495 F.2d 398 (5th Cir. 1974), 72-3239, Franks v. Bowman Transp. Co.

Docket Nº:72-3239.
Citation:495 F.2d 398
Party Name:Harold FRANKS, Plaintiff-Appellant, Johnny Lee, Intervenor-Appellant, v. BOWMAN TRANSPORTATION COMPANY et al., Defendants-Appellees.
Case Date:June 03, 1974
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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495 F.2d 398 (5th Cir. 1974)

Harold FRANKS, Plaintiff-Appellant, Johnny Lee, Intervenor-Appellant,


BOWMAN TRANSPORTATION COMPANY et al., Defendants-Appellees.

No. 72-3239.

United States Court of Appeals, Fifth Circuit.

June 3, 1974

Rehearing Denied July 15, 1974

Rehearing and Rehearing En Banc Denied Sept. 12, 1974.

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Howard Moore, Jr., Elizabeth R. Rindskopf, Atlanta, Ga., for Harold franks.

Jack Greenberg, William L. Robinson, Morris J. Baller, New York City, for Johnny Lee.

William M. Pate, Atlanta, Ga., for Bowman Transp. Co.

Robert B. Hocutt, James W. Dorsey, Atlanta, Ga., for Union et al.

Before THORNBERRY, AINSWORTH and RONEY, Circuit Judges.

THORNBERRY, Circuit Judge:

After processing a complaint through the EEOC, appellant Franks brought this racial-discrimination civil rights suit under Title VII, § 706, of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e-5, and under 42 U.S.C.A. § 1981 on behalf of himself and those similarly situated against his former employer, Bowman Transportation Company, and his union. 1 He alleged a discriminatory refusal to promote and a discriminatory discharge, and he sought extensive declaratory and equitable relief for himself and for class members. Lee was permitted to intervene as plaintiff to press his individual claim against Bowman for a discriminatory refusal to hire and for a discriminatory discharge and to represent other classes of black Bowman employees and job applicants. The district court found after a three-day trial that Franks had established the factual bases for his individual claim, but it dismissed his individual action because it concluded Franks had waited beyond the applicable limitations period to file suit. The court held that Lee factually established his claim for a discriminatory refusal to hire, but failed to prove his claim for discriminatory discharge, and it accordingly entered judgment partly for him and partly against him. As to the classes represented, the court found that past racial discrimination had been demonstrated and that the departmental seniority system maintained by Bowman and the union perpetuated the effects of past discrimination. As a remedy, the court enjoined Bowman from discriminating along racial lines in the future, ordered that certain class members be allowed to utilize company seniority accumulated before the date on which discrimination had ceased, and afforded certain discriminatees who responded to a notice from Bowman within thirty days priority in consideration for employment. The court declined to grant further affirmative relief requested, including the use of full company seniority for certain discriminatees, measures to ensure hiring and training of greater numbers of blacks in the future, and a requirement that Bowman file periodic reports with the district court to demonstrate compliance. On this appeal we are asked to review the district court's adverse rulings on the individual claims of Franks and Lee and to determine whether the district court abused its discretion in not affording greater affirmative relief to the classes they represented. We shall discuss the pertinent facts in connection with the various claims.

I. Franks' Individual Claim: Limitations and Laches

Bowman is an interstate trucking company which operates as a common carrier licensed by the Interstate Commerce Commission throughout southeastern United States and in part of the

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mid-west. 2 Its principal terminals are in Atlanta, Birmingham, Charlotte, and Richmond.

Franks, a Negro, was first hired at Bowman's Atlanta terminal in 1960 as a 'tire man,'-- a position which requires the most menial work at the terminal and brings the lowest pay. Except for a one-year period in 1961 and 1962 during which he was assigned as a 'grease man,' Franks worked as a tire man continuously until 1965, when he resigned due to an injury. In 1966 he was rehired as a tire man. After his return Franks attempted on several occasions to obtain a transfer, or promotion, into another job, but his way was blocked by Bowman's racially discriminatory policy of employing blacks only in the Tire Shop. 3 Although Bowman agreed in a collective bargaining agreement signed in 1967 to allow transfers and to hire without regard to race, the discriminatory policy was in fact continued in effect unofficially after 1967. Both before and after 1967 Franks was told that blacks could not transfer, or be promoted, from the Tire Shop. The district court found that but for Bowman's discriminatory policy, Franks should reasonably have been promoted to a higher paying, 'dock worker' position by the end of 1967. No challenge is made to this finding.

