment discrimi-

nation. In Oatis v. Crown Zellerbach (5 Cir., 1968), 398

F.2d 496, this court held that:

‘It is thus clear that there is great emphasis in Title

VII ou private settlement and the elimination of un-

fair practices without litigation.’

'Tndeed, the Sixth Circuit itself seems to have adhered to this

rule in the past. Schiff v. Mead Corp,, 2 FEP Cases 1089 (6th Cir.

1970).

9

This view was again voiced in Jenkins v. United Gas

Corporation (5 Cir., 1969) 400 F.2d 28, where this court

stated that:

‘* * * EEOC whose function is to effectuate the Act’s

policy of voluntary conference, persuasion and con-

ciliation as the principal tools of enforcement.’

It would, therefore, be an improper reading of the pur-

pose of Title VII if we were to construe the statute as

did the district court to permit the short statute of

limitations to penalize a common employee, who, at

no time resting on his rights, attempts first in good

faith to reach a private settlement without litigation

in the elimination of what he believes to be an unfair,

as well as an unlawful, practice.’’ (421 F.2d, at 891.)

The court below believed that the force of this analysis

has been undermined by this Court’s decision in Alexander,

supra, holding that arbitration decisions are neither bind-

ing nor necessarily entitled to deference in Title VII cases.

But the Sixth Circuit is the only court of appeals to per-

ceive any inconsistency between the Alexander decision

and a ruling tolling the time for filing a Title VII charge

while grievance-arbitration proceedings are pursued.®

2. Indeed, it is the decision below which is unfaithful to

the principles enunciated in Alexander. This Court in Alez-

5 Subsequent to Alexander, the Tenth Circuit squarely held that

the time for filing EEOC charges is tolled by pursuit of a griev-

ance. Sanchez v. TWA, 499 F.2d 1107 (10th Cir. (1974). See also

Burdzell v. Cities Service Co., 8 FEP Cases 467 (W.D. Pa. 1974),

regarding Alerander as supporting tolling. Prior to Alexander

three Cireuits which had correctly anticipated the holding in Alez-

ander simultancously adhered to the view that pursuit of grievance

procedures tolls the time for filing EEOC charges. Compare, Cul-

pepper, supra (Sth Cir. 1970) ; Moore, supra (7th Cir. 1972) ; and

—

10

ander recognized that Title VII’s policy favoring voluntary

compliance with employment discrimination laws was fur-

thered by preserving arbitration as an effective remedy for

employees’ grievances. The Court noted that a rule requir-

ing courts in Title VII lawsuits to defer to arbitration re-

sults:

‘‘might adversely affect the arbitration system as well

as the enforcement scheme of Title VII. Fearing that

the arbitral forum cannot adequately protect their

rights under Title VII, some employees may elect to

bypass arbitration and institute a lawsuit. The pos-

sibility of voluntary compliance or settlement of Title

VII claims would thus be reduced, and the result could

well be more litigation, not less.’’ (415 U.S., at 59).

(‘onsequently, the Court declared ‘‘the federal policy fav-

oring arbitration of labor disputes and the federal policy

against discriminatory employment practices can best be

accommodated by permitting an employee to pursue fully

both his remedy under the grievance arbitration clause of

a collective-bargaining agreement and his cause of action

under Title VII,’’ (Id., at 59-60), and held ‘‘that an indi-

vidual does not forfeit his private cause of action if he first

pursues his grievance to final arbitration under the non-

discrimination clause of a collective-bargaining agree-

ment.’’ (/d. at 49, emphasis added).

This holding was reaffirmed in Emporium Capwell Co. v.

Western Addition Community Org., 420 U.S. 50, where the

Court noted that arbitration is often an efficacious remedy

Malone, supra (9th Cir. 1972) with Hutchings v. U.S. Industries,

Tne., 428 F.2d 303 (5th Cir. 1970) ; Bowe v. Colgate-Palmolive Co..,

416 F.2d 711 (7th Cir. 1969) ; Oubichon v. North American Rock-

well Corp., 482 F.2d 569 (9th Cir. 1973), noted in Alexander,

supra, 414 U.S, at 45 n.5, as consistent with Alerander.

11

for employment discrimination, including charges of the

‘pattern and practice’’ variety (id., at 66 & n. 18). Indeed,

the LUE which, to vindicate the rights of its female and

minority members, has vigorously pursued all of the alter-

natives open to parties claiming that there has been dis-

crimination on the basis of race, color, sex, or national

origin, has found that grievance-arbitration procedures

often prove to be the most expeditious and effective way to

remedy employment discrimination, although it has filed

charges with the EEOC, the Labor Department and the

NLRB and instituted lawsuits under Title VII, 42 U.S.C.

§ 1981, and the Equal Pay Act, 29 U.S.C. 206(d), when the

employer has refused to correct discrimination through col-

lective bargaining or the grievance-arbitration procedures.

See Westinghouse Electric Corp. NURB Case No, 6-CA-

7680, JD-86-76 (Feb. 17, 1976), pp. 8-9, 11, 21-22, 24-27, de-

scribing the broad range of the I[UE’s equal opportunity

enforcement program. Because of its belief in the grievance-

arbitration mechanism as perhaps the best alternative for

routing out employment discrimination efficiently and ef-

fectively, the IUE has begun exploring in collective bar-

gaining the possibilities for novel grievance-arbitration

procedures adapted precisely to employment discrimination

complaints, and has drafted model contract provisions gov-

erning arbitration of employment discrimination claims.

Id.; Hammerman & Rogoff (special assistants to the Direc-

tor of Compliance of the EEOC), The Union Role in Title

VII Enforcement, 7 Civil Rights Digest, A Quarterly of the

U.S. Commission on Civil Rights, No. 3, pp. 22, 27-28; New-

man, Post-Gardner Developments in the Arbitration of

Discrimination Claims, Proceedings of the 28th Meeting,

12

National Academy of Annual Arbitrators, pp. 36, 57 (1975).

In Emporium Capwell, supra, the Court stated that

‘‘even if the arbitral decision denies the putative diserimi-

natee’s complaint his aecess to the processes of Title VII

and thereby to the federal courts is not foreclosed. Alex-

ander v. Garduer-Denver Co., supra.’’ 420 U.S., at 66 n. 18.

However, while the grievance-arbitration procedure pro-

vides the fastest method for resolving discrimination

claims, the period of time from the occurrence upon which

a grievance is based to an arbitration hearing or to the

arbitration award can well be more than 180 days.* Thus,

unless the time period for filing an EEOC charge is tolled

while grievance procedures go forward, the efficacy of the

grievance-arbitration remedy for employment discrimina-

tion-related claims, and the possibility of improving those

procedures with regard to such claims, will be severely com-

promised, and employees may well be ‘‘foreclosed’’ from

Tithe VII processes and the courts after an adverse arbi-

tration decision.

‘The grievance machinery under a collective bargaining

agreement is at the very heart of the system of industrial

self-government [,| * * * the means of * * * molding a sys-

tem of private law.”’ Steelworkers v. Warrior & Gulf Nav.

('v,, 363 U.S. 574, 581." If an employee, in order to preserve

® Federal Mediation and Conciliation Service, Twenty-Scventh

Annna’ Report, Fiseal Year 1974, at 48; Davis & Pati, Elapsed

Time Patterus in Labor Grievance Arbitration: 1912-1972, 29 Arb.

