Green v. McDonnell Douglas Corporation

• Decision Date: 28 June 1972
• Docket Number: No. 20596.,20596.
• Citation: 463 F.2d 337
• Parties: Percy H. GREEN, Plaintiff-Appellant, v. McDONNELL DOUGLAS CORPORATION, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

463 F.2d 337 (1972)

Percy H. GREEN, Plaintiff-Appellant, v. McDONNELL DOUGLAS CORPORATION, Defendant-Appellee.

No. 20596.

United States Court of Appeals, Eighth Circuit.

March 30, 1972.

Rehearing and Rehearing Denied May 12, 1972.

Rehearing Denied June 28, 1972.

Louis Gilden, St. Louis, Mo., for plaintiff-appellant.

Gaylord C. Burke, Thomas C. Walsh, St. Louis, Mo., for defendant-appellee; Bryan, Cave, McPheeters & McRoberts, St. Louis, Mo., of counsel.

Jack Greenberg, James M. Nabrit, III, Norman C. Amaker, William L. Robinson, New York City, for amicus curiae NAACP Legal Defense and Educational Fund, Inc.

Before JOHNSEN, LAY and BRIGHT, Circuit Judges.

Rehearing and Rehearing En Banc Denied May 12, 1972.

BRIGHT, Circuit Judge.

Percy Green, a black citizen, brought this action against McDonnell-Douglas Corporation (McDonnell) under Title VII¹ of the Civil Rights Act of 1964, seeking relief from the latter's allegedly discriminatory conduct in denying Green employment in July 1965. Green also pressed a claim that McDonnell had discharged him from a job in August 1964 for reasons of race in violation of 42 U.S.C. § 1981. The district court denied Green any relief. Green v. McDonnell-Douglas Corporation, 318 F.Supp. 846 (E.D.Mo.1970). Green prosecutes this timely appeal. For the reasons stated below, we reverse and remand this case for further proceedings.

To place this controversy in an appropriate frame of reference, we find it necessary to examine chronologically both the underlying facts and the procedures followed in the district court. Although the immediate controversy springs from the refusal of McDonnell to employ Green on July 26, 1965, its origin lies in an earlier employment relationship. In 1956, McDonnell employed Green as a mechanic. He remained with the company continuously, except for twenty-one months of honorable military service, until he was laid off on August 28, 1964. Initially, Green's job was protected by union security, but in 1963 he transferred to a non-union position as a laboratory technician, performing work on research projects in the Electronic Equipment Division of McDonnell. In 1964, the workload decreased in the Electronic Equipment Division, and the company laid off several persons, including Green.

Green, a long-time activist in the movement to obtain equal rights for black citizens, vigorously protested his discharge as being racially motivated. He also filed formal complaints of discrimination with the President's Commission on Civil Rights, the Justice Department, the Department of the Navy, the Defense Department, and the Missouri Commission on Human Rights. As a member of CORE, and later as a member of ACTION, another civil rights organization, Green, in late 1964 and during 1965, participated in several demonstrations which were staged to call attention to McDonnell's allegedly discriminatory employment practices. These demonstrations included picketing the home of James F. McDonnell, Chairman of the Board of McDonnell; blocking a main highway access route leading to the McDonnell plant during a traffic "stall-in"; and, participating in a civil rights demonstration during which the doors of a downtown St. Louis building which housed certain McDonnell employees were locked with chains by some of the demonstrators.

On July 25, 1965, McDonnell ran an advertisement in the St. Louis, Missouri, newspapers seeking qualified electrical mechanics. The next day Green applied for one of these positions, but McDonnell, although still seeking qualifed mechanics, refused to hire him. McDonnell never has disputed Green's technical ability to perform the work required in that position. Thereafter, on September 14, 1965, Green filed a formal complaint with the Equal Employment Opportunity Commission (EEOC), alleging that McDonnell had discriminated against him "because of his race and because of his persistent involvement in the Civil Rights Movement." On May 8, 1967, the EEOC determined that reasonable cause existed to believe that McDonnell had violated 42 U.S.C. § 2000e-3(a) by refusing to employ Green "because of his involvement in civil rights activities."² It made no determination on the allegation of racial bias.

The EEOC unsuccessfully attempted to conciliate the dispute. Accordingly, on March 19, 1968, it issued a thirty-day letter notifying Green that he might institute civil action in federal court pursuant to 42 U.S.C. § 2000e-5(e). This litigation followed.

In a complaint filed April 15, 1968, Green alleged that McDonnell had discriminated against him by denying him employment "because of his involvement in civil rights activities." On March 20, 1969, Green filed an amended complaint alleging that McDonald also had discriminated against him by denying him employment "because of his race and color." Upon motion of McDonnell, the district court struck this additional claim on the ground that the EEOC had made no finding as to reasonable cause on this claim. Green v. McDonnell-Douglas Corp., 299 F.Supp. 1100 (E.D.Mo.1969).