Having watched white workers hired 'off the street' into higher paying positions for which he was qualified and had applied, Franks filed a complaint with the Equal Employment Opportunity Commission on March 25, 1968, charging that Bowman refused to promote him because of its racially discriminatory policy of employing blacks only in the Tire Shop. EEOC officials visited the Atlanta terminal on two occasions, on April 23, 1968 and on May 10, 1968 to investigate Franks' charges. A few hours after the second visit Bowman discharged Franks, assertedly for 'unauthorized bobtailing,' or using company vehicles for personal errands. The district court rejected this purported explanation, however, and found that Franks was discharged 'for reasons of race.' On May 13, 1968 Franks filed a second complaint with the EEOC, alleging a discriminatory discharge.

Efforts to resolve the dispute through conciliation having failed, on March 21, 1969 Franks' then attorney requested the EEOC to issue a § 706(e) 'suit letter' covering both complaints, and such a letter was sent on the same day to Franks' mailing address by certified mail, return receipt requested. Franks resided at 5339 Victory Drive in Morrow, Georgia, but he received his mail at 5319 Victory Drive, where his grandmother, sister, and nine-year-old nephew resided. On March 22 his nephew received the letter and signed the postal receipt, but he lost the letter before delivering it to Franks. Franks learned that his nephew had signed for some letter, but he never saw or received the letter personally. About a year later, on March 20, 1970 Franks contacted EEOC officials again about his dispute with Bowman, and, upon being shown the postal receipt for the first suit letter, affirmed in an affidavit that he had not personally received it. Franks then retained his present attorneys and filed 'amended' charges with the EEOC which substantially duplicated the earlier charges. A second suit letter issued on April 14, 1971, and Franks filed a suit less than a month later on May 5, 1971.

On these facts the district court held Franks' Title VII and his Section 1981 claim barred. As to the Title VII action, the court reasoned that the thirty-day statutory limitations period 4 began to run on March 22, 1969, the date the first suit letter was delivered to Franks'

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mailing address, so that the action was barred after April 21, 1969. As to the § 1981 action, the court concluded that a two-year Georgia statute of limitations was applicable and that it barred the claim since the suit had not been filed for almost three years after Franks' discharge on May 10, 1968.

The statutory language which established the thirty-day limitations period applicable to Franks' Title VII action is found in § 706(e) as it read before the 1972 amendments: 5

If within thirty days after a charge is filed with the Commission (or within sixty days, if the Commission acts to extend the period) the Commission has been unable to obtain voluntary compliance with this subchapter, the Commission shall so notify the person aggrieved and a civil action may, within thirty days thereafter be brought against the respondent named in the charge (1) by the person claiming to be aggrieved . . ..

The key word in the statute is 'notify'; the limitations period begins to run upon notification of the aggrieved party. 6 This Court has held that such notification takes place only when 'notice of the failure to obtain voluntary compliance has been sent and received.' Miller v. International Paper Co., 5th Cir. 1969, 408 F.2d 283 (emphasis added). There being no question that the EEOC mailed the statutory notice to Franks, the Title VII limitations issue must be framed in terms of whether Franks constructively 'received' the letter, even though it never actually came into his hands. We hold that Franks did not 'receive' the first suit letter, and that the thirty-day limitations period began to run only when the second suit letter actually reached him or his attorney. Genovese v. Shell Oil Co., 5th Cir. 1973, 488 F.2d 84. Since suit was filed within thirty days of the receipt of the second suit letter, the Title VII action was not barred by the § 706(e) limitations period.

We do not deal here with service of process or receipt of an offer or acceptance to make a contract, but with the interpretation of Title VII. The courts have consistently construed the Act liberally to effectuate its remedial purpose, and we think this purpose would be poorly served by the application of a 'constructive receipt' doctrine to the notification procedure. More narrowly, the purpose of the statutory notification, which is 'to provide a formal notification to the claimant that his administrative remedies with the Commission have been exhausted,' Beverly v. Lone Star Lead Construction Corp., 5th Cir. 1971, 437 F.2d 1136, and to inform him that the thirty-day period has begun to run, has not been...

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