J. 15, 21 (1974).

*The courts which have recognized a rule tolling the time for

filing a Tithe VII charge during the pendency of a grievance pro-

ceeding have uniformly, and in our view correctly, applied the rule

only when a formal, pre-determined set of procedures acceded tu

13

his Title Vil action, were compelled to file a complaint with

a government agency while the grievance-arbitration pro-

cedure was in process, the motivation for amicable, private

settlement would then disappear, and the parties would in-

stead look toward protecting their positions should litiga-

tion ensue. The likelihood of a conclusion to the grievance

procedures satisfactory to all concerned would then greatly

jiminis}

Further, employees faced with the prospect that the

deadline on their EEOC charge could run out while the

grievance-arbitration procedure was in process, as the

sources cited above, n. 6 supra, show is quite possible, could

well choose to forego their contractual remedy for fear of

losing their Title VII rights. The result in either case will

be ‘‘more litigation, not less,’’ Alexander, supra, and a

burdening of the already over-taxed EEOC and federal

courts with disputes which might be settled in the griev-

ance-arbitration forum unions have negotiated for their

members.

On the other hand, many union members will determine

to pursue at first only the grievance procedure, with which

they are familiar and which may have worked for them in

the past. See p. 3, supra. These employees could, under the

holding below, be precluded from any Title VII remedy

should the grievance-arbitration procedure fail to produce

satisfactory results, since such procedures can well, as

noted above, run beyond the time limit for filing Title VII

in advance by the employer was invoked, and not when plaintiff

claimed they had made ad-hoc attempts, outside of any agreed-upon

procedure, to discuss or to settle the claim. See, ¢.g., Moore v. Sun-

beam Corp., supra, 459 F.2d, at 827; Dudley v. Textron, Inc., 386

F.Supp. 602 (E. D. Pa. 1975).

14

charges if pursued to their conclusion. Such a result would

be in direet conflict with Alerander, which stresses that

Congress intended to allow employees to pursue both con-

tractual and Title VII remedies.”

3. The court below also misconstrued Johuson v. REA,

Juc., 421 U.S. 454, as casting doubt upon the grievance-

tolling rule adopted by all other circuits. Johnson held that

the time for filing a suit under the Civil Rights Act of 1866

(42 U.S.C. 4 1981)—a time period determined by reference

to analogous state statutes of limitation-—is not tolled by

the filing of a charge with the EEOC. The issue in this case,

however, is not (as it was in Johnson) whether one statu-

tory route for judicial relief regarding employment dis-

crimination is to be adjusted by tolling to accommodate an

entirely separate Congressional scheme for providing such

relief. Rather, the question is whether the policies under-

lying Title VII itself, which, as Alexander recognized, pre-

ter voluntary settlement without litigation, dictate tolling

Title VII time limits to preserve the grievance-arbitration

forum as an effective means to voluntary settlement.

The court of appeals believed that it was powerless to

accommodate Title VII’s underlying policies by tolling time

limits contained in that statute. It relied upon the proposi-

tion that if a federal statute creating a new right contains

time limitations upon the assertion of that right, a court

may not create exceptions to that limitations period as

*The court below pointed to a passage in Alerander requiring

‘timely’ filing of an EEOC charge as necessitating its decision

(Sa.). Obviously, the Alerander court did not purport to determine

What constitutes **timely’” filing, and under our approach a charge

would have to be ‘timely’? as calculated from the conclusion of

rievance-arbitration proceedings.

15

it may do with an ordinary statute of limitations, citing

The Harrisburg, 119 U.S. 199, and Johnson, supra. But

this Court, in American Pipe and Coustruction Co. v. Utah,

414 U.S. 538, noting the precise passage from The Harris-

burg on which the court of appeals relied, held that ‘‘the

mere fact that a federal statute providing for substantive

liability also sets a time limitation upon the institution

of suit does not restrict the power of the federal courts to

hold that the statute of limitations is tolled under certain

circumstances. not inconsistent with the legislative pur-

pose.’’ (/d., at 730.)*° And, in Johnson the Court explicitly

noted a distinction between the situation before it and

One, as here, in which the limitations period was ‘‘derived

directly from federal statutes rather than by reference to

State law,’’ 421 U.S., at 466, and suggested that in the

latter situation a more flexible approach to the limitations

period is warranted. Jd.

Indeed, Johnson explicitly recognized that statutes of

limitation can be tolled if to do otherwise ‘‘would be incon-

sistent with the federal policy underlying the cause of

action under consideration.’’ Id., at 465 (emphasis sup-

plied).'® 1t held only that the policy presuppositions under-

lying 42 U.S.C. § 1981 did not dictate tolling for pursuit of

* American Pipe limited the holding of The Harrisburg to the

situation in which both the right and the statute of limitations

sought to be relied upon in federal court were state-created. (1.,

at 729; see also Burnett v. New York Central R. R. Co., 380 US.

424).

” Consistently with Americun Pipe, supra, and Johnson, the

courts of appeal have generally held that exceptions to the literal

time limits for filing EEOC charges may be allowed where appro-

priate to vindicate the fundamental policies of Title VII. Reeb v.

16

administrative remedies. Since, as Alexander demonstrates,

discouraging or rendering ineffective the pursuit of griev-

ance-arbitration procedures would frustrate the scheme of

Title Vil, to reject tolling in the present situation would be

inconsistent with, rather than an effectuation of, the John-

son rationale.”

4. In sum, the holding of the court below, that pursuit

of a grievance does not toll Title VI1’s time limit for filing

KEOC charges, conflicts with the decisions of all other Cir-

cuits which have ruled on the question, is unfaithful to the

policies of Title VII as elucidated by this Court in Aler-

ander, and is premised upon a misunderstanding of the

decision of this Court in Johnson. Since the result reached

could undermine the effectiveness of grievance-arbitration

procedures in many situations, and in others could preclude

resort to the courts under Title VII, it is of great day-to-

day importance in American industrial life, and this Court

should grant certiorari to resolve the conflict.

Economie Opportunity Atlanta, Inc., 516 F.2d 927 (Sth Cir. 1975) ;

Vigil v. American Telephone & Telegraph Co., 455 F.2d 1222 (10th

Cir. 1972) ; Anderson v. Methodist Evangelical Hospital, 464 F.2d

723 (6th Cir. 1972); Richard v. McDonnell Douglas Corp., 469

F.2d 1249 (8th Cir. 1972). See also Olson v. Rembrandt Printing

Co., 911 F.2d 1228 (8th Cir. 1975). Cf. Love v. Pullman, 404 U.S.

522.

"At least one district court has held that this Court’s decision

in Johuson is inapposite to the instant situation and has continued

to apply a tolling rule for Title VII charges for the period of pen-

dency of grievance proceedings. Bush v. Wood Bros. Transfer, Inc..

11 FEP Cases 113 (S.D. Tex. 1975). Contra, Roberts v. Lockheed,

11 FEP Cases 1440 (C.D. Calif. 1975). The Fifth Circuit has con-

tinued to rely upon the Culpepper rule since this Court’s Johnson

decision. Reeb v. Economic Opportunity Atlanta, Ine., 516 F.2d

924, 927 (Sth Cir. 1975).

17

II.

Tue Decision Or Tue Court Or Appears Tuat Tue 1972

AMENDMENT Extenpinc Tue Time For Fuuine TritTiz

VII Cuarces Apriies Onty To Occurrences Less Tan

90 Days Berore Tue Errective Date Or Toe AMEND-

MENT Is In Dmectr Conriict Wits Tuat Or ANOTHER

Court Or APPEALS.

Kven if tolling were not allowable, Ms. Guy’s charge was

timely if the 1972 amendment extending the filing period

from 90 to 180 days applied to alleged acts of discrimina-

tion occurring within 180 days of its effective date, since

Ms. Guy’s discharge occurred 150 days before the effec-

tive date of the 1972 amendment.

