492 F.2d 292 (9th Cir. 1974), 26868, Gates v. Georgia-Pacific Corp.

Docket Nº:26868, 72-2348.
Citation:492 F.2d 292
Party Name:Jeannette M. GATES, Appellee, v. GEORGIA-PACIFIC CORPORATION, a corporation, Appellant.
Case Date:February 22, 1974
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 292

492 F.2d 292 (9th Cir. 1974)

Jeannette M. GATES, Appellee,


GEORGIA-PACIFIC CORPORATION, a corporation, Appellant.

Nos. 26868, 72-2348.

United States Court of Appeals, Ninth Circuit.

February 22, 1974

Page 293

Paul Haerle (argued), Stephen D. Bulter, Thelen, Marrin, Johnson & Bridges, San Francisco, Cal., John B. Crowell, Jr., Georgia-Pacific Corp., Portland, Or., for appellant.

Keith Burns (argued), Portland, Or., George H. Darden, EEOC (amicus curiae), Washington, D.C., for appellee.

Before DUNIWAY and SNEED, Circuit Judges, and SHARP, [*] District judge.


SNEED, Circuit Judge:

This is an action brought under Title VII of the 1964 Civil Rights Act, 42 U.S.C. 2000e-5, alleging discriminatory hiring practices.

Appellee Jeannette Gates, a Black woman, has a strong background in accounting. She holds a bachelor's degree in business administration and a Master of Business Administration degree from New York University. Mrs. Gates took 23 hours of accounting in her undergraduate program, and she became qualified to teach accounting as a result of her graduate work. In addition to working as an accountant for a federal agency and the City of Portland, Mrs. Gates has taught accounting at the college level. In sum, Mrs. Gates possesses strong academic and practical experience in her profession of accounting.

As a result of a transfer of its administrative offices to Portland, appellant Georgia-Pacific Corporation had four cost accountant vacancies. In order to fill the vacancies which could not be met by intracompany transfers, Georgia-Pacific placed newspaper advertisements in daily newspapers. One of these advertisements appeared in the Portland Oregonian for January 22, 1967. Responding to this advertisement, Mrs. Gates contacted Georgia-Pacific's Portland office and was interviewed for the position on January 26, 1967. At that time, she completed and returned an application for employment. Mrs. Gates heard nothing from Georgia-Pacific thereafter. She did not learn that the accounting positions had been filled until she re-applied on September 14, 1967.

Mrs. Gates brought this action under Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e-5, alleging racial discrimination in hiring practices. Her initial complaint was filed on October 12, 1967, with the Equal Employment Opportunity Commission. 1 She was notified by letter of December 16, 1968, that her case was closed by the Commission for lack of jurisdiction. On December 20, 1968, appellee contacted the Commission, expressing her dissatisfaction with the decision. On January 14, 1969, the Commission sent appellee a letter indicating that her case could not be reconsidered by the Commission but, in accordance with the notice previously sent to her, she could file a suit in District Court within 30 days. Appellee advised the Commission on January 20, 1969, that she had not received a right-to-sue notice. Appellee then received a letter from the Commission dated January 23, 1969, stating that through error it had not sent her a 30 day notice and it was enclosing a 30 day right-to-sue letter.

Mrs. Gates commenced her action in the United States District Court for the District of Oregon on February 20, 1969. In due course a judgment in her favor was obtained.

Georgia-Pacific appealed to this court from that judgment. Because jurisdictional issues involving the 30 day notice letter has not been resolved at the lower court level, we remanded to the District Court to determine whether the civil action had been timely filed in the District Court. After receiving additional evidence and permitting the 30 day letter

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to be introduced into evidence, the District Court again ruled in favor of appellee. For purposes of this appeal, the appeals from the original judgment and the judgment on remand have been consolidated.


Jurisdictional Issues

(a) Authority on Remand

We must first dispose of an issue raised by appellant concerning the scope of our remand. The problem arises because of a bureaucratic mishap. In the first pretrial order, appellant admitted appellee's receipt of the Commission's 30 day notice letter of January 23, 1969. Through clerical error, the first pretrial order was lost and has never been found. Appellant asserted in the amended pretrial order that appellee had not timely filed her action with the Commission and that she had not received the January 23, 1969 letter. This amendment went unnoticed by appellee and the trial judge. Thus, the issue of receipt of the 30 day letter was never expressly raised at trail, and the trial judge never ruled on the matter.

We remanded for a ruling on the jurisdictional issue. Our order provided:

On appeal, Georgia-Pacific poses a jurisdictional question as to the 30 day letter notice asserted in plaintiff's contentions in the amended pre-trial order and denied in defendant's contentions in the same pre-trial order. The letter does not seem to be in the official record. Further, this court is not satisfied that the issue was squarely presented to the district court. Therefore, the case is remanded to the district court for that court to rule on the jurisdictional issue here posed. From any such ruling, a party aggrieved may take a new appeal and on motion may then consolidate it with the pending appeal.

On remand, the trial judge admitted additional evidence on the issue and permitted the letter to be introduced. He then entered a judgment order in favor of plaintiff appellee. Appellant asserts that neither the remand order nor Federal Rule of Civil Procedure 60(b) permitted the trial judge to re-open the record on remand. We disagree.

Our order was clearly designed to permit the trial judge to rule both on questions of fact and questions of law surrounding the 30-day letter. This quite obviously necessitated re-opening the record. Viewing our remand order as sufficiently broad to sustain the actions of the trial judge, we express no opinion on whether Rule 60(b) provides an...

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