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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1976
- **Citation:** 429 U.S. 229

## Text

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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 (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

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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

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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

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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

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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,’’

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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

»

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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).

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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

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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

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_2195%3A1. Public record. Not legal advice.