On this issue, the decision below—that charges barred by

the 90 days time limit could not be rejuvenated by the 1972

amendment—is in square conflict with that of the Ninth

Circuit in Davis v. Valley Distributing Co., 422 F.2d 827

(9th Cir. 1975). While the Davis court noted that generally

‘‘subsequent extensions of a statutory limitations period

will not revive a claim previously barred,’’ it abjured the

wooden approach of the court below to this issue and main-

tained that ‘‘the question is one of legislative intent.’’ Id.,

at 830. As the Davis court noted, § 14 of the 1972 Act explic-

itly provided that amendments to §706, of which the

amendment extending the time for filing charges to 190

days was one, were to be applicable to all charges ‘‘pend-

ing’’ before the EEOC on the effective date of the Act,

March 24, 1974, and all charges ‘‘filed’’ thereafter. After a

careful review of the legislative scheme and its history, the

Davis court could perceive ‘‘no substantial reason for giv-

18

ing less than their full meaning to the words of section 14°’

(id., at 831) and concluded that ‘‘Congress intended the ex-

tended limitations period to apply to all unlawful practices

that oecurred 180 days before the enaetment of the 1972

Act, including those otherwise barred by the prior 90-day

limitations period.’’ Id., at 830.

There is no distinction between Davis and this case of

any conceivable relevance. In both cases the charge was first

filed with the EEOC more than 90 days after the occurrence

complained of and before the effective date of the 1972

amendment. In both cases, the charge would have been

timely within the literal language of 414 if first ‘‘filed’’

after March 24, 1972," and ‘‘t[o] require a second ‘filing’

*** would serve no purpose other

than the creation of an additional procedural technicality.’’

Love v. Pullman, 404 U.S. 522, 527. Therefore, by analogy

to Love, the EEOC was entitled to ‘‘properly hold [the]

complaint in ‘suspended animation’, automatically filing it

upon [the effective date of the 1972 Amendments].’’ Id., at

526. Alternatively, since the EEOC had not dismissed the

charge prior to March 24, it was ‘‘pending’’ on that date

and is within the literal language of £14 on that basis.

by the aggrieved party

!

In Davis, the EEOC charge, first filed on March 14, was

referred to a state agency because the complainant had failed to

exhaust his state remedies and was consequently not considered

formally filed until after March 24. Here, all procedural pre-

requisites to EEOC consideration were complied with before the

charge was filed on February 10, and referral was unnecessary.

Surely, Ms. Guy cannot be prejudiced by the fact that she had

not failed, as Davis had, to meet Title VII’s procedural prereq-

uisites.

19

CONCLUSION

lor the foregoing reasons, a writ of certiorari should

issue to review the judgment and opinion of the court of

appeals.

Respectfully submitted,

Wise Newman

Ruta Weyanp

1126 Sixteenth St., N.W.

Washington, D.C. 20036

J. ALBERT WoLi

815 Fifteenth St., N.W.

Washington, D.C. 20005

MicuaEL GoTresMAN

1000 Connecticut Ave., N.W. #1300

Washington, D.C. 20036

la

APPENDIX A

Nos. 74-2144 and 74-2145

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Dortua ALLEN Guy

and

INTERNATIONAL Union oF ELeorricat,

Rapto anp Macurve Workers, AF'L-| AppzAL from United

CTO Looat 790, States District

Plaintiff-Appellants,p Court for the

- Western District of

; Tennessee.

Rospins & Myers, Inc.

(Hunter Faw Division),

Defendant-A ppellee.:

Decided and Filed October 24, 1975

Before Weick, Epwarps and Peck, Circuit Judges

Weick, Circuit Judge, delivered the opinion of the Court,

in which Prcx, Cireuit Judge, joined. Epwarps, Circuit

Judge, (pp. 9a-12a) filed a separate dissenting opinion.

Weick, Cireuit Judge. Appellant Guy has appealed from

an order of the District Court dismissing her complaint for

wrongful discharge brought under Title VII of the Civil

Rights Act of 1964, as amended, 42 U.S.C. § 2000e et sey.

and 42 U.S.C. § 1981. She claimed that her employer dis-

charged her on account of her race (Negro).

The District Court granted the defendant’s motion to

dismiss her Title VIT claim on the ground that plaintiff had

2a

not met the jurisdictional prerequisites of 4 2000e-5(d) of

the Act which were in force at the time.’ The Act reyuired

her to file a charge with the Equal Employment Opportunity

Commission (KEOC) within 90 days from the date of her

discharge. She did not file the charge until after the lapse

of 108 days.

The District Court dismissed her claim for violation of

§ 1981 of 42 U.S.C. on the ground that it was barred by the

one-year Tennessee statute of limitations. Tenn. Code 28-

304.

It was Guy’s contention that the 90-day requirement of

the Act was tolled during the pendency of a grievance which

she had filed with her employer under the provisions of a

collective bargaining agreement entered into between her

employer and the defendant labor Union.

The sole appellate issue is whether the filing of the griev-

ance tolled the jurisdictional requirements of the Act.

Guy’s claim under 42 U.S.C. § 1981 was controlled by our

decision in Johnson v. Railway Express Agency, Inc., 489

I’.2d 525 (6th Cir. 1973), which was affirmed by the Supreme

'**(d) A charge under subsection (a) of this section shall be

filed within ninety days after the alleged unlawful employment

practices occurred. Except that in the case of an unlawful employ-

ment practice with respect to which the person aggrieved has fol-

lowed the procedure set out in subsection (b) of this section, such

charge shall be filed by the person aggrieved within two hundred

and ten days after the alleged unlawful employment practice or

within thirty days after receiving notice that the State or local

agency has terminated the proceedings under the State or local

law, whichever is earlier, and a copy of such charge shall be filed

by the Commission with the State or loeal agency.”’

3a

Court on May 19, 1975, 95 S.Ct. 1716 (1975). Guy has not

appealed from this ruling and it has become final.

The Union originally was a party defendant but was dis-

missed by agreement with the plaintiff and has been re-

aligned as a party plaintiff.

The facts pertaining to the Title VII issue were not in

dispute. Guy was discharged on October 25, 1971 for failing

to report for work following an authorized sick leave. A

co-worker filed a grievance for her with the employer on

October 27, 1971 which stated: ‘‘Protest unfair action of

company for discharge. Ask that she be reinstated with

compensation for lost time.’’ She did not explicitly claim

racial discrimination. Guy processed her grievance to the

third step under the collective bargaining agreement. The

company rejected the grievance on November 18, 1971. Guy

decided not to proceed further to arbitration. Instead she

filed a charge with EEOC on February 10, 1972 which was

108 days from the date of her discharge.

The EEOC, although finding no evidence of racial dis-

crimination, granted a right to sue letter which resulted in

the filing of the present suit.

The District Judge was of the opinion that this case was

controlled by the recent decision of the Supreme Court in

Alexander v. Cardner-Denver Co., 415 U.S. 36 (1974).

While the specific holding in Gardner-Denver was that

the adverse decision of an arbitrator did not foreclose resort

by the grievant to her federal remedy, tle reasoning of the

court, in our judgment, supports the proposition that the

filing of a grievance under a collective bargaining agree-

4a

ment does not toll the limitation period of an applicable

federal or state statute.

The court pointed out that ‘‘in instituting an action under

Title VII the employee was not seeking to review an arbi-

trator’s decision but was asserting a right independent of

the arbitration process.’’

The court referred to the legislative history which indi-

cated Congressional intent that an employee could pursue

any remedy which he may have under state or federal law.

Thus, the employee could file proceedings under the Nation-

al Labor Relations Act or with other federal, state or local

agencies or pursue contractual remedies. In Johnson v.

Railway Express Agency. supra, the court held that the

various remedies are ‘‘separate, distinct and independent.”’

[It would be utterly inconsistent with the thesis of Gard-

ver-Denver and Railway Express Agency to hold that the

pursuit of any of these remedies operates to toll other rem-

edies which the employee has a right to resort to concur-

rently. See the statements of Senators Humphrey and Dirk-

sen reported in 11 Cong. Rec. 12297 and quoted in Banks v.

Local Union, 136 Int’l Bhd, Elec. Eng’rs, 296 F.Supp. 1188

(N.D. Ala. 1968).

In Tennessee, Civil Rights remedies are not provided by

state or local law.