Although 42 U.S.C. § 1981³ was not specifically mentioned in any of the pleadings, Green, during trial and in post-trial briefs, construed the pleadings to assert that his 1964 layoff was motivated by racial prejudice in violation of that statute.

The district court rejected Green's claim that McDonnell denied him employment in 1965 because of his participation in protected civil rights activities. The court also rejected the 1964 layoff claim brought under § 1981. It summarized its conclusions as follows:

(a) Plaintiff has not shown that defendant was motivated by racial prejudice or because of plaintiff\'s legitimate civil rights activities.

(b) Plaintiff\'s layoff claim under 42 U.S.C. § 1981 is barred by the statute of limitations.

(c) The Civil Rights Act does not protect activity which blocks entrance into or from an employer\'s plant or office.

(d) Defendant\'s refusal to reemploy plaintiff was based on plaintiff\'s misconduct, which justified the refusal to rehire. 318 F.Supp. 851

On this appeal, Green raises the following contentions:

(1) The trial court erred in dismissing his claim under 42 U.S.C. § 1981 for relief from his allegedly unlawful layoff.

(2) The trial court erred in determining that his participation in the "lockin" and "stall-in" demonstrations did not fall within the protection of 42 U.S.C. § 2000e-3(a).

(3) The trial court erred in striking the allegations of the complaint which charged McDonnell with denying him employment for reasons of race.

I.

We turn first to the issues relating to the 1964 layoff. Several circuits, following the rationale of Jones v. Alfred H. Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968), have concluded that 42 U.S.C. § 1981 affords a remedy in federal court for private discrimination in employment. Young v. International Telephone & Telegraph Co., 438 F.2d 757 (3d Cir. 1971); Sanders v. Dobbs Houses, Inc., 431 F.2d 1097 (5th Cir. 1970), cert. denied, 401 U.S. 948, 91 S.Ct. 935, 28 L.Ed.2d 231 (1971); Waters v. Wisconsin Steel Works of International Harvester Co., 427 F.2d 476 (7th Cir.), cert. denied, United Order of American Bricklayers and Stone Masons Local 21, 400 U.S. 911, 91 S.Ct. 137, 27 L.Ed.2d 151 (1970). This court has not yet passed upon this question. We find it unnecessary to do so here since, even if we assume that such an action will lie, the action in this case would be barred by the applicable statute of limitations.

Although § 1981 contains no limitation period, an action for deprivation of civil rights brought under a federal statute such as § 1981 is governed by the most analogous state statute of limitations. See Glassco v. Howell, 431 F.2d 863, 864 (8th Cir. 1970); Waters v. Wisconsin Steel Works of International Harvester Co., supra, 427 F.2d at 488. In this case, the parties agree that Missouri's five-year limitation period for contracts⁴ is the most analogous period of limitation. Within that limitation period, Green filed no pleading which mentioned either the 1964 layoff or 42 U.S.C. § 1981.

On August 24, 1970, several months after the trial court had heard the evidence, and more than five years after the 1964 layoff, Green moved under Fed. R.Civ.P. 15(b) to amend his complaint to charge discrimination in "violation of 42 U.S.C. § 1981 in that it was based on race, color, and civil rights activities." The trial court denied leave to amend. The record discloses that McDonnell did not expressly or impliedly consent to any action under § 1981, and that any evidence relating to the 1964 lay off was introduced as a background for Green's claim to relief from McDonnell's refusal to hire him in July 1965.

Green contends that his amended complaint, which was filed within the limitation period, should be construed to state a claim under § 1981 for discrimination in the 1964 layoff. We cannot accept his broad reading of the language contained in the amended complaint. Although that complaint alleges discrimination "because of . . . race and color," it specifically refers to unlawful employment practices occurring on "July 26, 1965, and thereafter." This language convinces us that the amended complaint was not intended to encompass the 1964 layoff. Accordingly, we conclude that the district court properly dismissed the layoff claim.

II.

We now examine Green's contention that the district court erred in ruling that his participation in the "stall-in" and "lock-in" demonstrations did not fall within the protection of 42 U.S.C. § 2000e-3(a). We confine our discussion here to the question whether Green's participation in the "stall-in" is a protected activity under § 2000e-3(a). The record does not support the trial court's conclusion that Green "actively cooperated" in chaining the doors of the downtown St. Louis building during the "lock-in" demonstration. See Judge Lay's concurring opinion, infra. We therefore measure the protection afforded...