Marlowe v. Fisher Body

• Decision Date: 06 December 1973
• Docket Number: No. 73-1359.,73-1359.
• Parties: Virgil Philip MARLOWE, Plaintiff-Appellant, v. FISHER BODY, a division of General Motors Corporation and International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, C.I.O., Local #596, jointly and severally, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

489 F.2d 1057 (1973)

Virgil Philip MARLOWE, Plaintiff-Appellant, v. FISHER BODY, a division of General Motors Corporation and International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, C.I.O., Local #596, jointly and severally, Defendants-Appellees.

No. 73-1359.

United States Court of Appeals, Sixth Circuit.

Argued October 15, 1973.

Decided December 6, 1973.

COPYRIGHT MATERIAL OMITTED

Henry A. Bornstein, Southfield, Mich., for Virgil Philip Marlowe; Bornstein, Wishnow & Young, Southfield, Mich., on brief.

Charles Hodge, Washington, D. C., for U. S. Equal Employment Opportunity Commission as amicus curiae; William A. Carey, Gen. Counsel, Julia P. Cooper, Associate Gen. Counsel, Beatrice Rosenberg, Joseph T. Eddins, Jr., Attys., E. E. O. C., Washington, D. C., on brief.

Richard J. Loftus, Jr., Detroit, Mich., for General Motors Corp; Ross L. Malone, Detroit, Mich., Atty. for General Motors Corp., on brief; Eugene L. Hartwig, Edmond J. Dilworth, Jr., Jimie R. Wheatley, Robert N. Price, Russell J. Thomas, Jr., Detroit, Mich., of counsel.

Edwin G. Fabre, Asst. Gen. Counsel, Detroit, Mich., for Local No. 596, International Union, UAW; John A. Fillion, Gen. Counsel, Detroit, Mich., on brief.

Before WEICK, MILLER and LIVELY, Circuit Judges.

LIVELY, Circuit Judge.

This case was begun in the district court as an action for damages under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The original complaint was filed on August 5, 1970 and the only defendant was Fisher Body, a division of General Motors Corporation (hereafter General Motors). It was alleged in the complaint that by concerted action of its officers, agents and employees conspiring together General Motors had willfully deprived plaintiff of his civil rights by discriminating against him in his employment because of his religion and national origin. The complaint asserted that the plaintiff had been denied the valuable right of advancement or promotion and of overtime in an arbitrary and capricious manner because he is a member of the Jewish faith. The complaint stated that plaintiff had filed a charge of discrimination with the Equal Employment Opportunity Commission (hereafter EEOC) on July 9, 1969 and had received from EEOC on July 10, 1970 a notice of right to sue within 30 days. By its answer, General Motors denied that there had been a discriminatory refusal to grant overtime and promotion or other acts of discrimination. By an order dated September 13, 1971 plaintiff was permitted to add International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, Local 596 (hereafter UAW) as a defendant and to file and serve an amended complaint within 20 days.

The amended complaint sought relief under the Civil Rights Act of 1866, 42 U.S.C. § 1981, as well as Title VII of the 1964 Act and asserted jurisdiction to proceed against UAW pursuant to provisions of the Labor Management Relations Act, 29 U.S.C. § 151 et seq. Plaintiff sought to have his action treated as a class action under Rule 23(b)(2), Fed.R.Civ.P. The court refused to permit plaintiff to proceed in this manner and there is no appeal from the order denying a class action. The amended complaint sought preliminary and permanent injunctions as well as damages. In addition to adopting the allegations of discrimination contained in the original complaint, the amended complaint asserted that UAW had been apprised of the situation and by collusion with General Motors was failing to represent the plaintiff in good faith. The collective bargaining agreements between UAW and General Motors were referred to and it was alleged that pursuant to these agreements the defendants ". . . have established a promotional and seniority system, the design, intent and purpose of which is to continue and preserve, and which has the effect of continuing and preserving, the defendants' policy, practice, custom and usage of limiting the employment and promotional opportunity of Jewish employees of the Company because of religion or national origin." It was further alleged that the amended complaint is based on a series of incidtents ". . . continuously occurring over the plaintiff's period of employment with FISHER BODY, and up to and including the present time or after the filing of the original Complaint. That the acts alleged are continuous in nature and have been and are occurring to the present date, that Equal Employment Opportunity Commission (EEOC) violations have been brought even after the first Complaint was filed and therefore this AMENDED COMPLAINT will air those issues and facts alleged in the original Complaint and perpetuated after the original Complaint was filed." (emphasis in original)

Both defendants filed answers denying the material allegations of the amended complaint and raising affirmative defenses, including the alleged failure of the plaintiff to exhaust his administrative remedies under the collective bargaining agreement referred to in the amended complaint or his intra-union remedies under the constitution of UAW. They also asserted that the court lacked jurisdiction because of the alleged failure of the plaintiff to file charges with the EEOC within the time permitted by Title VII prior to bringing suit.