Subsection 5(d) of the Act contains an exception when

the grievant has availed himself of remedies provided by

state or local Civil Rights agencies and in such a ease

extends the time for filing a charge with EEOC from 90

days to 210 days after the unlawful employment practice

or within 30 days after receipt of notice of termination of

5a

state or local proceedings, whichever is earlier.

Guy would have us add another exception to the Act to

toll the limitations’ period of 90 days when the grievant

resorts to a contractual remedy under a collective bargain-

ing agreement.

We are not persuaded that we should add additional ex-

ceptions not authorized by Congress.

But most important is the language of Mr. Justice Powell

who wrote the unanimous opinior of the court in Gardner-

Denver at 47:

... It does, however, vest federal courts with plenary

powers to enforce the statutory requirements; and it

specifies with precision the jurisdictional prerequisites

that an individual must satisfy before he is entitled to

institute a lawsuit. In the present case, these prerequi-

sites were met when petitioner (1) filed timely a charge

of employment discrimination with the Commission,

and (2) received and acted upon the Commission’s stat-

utory notice of the right to sue. 42 U.S.C. §§ 2000e-5

(b), (e) and (f).

This is a clear pronouncement that the 90-day limitation

period in the Act for filing a charge with EEOC is a juris-

dictional prerequisite ‘‘that an individual must satisfy be-

fore he is entitled to institute a lawsuit.’’ Here Guy ad-

mittedly did not meet the jurisdictional prerequisite.

The limitation in Title VII is more than a mere statute of

limitations. The Act creates a right and liability which did

not exist at common law and prescribes the remedy. The

remedy is an integral part of the right and its requirements

must be strictly followed. If they are not, the right ends.

As early as 1886 the Supreme Court recognized the dis-

tinction between a statute of limitation and a limitation con-

tained in a statute creating liability and imposing a remedy.

In The Harrisburg, 119 U.S. 199, 214, the court stated:

... [Wle are entirely satisfied that this suit was

hegun too laie. The statutes create a new legal liability,

with the right to a suit for its enforcement, provided

the suit is brought within twelve months, and not other-

wise. The time within which the suit must be brought

operates as a limitation of the liability itself as created,

and not of the remedy alone. It is a condition attached

to the right to sue at all....

In Matheny v. Porter, Price Adm’r, 158 F.2d 478, 479

(10th Cir. 1946), the court said:

... Ordinarily, a statute of limitation does not confer

any right of action, but merely restricts the time within

which the right finding its source elsewhere may be

asserted. It is not a matter of substantive right. It

neither creates the right nor extinguishes it. It affects

only the remedy for the enforcement of the-right. And

unless it affirmatively appears from the face of the com-

plaint that the cause of action is barred by the appli-

cable statute, limitation must be presented by special

plea in defense... .

But here, section 205(e) creates a new liability, one

unknown to the commen law and not finding its source

elsewhere. It creates the right of action and fixes the

time within which a suit for the enforcement of the

right must be commenced. It is a statute of creation,

and when the period fixed by its terms has ruy, the

substantive right and the corresponding liability end.

Not only is the remedy no longer available, but the right

of action itself is extinguished. The commencement of

7a

the action within the time is an indispensable condition

of the liability. Cf. The Harrisburg, 119 U.S. 199, 7

S.Ct. 140, 30 L.Ed. 358; Midstate Horticultural Co.,

Ine. vs. Pennsylvania R. Co., 320 U.S. 356, 64 S.Ct. 128

88 L.Ed. 96.

In Callahan vy. Chesapeake & O. Ry. Co., 40 F.Supp. 353,

304 (E.D. Ky. 1941), District Judge Mae Swinford stated:

‘*The rule is stated in the syllabus from Morrison v.

Baltimore & Ohio Railroad Company, 40 App. D.C. 391,

Ann. Cas. 1941C, page 1026, as follows: ‘‘Under the

Federal Employers’ Liability Act of June 11, 1906

(Fed. St. Ann. 1909 Supp. p. 585) the time within which

the suit must be brought operates as a limitation of the

liability itself as created, and not of the remedy alone.

It is a condition attached to the right to sue at all.

Time has been made of the essence of the right, and

the right is lost if the time is disregarded. The liability

and the remedy are created by the same statute, and

the limitations of the remedy are therefore to be treated

as limitations of the right.’’

Johnson v. Railway Express Agency, supra, held that .ne

timely filing of a charge with EEOC under Title VII of the

Act did not toll Tennessee’s applicable one-year statute of

limitations. [It would therefore appear to us to be utterly

incongruous for us to hold that a federal statute which con-

tains jurisdictional prerequisites for the exercise of its

remedies is tolled by the mere filing of a grievance under a

collective bargaining agreement.

Under Guy’s contention the exercise of rights under Title

VII could be delayed indefinitely for many years while an

individual is pursuing other remedies. This contention con-

fliets with Congressional intent made manifest by the short

8a

periods of time provided in the Act as prerequisites for the

exercise of the rights.

Guy relies on the following decisions from other Circuits :

Culpepper v. Reynolds Metals Co., 421 F.2d 888 (Sth Cir.

1970) ; Hutchings v. U.S. Industries, Inc., 428 F.2d 303 (Sth

Cir. 1970) ; Malone v. North American Rockwell Corp., 457

F.2d 779 (9th Cir. 1972); Sanchez v. T.W.A., 499 F.2d 1107

(10th Cir. 1974).

It is noteworthy that all of these cases, except Sanchez,

were decided prior to Gardner-Denver and hence are inap-

posite. Sanchez relies on these prior decisions. Sanchez

conflicts with Johnson v. Railway Express Agency, supra.

In the brief of EEOC as amicus curiae a new issue is

injected into the case which was not raised by plaintiff in

the District Court, namely, that under the 1972 amendments

to Title VII it had authority to assume jurisdiction retro-

actively to charges pending before the Commission. It relies

on Love v. Pullman Co., 404 U.S. 522 (1972).

Since this issue was not raised in the District Court by

any party to the case, we are not required to consider it.

United States v. Summit Fid. € Sur. Co., 408 F.2d 46 (6th

Cir. 1969); Wiper v. Great Lakes Engineering Works, 340

l’'.2d 727 (6th Cir.), cert. denied, 382 U.S. 812 (1965).

We do note, however, that in Love, supra, the charge had

been timely filed with the Commission so that the jurisdic-

tional prerequisite had been met.

Plaintiff Guy’s claim was barred on January 24, 1972. She

did not file her charge with EEOC until February 10, 1972.

The amendments to Title VII, increasing the time within

9a

which to file her charge to 180 days, did not become effective

until March 24, 1972. 42 U.S.C. § 2000e-5(e). The subsequent

increase of time to file the charge enacted by Congress,

could not revive plaintiff’s claim which had been previously

barred and extinguished.

The judgment of the District Court is affirmed.

Epwarps, Circuit Judge, Dissenting. Appellant Guy was

discharged for failure to report back to work on her produce-

tion job with appellee Robins and Myers at the end of sick

leave which had been granted to her. She claims that she

notified appellee that she was not able to return on the day

set, but when she did return four days later, she was in-

formed she had been discharged.

Promptly on October 27, 1971, the union filed a grievance

on her behalf, alleging that the discharge was illegal under

the union-management contract. This grievance was denied

at the third step on November 18, 1971. Thereafter plaintiff

filed a charge, alleging that her discharge was racially moti-

vated, before the Equal Employment Opportunity Commis-

sion. This charge wes filed February 10, 1972, 108 days after

her discharge. At the time the EEOC limitation provided

for a 90-day period within which to file the charge. On

March 24, 1972, however, Title VII was amended to increase

the filing time to 180 days. See 42 U.S.C. § 2000e-5(d).

EEOC, in an amicus brief filed in this appeal, asserts that

the 1972 amendment should be read retrospectively as

applicable to appellant’s complaint, since it was pending in

EEOC’s possession at the time when the amendment became

effective 151 days after plaintiff's discharge.

The EEOC position is that the amendment did not create

10a

a new cause of action. It merely increased the period from

90 to 180 days before the limitation became effective.

In Davis v. Valley Distributing Co., ...... > (9th

Cir. 1975) (No. 73-2725, decided July 30, 1975), the court,

per Browning, J., held that a similar 180-day extension

amendment (applicable to filing before the EEOC) should

be given retroactive effect. The court said.

The 1972 Act became effective March 24, 1972. The

prior 90-day limitation had run on appellant’s com-

plaint some 54 days earlier. It is the general rule that

subsequent extensions of a statutory limitation period

will not revive 2 claim previously barred. James v.

Continental Insurance Co., 424 F.2d 1064, 1065-66 (3d

Cir. 1970). But the question is one of legislative intent ;

and though not free from doubt, we think it the more

likely conclusion that Congress intended the extended

limitations period to apply to all unlawful practices

that occurred 180 days before the enactment of the 1972

Act, including those otherwise barred by the prior 90-

day limitations period.

Section 14 of the 1972 Act provides:

The amendments made by this Act to section 706

of the Civil Rights Act of 1964 shall be applicable

with respect to charges pending with the Com-

mission on the date of enactment of this Act and

all charges file thereafter.

Initially, both the House and Senate bills provided

that the amendments to section 706 would no/ apply to

charges filed prior to the effective date of the amend-

ments. H.R. 1746, 92d Cong., 2d Sess. §10 (1972);

S. 2515, 92d Cong., 2d Sess. § 13 (1972). Section 14 was

adopted primarily to make the new authority given

EEOC to bring suit against alleged violators applicable

NS nee

lla

to pending claims. EEOC v. Kimberly-Clark Corp., 511

F.2d 1352, 1355 (6th Cir. 1975); Koger v. Ball, 497

F.2d 702, 708 (4th Cir.) 1974). But Congress did not

limit section 14 of the 1972 Aet to the new remedy, al-

though it would have been simple to do so. The language

of section 14 is sweeping. It includes all amendments to

section 706. Congress was, of course, aware of the other

amendments to section 706 contained in the same bill.

The provision extending the limitation periods was

called to Congress’ attention by committee reports and

in floor debate. In both the House and Senate, prior

court decisions maximizing coverage within the given

time limits were noted with approval, and the remedial

purpose of extending the 90-day period to 180 days was

emphasized.

The words of section 14 affirmatively suggest an in-

tention to encompass discriminatory conduct that oc-

curred before the Act was passed ‘‘[C]harges pending

with the Commission on the date of enactment of this

Act’’ could only involve conduct occurring prior to

that date. it might be contended that a charge filed with

EEOC after the pre-amendment 90-day limitation had

expired, as in this case, was not ‘‘ pending”’ on the effec-

tive date of the Act. It is unnecessary to argue the

point. Section 14 also makes the amendments applicable

to ‘‘all charges filed thereafter.’’ Since appellant’s

claim was not formally ‘‘filed’’ until EEOC assumed

jurisdiction after the claim was returned by the Ari-

zona Commission, it fell within the literal words of the

statute.

There is no substantial reason for giving less than

their full meaning to the words of section 14. Even as

extended, the time limits under the statute are exceed-

ingly short, particularly since, as Congress noted, most

complaints are laymen representing themselves. The

12a

Equal Employment Opportunity Act is a remedial

statute to be liberally construed in favor of victims of

discrimination. EEOC v. Wah Chang Albany Corp.,

499 F.2d 187, 189 (9th Cir. 1974). Accordingly, ‘‘courts

confronted with procedural ambiguities in the statutory

framework have, with virtual unanimity, resolved them

in favor of the complaining party.’’ Sanchee v. Stan-

dard Brands, Inc., 431 F.2d 455, 461 (5th Cir. 1970).

Davis v. Valley Distributing Co., supra, at ——. (Foot-

notes omitted. )

This issue, as outlined above, was not presented to the

District Court in our instant case, and in fairness to the

District Judge, it should be.

l would remand this case for consideration of the effect of

the 1972 EEOC amendments.

cet a. nerd et ee i a ene eee ve

es

l3a

APPENDIX B

Nos. 74-2144 and 74-2145

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Filed December 9, 1975

DortHa ALLEN Guy ]

and

INTERNATIONAL Union or ELEctTRICAs

Rapio ANp Macutne Workers, AF'L-

CIO Loca 790,

Plaintiff s- Appellants, ORDER

~

vs.

Rossins & Myers, Inc.

(Hunter Fan Drvision),

Defendant-A ppellee. |

Before Weick, Epwarps and Peck, Cireuit Judges

This cause came on to be heard upon the petition for

rehearing with the suggestion that it be reheard en banc. No

active Judge having requested that the petition be reheard

en banc, the petition for rehearing was considered by the

panel and was found to be not well taken.

It is therefore Ordered that the petition for rehearing

be and it is hereby denied. Judge Edwards dissents.

ENTERED BY ORDER OF THE Court.

John P. Heliman, Clerk

l4a

APPENDIX 0

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TENNESSER

WESTERN DIVISION

Filed May 30, 1974

DortHa ALLEN Guy,

| Plaintiff,

Vs.

No. 0-74-165

Rossins « Myers, Inc.

(Hunter Fan Division), ef al.,

Defendants.

ORDER

This complaint against an employer and local union

arises out of an alleged discriminatory termination from

her job at Hunter Fan Division of Robbins & Myers, Inc.,

(herein referred to as R & M) on or about October 25, 1971.

The suit is brought by a black female under 42 U.S.C.

§ 2000-e et seq. (as amended) and 42 U.S.C. § 1981; jurisdic-

tion is asserted under the Equal Employment Act (42

U.S.C. § 2000(e)5(f)(3)) and 28 U.S.C. § 1343(4). She

claims also that the Union failed to represent her because

of her race. The complaint avers that on February 10, 1972,

a charge was filed with the E.E.0.C. alleging a discrimina-

tory discharge while plaintiff was purportedly on sick leave,

and it further sets out a notice of right-to-sue by E.E.0.C.

on or about November 20, 1973. This suit was filed on March

19, 1974.

Defendant R & M has filed a motion to dismiss on several

a

lda

different grounds. First, we consider the motion with re-

spect to 42 U.S.C. § 1981. Tennessee has a one year statute

of limitations which has been held applicable to actions

brought under 42 U.S.C. §1981 and other sections of the

Civil Rights Act of 1866.’ This suit was filed nearly two and

a half years after the alleged wrongful discharge and over

two years after a charge was submitted to the E.E.O.C.

The claim under 42 U.S.C. § 1981 is barred on its face by

the Tennessee statute of limitations of one year. Johnson

v. R.E.A., 489 F.2d 525, 529 (6th Cir. 1973) reh. denied,

(1974); Snyder v. Swann, 313 F.Supp. 1267 (E.D. Tenn.

1970). Title VII civil rights actions and actions under 42

U.S.C. §1981 are independent. Alexander v. Gardner-

Denver Co. —— U.S. ——, 42 L.W. 4214 (1974); Johnson

v. R.E.A., supra, p. 530. See Long v. Ford Motor Coe.,

F.2d ——, #73-1993 (6th Cir. 1974). Filing the charge with

E.E.O.C. therefore did not toll the statute of limitations.

Johnson v. R.E.A., supra, pp. 529-531; Jenkins vy. Gen. Mo-

tors, 354 F.Supp. 1040 (D. Del. 1973); Young v. I.T.T., 438

F.2d 757 ‘2rd Cir. 1971).