After taking the plaintiff's deposition, General Motors filed a number of motions, some of which were ruled on by the court in a Memorandum Opinion filed January 26, 1972. The court denied a motion to strike references to 42 U.S.C. § 1981, holding that the statute in question was designed to deal with prejudice in the broadest sense and that prejudice against Jews is based upon race as well as religion. The court granted a motion to dismiss the class action claim and ordered that the action be limited to consideration of incidents arising subsequent to May 3, 1967, the date of a consent decree between the parties entered before the Michigan Civil Rights Commission.

Following further pretrial discovery, General Motors filed a motion to dismiss on the grounds that plaintiff had failed to file a timely charge with EEOC as required by 42 U.S.C. § 2000e-5(b) and (d); that 42 U.S.C. § 1981 can serve as a basis for jurisdiction of suits brought only by non-white persons, and that the applicable statute of limitations of Michigan barred any proceeding under 42 U.S.C. § 1981. UAW then filed a motion "for summary judgment or in the alternative to dismiss," listing the same reasons as given in the General Motors motion and in addition relying upon the alleged failure of the plaintiff to exhaust his contractual and intra-union remedies. The district court granted the motions of both defendants and dismissed the complaint.

In his Memorandum Opinion and Order, the district judge held that the court did not have jurisdiction because the plaintiff had failed to file his complaint with the EEOC within the time period prescribed in Title VII. He found that the discrimination complained of occurred on May 10, 1967 and that the claim was filed with EEOC on October 18, 1968 which was more than 17 months after the commission of the discriminatory act. He also held that the actual discrimination complained of by the plaintiff was not of a continuous nature since the plant must reach 100 per cent of its productivity in order for any employee to be eligible to work overtime and that each time such condition is met and plaintiff is denied overtime constitutes a separate violation. He thus held that the continuing violation doctrine does not apply to relieve the plaintiff of the 210-day limit prescribed in Title VII. The court also held that the applicable Michigan statute (M.C.L.A. § 423.307(b)) requires that a complaint be filed with the Michigan Civil Rights Commission (hereafter MCRC) within 90 days of the alleged act of discrimination. The court found that the complaint filed with MCRC on September 21, 1967 alleging a violation on May 10, 1967 was not timely. It was further held that failure to file a timely complaint with local or state authorities rendered the plaintiff ineligible to take advantage of the extended 210-day time limit contained in 42 U.S.C. § 2000e-5(d). The court also held that the complaint filed in the district court involved a different occurrence from the one referred to in the right to sue letter which was issued by EEOC on July 10, 1970. He found that the charges involved in the right to sue letter were not included in this action until September 28, 1971 with the filing of the amended complaint and that the amendment could not be related back to the date of the original filing under Rule 15(c), Fed.R.Civ.P. It was further held that the filing of the original complaint on August 5, 1970 was barred by the three-year Michigan statute of limitations relating to civil rights actions (M.C.L.A. § 600.5805(7)) in the absence of a statute of limitations specifically applying to 42 U.S.C. § 1981. Finally, it was held that plaintiff had not exhausted his internal union remedies and that such exhaustion is a condition precedent to the maintenance of any action against UAW.

Timely Filing Under Title VII¹

It is important to attempt to identify the various steps which the plaintiff took and to place them in chronological order. On September 21, 1967 plaintiff filed a complaint with MCRC alleging that the last act of discrimination occurred on May 10, 1967. This claim was assigned the number 3444-EM and apparently never was filed with EEOC.

On October 18, 1968 plaintiff filed a charge of discrimination with EEOC claiming that the last act occurred on October 6, 1968 "and continuing." This charge was referred by EEOC to MCRC within 90 days, bearing file number TCL 9-0296. On January 7, 1969 MCRC wrote to EEOC referring to "Marlowe -vs- General Motors Corp." by both file numbers, the one given the 1967 charge by MCRC and the one given the 1968 complaint by EEOC, thus apparently treating the two...