Plaintiff argues, however, that to apply the Tennessee

one year siatute above cited (see footnote ') is unconstitu-

tionally discriminatory because plaintiff’s claim is in its

nature contractual and should instead be subject, if at all,

'** Actions for libel, for injuries to the person, false imprison-

ment, malicious prosecution, criminal conversation, seduction,

breach of marriage promise, actions and suits against attorneys for

malpractice whether said actions are grounded or based in contract

or tort, civil actions for compensatory or punitive damages, or both,

brought under the federal civil rights statutes, and actions for

statutory penalties shall be commenced within one (1) year after

the cause of action accrued,’’

l6a

to a six year limitation set out in the case of breach of

contract in T.C.A. § 28-309. Plaintiff relies upon Republic

Pictures v. Kappler, 151 F.2d 543 (8th Cir. 1945), affirmed

per curiam, 327 U.S. 727 (1946). That case, however, was

based upon a Fair Labor Standards Act claim, 29 U.S.C.

§ 201 et seq., which, like 42 U.S.C. § 1981, contained no

‘*built in’’ limitations period of its own. Iowa had adopted

a special six months statute of limitations limited to actions

brought under federal statutes. The Court observed:

‘*Here, the state has singled out federal claims or

causes of action as such and has prescribed a shorter

period of limitations for the bringing of such actions

than that prescribed for the bringing of similar actions

...”? (p. 547)

Under these special circumstances, despite a strong dissent

by Judge Sanborn, the state statute was held to be a 14th

amendment denial of equal protection. The situation in the

instant case is dissimilar. Tennessee’s limitation is appli-

cable generally to a number of tortious types of actions;

has been on the books for many years; is a reasonable

period of limitation (twice as long as the Iowa Statute) ;

and is not directed against federal statute or civil rights

plaintiffs discriminatorily. See Swick v. Martin Co., 68

F.Supp. 863 (D. Md. 1946) affirmed 160 F.2d 483 (4th Cir.

1947) cert. denied 332 U.S. 772. Plaintiff is not being ‘‘cast

out because [s]he is suing to enforce a federal act.’’ Mc-

Kuett v. St. Louis € 8S. F. Railroad, 292 U.S. 230 (1934)

cited in Koppler, supra, p. 546, is accordingly inapposite

here. Additionally, plaintiff’s claim under the old civil

rights act lies in tort, not in contract. Johnson v. R.E.A.

supra, p. 529, Defendant R & M’s motion to dismiss plain-

ot ale oe cemen ne

»

17a

tiffs claim under 42 U.S.C. 4 1981 and 28 U.S.C. 4 1343(4)

is therefore granted for the reasons stated.

The timetable in this case with respect to the 90 day

period for filing suit in Title VII equal employment oppor-

tunity situations? is hereafter set out as stated by plaintiff:

1. On or aboui November 20, 1973, plaintiff received her

right to sue letter ;

2. Through February 18, 1974, plaintiff sought but did

noi find legal assistance ;

3. February 19, 1974, plaintiff visited the United States

District Court Clerk’s office and presented her right to sue

letter and asked for appointment of counsel;

4. The clerk of the court referred her to the Shelby

County Legal Services office and told her that she could ask

that office to represent her.

On February 19, 1974, if plaintiff received the E.E.0.C.

notice or letter on or about November 21, 1973, approxi

mately 90 days had already elapsed.

On February 20, 1974, plaintiff’s attorney filed the right

to sue letter and sought an extension of time in which to

2? Equal Employment Opportunity Act of 1972, See. 706(f) ‘1)

... If a charge filed with the Commission pursuant to subsection

(b) is dismissed by the Commission, or if within one hundred and

eighty days from the filing of such charge or the expiration of any

period of reference under subsection (c) or (d), whichever is later,

the Commission has not filed a civil action under this section or the

Attorney General has notified a civil action in a... or the Com-

mission has not entered into a conciliation agreement to which the

person aggrieved is a party, the Commission . . . shall so notify the

person aggrieved and within ninety days after the giving of such

notice a civil action may be brought against the respondent named

in the charge.

18a

file a lawsuit. Judge Robert M. McRae of this Court granted

an extension of 30 days.

On February 21 to March 18, 1974, plaintiff’s attorney

sought to conciliate.

It may be that plaintiff has failed to comply with this

time requirement which is held to be a jurisdictional pre-

requisite. Goodman v. City Products Corp., 425 F.2d 702

(6th Cir. 1970); Johnson v. R.E.A., supra. The filing of a

right-to-sue letter does not, in and of itself, extend the limi-

tations period. Cf. Huston v. G.M.C., 477 F.2d 1003 (8th

Cir. 1973); Harris v. National Tea Co., 454 F.2d 307 (7th

Cir. 1971). The action purportedly extending the time may

not have been a jurisdictional act. Kavanaugh v. Noble,

332 U.S. 535 (1947) ; Rosenman v. U.S., 323 U.S. 658 (1945).

Equitable considerations come into play, however, if the

Court, as alleged, attempted to grant the extension and if

plaintiff and her counsel relied upon that action and did

what is alleged in the complaint in seeking to preserve or

protect her rights. Nothing has been submitted by defendant

to controvert plaintiff’s and her counsel’s assertions in this

respect. The motion to dismiss on this basis is overruled at

this time based on the present state of the record on the

authority of J/arris vy. Walgreen’s, 456 F.2d 588 (6th Cir.

1972) ; Harris v. National Tea, 454 F.2d 307 (7th Cir. 1971);

Workman v. Ravenna Arsenal, 6 FEP Cases 149 (N.D.

Ohio, 1973).

It is not necessary that the Court consider plaintiff’s

further argument with respect to whether the 90 day

E.E.O.C. limitation is tolled by reason of her filing a griev-

ance discharge during this period. It is noted, however,

that her grievance referred only to an ‘‘unfair action’’ of

19a

defendant R & M and did not specify any racial animus or

basis of this action. The rationale of Alexander v. Gardner-

Denver, supra, might indicate that the union contractual

grievance and the E.E.O.C. claims, being independent of

each other, as in the case of the 42 U.S.C. §1981 claim, the

processing or pursuing of such relief separately would not

amount to a tolling of nor effect any extension of a limita-

tion period. See Johnson v. R.E.A., supra.

The Court dismisses plaintiff’s 42 U.S.C. 61981 claim

against R & M. The Title VII action is not dismissed and

defendant’s motion seeking suca dismissal at this stage is

overruled.

This 30th day of May, 1974.

/s/ Harry W. WeELLForp

United States District Court Judge

20a

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TENNESSEE

WESTERN DIVISION

Filed June 12, 1974

DortHa ALLEN Guy, )

Plaintiff,

vs.

| No. ©-74-165

Rospsins & Myers, Inc.

(Hunter Fan Drviston), ef al..

Defendanis. |

MEMORANDUM OPINION AND ORDER

Defendant has renewed its motion to dismiss plaintiff's

suit because of her failure to comply with 42 U.S.C. ¢ 2000e-

5(d) requiring the filing of a charge with Equal Employ-

ment Opportunity Commission within 90 days after the

alleged unlawful employment practice occurred.’ The rele-

vant times and acts that took place in this case all occurred

prior to March 24, 1972. The amendment extending the time

for filing 42 U.S.C. § 2000e-5(e) was prospective in its appli-

cation. From the pleadings and memorandum filed on

piaintiff’s behalf, it is clear that she was to report back to

work on October 24, 1971, when her sick leave expired. On

October 29, 1971, when she returned to work, she found that

she had been terminated on October 25, 1971, as having

voluntarily quit, a status she contested by filing a union

grievance on October 27, 1971. She filed a charge against her

‘This provision in the 1964 Civil Rights Act dealing with em-

ployment discrimination was amended March 24, 1972, by the 1972

Civil Rights Act. (42 U.S.C. § 2000e-5(e).

ee eS ee

2la

employer with E.E.0.C. on February 10, 1972, asserting

that the Company’s action was unfair. (She did not describe

it as discriminatory).

‘*It is true that the statute requires the person aggrieved

to file a written charge within 90 days; it says so clearly

and the courts so hold.’’ Fore v. Southern Bell Tel. Co., 293

i’.Supp. 587, 588 (W.D. N.C. 1968). See also McCarty v.

Boeing Co., 321 F.Supp. 260 (W.D. Wash. 1970) ; Younger

v. Glamorgan Pipe Co., 310 F.Supp. 195 (W.D. Va. 1969) ;

Gordon v. Baker Prot. Services, 358 F.Supp. 867 (N.D. II.

1973); and Heard v. Mueller Co., 464 F.2d 190 (6th Cir.

1972).

‘*Tt may be conceded that a typical lay-off, without more,

is not a continuing event, but is a completed act at the time

it oceurs, so that a charge alleging a discriminatory lay-off

must ordinarily be filed within 90 days thereafter.’’ Sci-

araffa v. Oxford Paper Co., 310 F.Supp. 891 (D. Me. 1970).

From the complaint itself the alleged discriminatory dis-

charge and refusal to reinstate took place in October, 1971,

more than 90 days prior to the charge with the E.E.0.C.

on February 10, 1972. Unless the act complained about

were continuous in its nature, re-oceurred after October,

1971, or unless the period were somehow tolled, plaintiff

is barred because of her failure to comply with statutory

jurisdictional requisites. Choate v. Caterpillar Tractor, 402

F.2d 357 (7th Cir. 1968); Mickel v. S.C. State Emp. Service,

377 F.2d 239 (4th Cir. 1967); Sanchez v. Standard Brands,

431 F.2d 455 (5th Cir. 1970).

Senator Everett Dirksen on June 5, 1964, in explana-

tion of changes made by the Senate in the House bill,

with particular reference to Section 706(d) :

22a

‘New Subsection (d) requires that a charge must be

filed with the Commission within 90 days after the

alleged unlawful employment practice occurred, except

that if the person aggrieved follows State or local pro-

cedures in Subsection (b), he may file the charge within

210 days after the alleged practice occurred or within

30 days after receiving notice that the State or local

proceedings have been terminated, whichever is earlier.

The additional 120 days is to allow him to pursue his

remedy by State or local proceedings.’’ 11 Cong. Rec.

12297. Banks v. Local Union #136, 296 F.Supp. 1190

(1968)

Tennessee does not have a civil rights law or did not

during 1971 and 1972.

Plaintiff contends, on the authority of Culpepper v.

Reynolds Metals, 421 F.2d 888 (5th Cir. 1970), that the 90

day period is tolled because she filed a grievance directed

toward the defendant company within that period.? See

Hutchings v. U. S. Industries, 428 F.2d 303, 309, (5th Cir.

1970) ; Malone vy. North American Rockwell Corp, 457 F.2d

779, 781 (9th Cir. 1972); Moore v. Sunbeam Corp., 459 F.2d

811, 826 (7th Cir. 1972). These cases, however, are based on

the rationale that plaintiff should be encouraged first to try

the grievance procedures before resorting to the E.E.O.C.

and that the acts are interrelated in respect to disputes

over discrimination. Dewey v. Reynolds Metals, 429 F.2d

324 (6th Cir. 1970) affirmed by a divided Supreme Court,

402 U.S. 689 (1971). Dewey and its progeny held that pur-

suing a contractual grievance remedy to its. conclusion

might estop later pursuit by a claimant of E.E.0.C. pro-

* She also complains that the defendant union failed to represent

her fairly and diligently.

24 he Es ee OU

ee ee Ret aR wre Ne ee

23a

cedures and suit; that tlhe remedies were related and inter-

connected. Culpepper, supra, held, however, that utilization

of grievance procedure did not estop, preclude, or constitute

an election of remedies insofar as a grievant was concerned

who might later claim violation of the 1964 Civil Rights

Act equal employment provisions.

In 1974, however, the Supreme Court unanimously in

Alexander v. Gardner-Denver Co.., ........ | an , 42 L.W.

4214 (2-19-74) disavowed the Dewey v. Reynolds Metals,

supra, rationale. At page 10 of the slip opinion, the Court

acknowledges that ‘‘Title VII does not speak expressly to

the relationship between federal courts and the grievance-

arbitration machinery of collective-bargaining agreements.

It does, however, vest federal courts with plenary powers

to enforce the statutory requirements; and it specifies with

precision the jurisdictional prerequisites that an individual

must satisfy before he is entitled to institute a lawsuit.”’

.(Emphasis ours.) The Court goes on to hold that griev-

ance-arbitration procedures neither foreclose nor preclude

an individual’s E.E.O.C. rights and requirements, nor

divest the court of jurisdiction to decide equal employment

discretion questions that may arise under the Act. In other

words, ‘‘Title VII manifests a Congressional intent to allow

an individua! to pursue independently his rights under

Title VII’’ and other statutes or private contract remedies,

even though these rights have a ‘‘distinetly separate na-

ture.’’ (pp. 11, 13 slip opinion, Alexander v. Gardner-

Denver, supra). In another place, pp. 14, 15, Justice Powell,

speaking for a unanimous court says ‘‘Title VII strictures

are absolute’’ and ‘‘are not susceptible to prospective

waiver.’’

24a

Since rights under Title ViI are and under the contract

between the parties ‘‘have legally independent origins and

are equally available,’’ it appears that both should proceed

independently and in accordance with their own statutory

or contractual limitations and requirements. The rationale

of Alexander vy. Gardner-Denver Co., supra., persuades this

Court that the 90 day Title VII requirement for filing a

claim with the E.E.O.C. after the occurrence of the alleged

discriminatory event is not effected or abated or tolled by

an independent grievance-arbitration proceeding under a

contract. The E.E.O.C., after all, is required by the statute

in question to attempt reconciliation and negotiation of the

differences before further action is taken. Thus, grievance

and conciliation procedures independently would work for

a settlement and disposition of the disputes between em-

ployer and employee. Whether or not an employee files a

grievance, or files an E..0.C. charge, he or she still has a

separate right to claim 42 U.S.C. ¢ 1981 (1866 Civil Rights

Act) violations. Long vy. Ford Motor Co., ........ ~

(6th Cir. 4-30-74). That employee, however, must abide by

applicable statute of limitations requirements as to a See-

tion 1981 claim, just as he or she must abide with contrac-

tual or 42 U.S.C. § 2000e-5(e) prerequisites.

Since plaintiffs did not file her claim with the E.E.O.C.

within 90 days after her alleged discriminatory discharge,

defendant employer’s motion to dismiss to the 1964 Civil

Rights, Title VII, claim is granted.

This 12th day of June, 1974.

/3s/ Uarry W. Wexirorp

United States District Court Judge

ee ee ee ee ee

es ne

25a

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TENNESSEE

WESTERN DIVISION

Filed June 19, 1974

DortHa Auten Guy, 7

Plaintiff,

vs.

. No. 0-74-165

Rossins & Myers, Inc.

(Hunter Fawn Division), ef al.,

Defendants.

ORDER ON RECONSIDERATION

The Court on May 30, 1974, entered an order in this case

dismissing plaintiff’s alleged cause of action under 42

U.S.C. § 1981 and overuling defendant’s motion on the

question as to whether the filing of her complaint came

within the 90 day period after issuance of the right-to-sue

letter. (In effect, because it involved a possible factual dis-

pute, it was held to be appropriate to reserve a ruling for

a hearing on the merits.) Without then expressly so ruling,

the Court indicated that the recent Supreme Court decision

of Alexander v. Gardner-Denver Co.., ........ ae , 94

S.Ct. 1011, 42 L.W. 4214, 1974) ‘‘might indicate that the

Union contractual grievance and the E.E.0.C. claim, being

independent of each other, . . . would not amount to a

tolling of nor effect any extension of a [90 day] limitation

period. See Johnson v. R.E.A., 489 F.2d 525, 529 (6th Cir.

1973) reh. denied, (1974) petition for certiorari applied

for.’’

Plaintiff moved to amend her complaint, and defendant

26a

Robbins & Myers moved the Court to reconsider and for-

mally rule on its motion to dismiss alleging plaintiff’s

failure to file her charge with E.E.O.C. within 90 days of

the happening of the alleged discriminatory act on defen-

dant Robbins & Myers’ motion to dismiss and sustaining

it on the failure of plaintiff to file a claim with E.E.O.C.

within the statutory period. (See the memorandum opiniou

and order dated June 12, 1974.) Plaintiff has moved that

the Court reconsider this opinion, especially in light of

Schiff v. Mead Corp., 3 EPD#8043 (6th Cir. 1970), unre-

ported. The Court was aware of this decision, however,

when it rendered its opinion adverse to plaintiff’s conten-

tions. The primary factor involved there was a change of

position on the part of E.E.O.C., which influenced the

Court ' to decide that the filing of a contractual grievance

might toll the 90 day statutory period described in 42 U.S.C.

§ 2000e-5(d).* The Schiff v. Mead Corp. case, however, was

decided at a time that Dewey v. Reynolds Metals, 429 F.2d

324 (6th Cir. 1970) affirmed by an equally divided Supreme

Court, was considered the law in this Cireuit. The Dewey

rationale was overruled in Alexander vy. Gardner-Denver

Co., supra. It was there emphasized that the E.E.O.C.

claims and procedures were separate and independent and

that action or conduct taken in behalf of one such claim

had no preclusive effect on the other. Johnson v. R.E.A..,

supra, had held that filing of an E.E.0.C. charge did not

toll the statute of limitations on a 42 U.S.C. § 1981 civil

rights action. Loug v. Ford Motor Co., 73-1998, ........ F.2d

sehneus (6th Cir., 4-30-74) held that 42 U.S.C. § 2000e (Title

VII) actions and 42 U.S.C. {1981 are independent of one

*(U.S.D.C. N.D., Ohio)

* Now amended by the 1972 Equal Employment Opportunity Act.

a a Oe ie ee

Pes

27a

another, and, as we construe it, that the District Court *

was correct in holding that the Title VII statutory time

requirements for filing a charge were not tolled by the filing

of a suit under the 1866 Civil Rights Act. On the other

hand, the District Court’s findings for the claimant under

the latter statute were to be rescinded on remand in light

of McDonnell Douglas Corp. vy. Green, 411 U.S. 792 (1973).

On the face of the Title VII statute, the only means of

tolling the 90 day period for filing an E.E.0.C. charge after

the alleged discriminatory event was (and is) a filing of a

charge with equal employment opportunities and discrim-

ination. This plaintiff Guy could not do so, because Tennes-

see nor Shelby County has any such agency or law authoriz-

ing such a body.

After the discharge in question, Guy had a legal right to

file a grievance against her employer under the Union con-

tract, provided she adhered to its terms. Whether or not

she filed her grievance, plaintiff also had a right within

90 days to file a charge of racial discrimination. Within a

year, whether or not she pursued contractual or E.E.0.C.

procedures, she had a right to file suit for alleged discrim-

ination under 42 U.S.C. § 1981. Plaintiff failed to to follow

through with either of the latter two statutory rights in

accordance with applicable time requirements. Defendant’s

motion to dismiss is proper under these circumstances.

It should be noted that plaintiff did in fact pursue her

grievance through three levels unsuccessfully. Further-

more, E.E.O.C. investigated her claim and determined on

8 (US.D.C. E.D., Mich.)

* See the findings and conclusions of E.E.O.C. filed as a part of

the record in this cause.

28a

November 20, 1973, that ‘‘the Commission finds no reason

to believe that race was a factor in the decision to dis-

charge .. .’’ Plaintiff waited until the last day of the 90

days given her, or until the ninetieth day in which to seek

the Court’s assistance in filing her Title VII suite after

having received an adverse determination to her claims

since October of 1971. This lack of diligence, in and of

itself, might not constitute a bar, Harris v. Walgrzen’s

Dist. Center, 456 F.2d 588 (6th Cir. 1972), but is indicative

of plaintiff’s dilatory role in these proceedings throughout.

See Fekete v. U.S. Steel, 424 F.2d 331 (3rd Cir. 1970) as

to the effect of a negative E.K.0.C. determination involving

‘possibilities of sophisticated discrimination . . . because

of European ancestral origin’’ after an arbitrator’s rein-

statement of claimant with back pay—an entirely different

situation from that at bar. Compare Beverly v. Lone Star

Lead, 437 F.2d 1136 (Sth Cir. 1971) dealing with this ques-

tion where plaintiff filed his claim with E.E.0.C. a week

after the alleged discriminatory event, and within approxi-

mately 20 days after an adverse E.E.0.C. determination,

filed his suit in federal court.

Mrs. Guy was not ‘‘penalized’’ for her seeking ‘‘to adjust

her dispute with her employer through the private ma-

chinery of the grievance procedure’’ as described in Malone

v. N. American Rockwell, 457 F.2d 779 (9th Cir. 1972). That

case did not decide whether there had been a continuing act

of discrimination for failure to promote, or whether the

settlement of a grievance was in itself a discriminatory act

with respect to whether claimant had delayed too long in

filing a claim with B.E.0.C. after intervening investigation

by a state employment opportunities commission. This

Court has granted the motion to dismiss upon reeconsidera-

_

ee

ool

29a

tion, because plaintiff, a Union steward, did not comply

with Title VII statutory time requirements of filing her

K.E.O.C. charge after her termination.

Plaintiff’s claims against the employer, Robbins & Myers,

must stand dismissed.

/s/ Harry W. WE.iFrorp

United States District Court Judge

Date:

30a

APPENDIX D

SECTION 706(d) OF THE CIVIL RIGHTS ACT OF

1964, 78 STAT. 259 (JULY 2, 1964):

‘*(d) A change under subsection (a) of this section

shall be filed within ninety days after the alleged un-

lawful employment practices occurred. Except that in

the case of an unlawful employment practice with

respect to which the person aggrieved has followed the

procedure set out in subsection (b) of this section, such

charge shall be filed by the person aggrieved within two

hundred and ten days after the alleged unlawful em-

ployment practice or within thirty days after receiving

notice that the State or local agency has terminated

the proceedings under the State or local law, whichever

is earlier, and a copy of such charge shall be filed by

3la

behalf of the person aggrieved within three hundred

days after the alleged unlawful employment practice

occurred, or within thirty days after receiving notice

that the State or local agency has terminated the pro-

ceedings under the State or local law, whichever is

earlier, and a copy of such charge shall be filed by the

Commission with the State or local agency.’’

SECTION 14 OF THE EQUAL EMPLOYMENT OP-

PORTUNITY ACT OF 1972, PUB. L. 92-261, 86 STAT.

105, 118 (MARCH 24, 1972):

‘*(14) The amendments made by this Act to section

706 of the Civil Rights Act of 1964 shall be applicable

with respect to charges pending with the Commission

on the date of enactment of this Act and to all changes

filed thereafter.’’

the Commission with the State or local agency.”’

SECTION 706(e) OF THE CIVIL RIGHTS ACT OF

1964, AS AMENDED BY THE EQUAL EMPLOYMENT

OPPORTUNITY ACT OF 1972, P.B.L. 92-261, 86 STAT.

103, 104 (MARCH 24, 1972) 42 U.S.C. § 2000R-5(B)) :

‘*(e) A charge under this section shall be filed within

one hundred and eighty days after the alleged unlawful

employment practice occurred and notice of the charge

(including the date, place and circumstances of the

alleged unlawful employment practice) shall be served

upon the person against whom such charge is made

within ten days thereafter, except that in a case of

unlawful employment practice with respect to which

the person aggrieved has initially instituted proceed-

ings with a State or local agency with authority to

grant or seek relief from such practice or to institute

criminal proceedings with respect thereto upon receiv-

ing notice thereof, such charge shall be filed by or on