E.E.O.C. v. Occidental Life Ins. Co. of California

• Decision Date: 11 May 1976
• Docket Number: No. 75-1705,75-1705
• Parties: 12 Fair Empl.Prac.Cas. 1300, 11 Empl. Prac. Dec. P 10,954 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. OCCIDENTAL LIFE INSURANCE COMPANY OF CALIFORNIA, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 533

535 F.2d 533

12 Fair Empl.Prac.Cas. 1300,

11 Empl. Prac. Dec. P 10,954

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. OCCIDENTAL LIFE INSURANCE COMPANY OF CALIFORNIA, Defendant-Appellee.

No. 75-1705.

United States Court of Appeals, Ninth Circuit.

May 11, 1976.

John Schmelzer, EEOC, Washington, D. C. (argued), for plaintiff-appellant.

Dennis H. Vaughn (argued), Paul, Hastings, Janofsky & Walker, Los Angeles, Cal., for defendant-appellee.

OPINION

Before WRIGHT, KILKENNY and TRASK, Circuit Judges.

EUGENE A. WRIGHT, Circuit Judge:

In this Title VII action the Equal Employment Opportunity Commission (EEOC) appeals from the district court's order of dismissal. We reverse and remand.

I. PROCEEDINGS BELOW

On December 27, 1970, Tamar Edelson filed with the EEOC a charge against Occidental Life Insurance Company (Occidental), alleging that she had been discriminated against because of her sex. She specified that "the most recent date on which this discrimination took place" was October 1, 1970, the date of her discharge by Occidental.

The EEOC referred the charge to the California Fair Employment Practices Commission, in accordance with the provisions of Section 706(c) (42 U.S.C. § 2000e-5(c)). When that agency took no action, the charge was formally filed with the EEOC on March 9, 1971.

The EEOC undertook an investigation and, on February 25, 1972, its District Director issued Findings of Fact that Occidental had discriminated against Ms. Edelson and also had discriminated against many other employees through a variety of practices and policies. Occidental filed exceptions to the findings on March 23, 1972. The EEOC issued its "Reasonable Cause" Determination on February 8, 1973 and during the following year, held a conciliation meeting with Occidental.

When that effort proved unsuccessful, the EEOC filed this action in district court on February 22, 1974.

That court granted Occidental's motion to dismiss, finding that:

1. The EEOC has no authority to file suit more than 180 days after the filing of the underlying charge, or where, as here, the charge was filed prior to the 1972 amendments to Title VII of the Civil Rights Act of 1964, more than 180 days after the effective date of such amendments;

2. Alternatively, the EEOC was barred from filing this suit by the California statute of limitations;

3. Alternatively, the EEOC was barred from proceeding on paragraphs 8(b) and 9(c) of its complaint because the allegations contained therein were outside the scope of the underlying charge; and

4. In any event, the EEOC was barred from seeking back pay for any alleged violations occurring more than two years prior to the filing of the underlying charge.

By its appeal herein, the EEOC challenges only the first three findings by the court.

We hold:

(1) The 180-day language of Section 706(f)(1) (42 U.S.C. § 2000e-5(f)(1)) does not constitute a limitation upon the EEOC's ability to sue in its own name;

(2) This action is not barred by any state limitations period; and

(3) The EEOC properly included subparagraphs 8(b) and 9(c) in its complaint.

II.

THE 180-DAY LANGUAGE OF SECTION 706(f)(1)

Section 706(f)(1) (42 U.S.C. § 2000e-5(f)(1)) states in pertinent part: ¹

. . . (I)f within one hundred and eighty days from the filing of such charge . . . the (EEOC) has not filed a civil action under this section . . . the (EEOC) . . . 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 (A) by the person claiming to be aggrieved or (B) if such charge was filed by a member of the (EEOC), by any person whom the charge alleges was aggrieved by the alleged unlawful employment practice.

The district court found that the above statute precluded the EEOC from bringing this action.

The statute on its face contains no express limitation upon suit by the EEOC. Rather, it precludes civil action by the charging party for 180 days so that the EEOC may during that period pursue conciliation. ² If, after 180 days, the EEOC has neither filed a civil action nor achieved conciliation, the charging party may demand a "right-to-sue" letter. On receipt of it, the charging party has 90 days within which to sue. Should such private action be filed, the EEOC would apparently be restricted to intervention. ³

However, should the person concerned choose not to sue during the allotted 90 days, the EEOC is not prohibited from suing thereafter. The statute in no way limits the time within which it must sue, so long as the charging party has not done so. ⁴

This issue has been before the Courts of Appeals for the Third, Fourth, Fifth, Sixth, Eighth and Tenth Circuits. All have ruled that Section 706(f)(1) (42 U.S.C. § 2000e-5(f)(1)) does not preclude suit by the EEOC after the 180-day period has run. ⁵

Finding this avalanche of authority most persuasive, we adopt the rule that the 180-day language of Section 706(f)(1) does not constitute a limitation upon the EEOC's ability to sue in its own name. We conclude that the district court erred in barring this suit on the basis of the 180-day language in Section 706(f)(1).

III. APPLICABILITY OF RELEVANT STATE LIMITATIONS PERIOD

The district court held alternatively that the EEOC suit was barred by the one-year California statute of limitations found in California Code of Civil Procedure § 340(3).

We have already determined that Section 706(f)(1) (42 U.S.C. § 2000e-5(f)(1)) does not require the EEOC to file suit within 180 days of the date the private charge is filed with that agency. There being no other portion of Title VII susceptible of interpretation as a limitation on the time within which the EEOC must bring suit, we find that there is simply no governing federal limitations period. See Equal Employment Opportunity Comm'n v. Griffin Wheel Co., 511 F.2d 456, 458, aff'd on rehearing, 521 F.2d 223 (5th Cir. 1975).

It is well established that in a private civil rights action, where Congress has not provided a statute of limitations, the state statute applied to similar litigation will be applied to the federal action. Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 462, 95 S.Ct. 1716, 1721, 44 L.Ed.2d 295, 302-03 (1975), and cases cited therein; Griffin v. Pacific Maritime Ass'n, 478 F.2d 1118, 1119 (9th Cir. 1973).

In its complaint the EEOC seeks both injunctive relief and back pay. By its prayer for injunctive relief the EEOC promotes public policy and seeks to vindicate rights belonging to the United States as sovereign. Thus, the EEOC's request for injunctive relief is not subject to any state limitations period. Griffin Wheel, supra, 511 F.2d at 459; Kimberly-Clark, supra,511 F.2d at 1359-60. Cf. United States v. Summerlin, 310 U.S. 414, 60 S.Ct. 1019, 84 L.Ed. 1283 (1940). The district court erred insofar as it barred EEOC's request for injunctive relief on the basis of the California limitations period. ⁶

We consider the request for back pay. Occidental argues that, even though the EEOC is party plaintiff, "(i)nsofar as the . . . suit constitutes a proper legal conduit for the recovery of sums due individual citizens rather than the treasury, it is a private and not a public action." United States v. Georgia Power, 474 F.2d 906, 923 (5th Cir. 1973), quoted in Griffin Wheel, supra, 511 F.2d at 458.

Since we cannot agree that EEOC's request for back pay must be treated as "private" in nature, we believe the district court erred in applying the California limitations period to bar the back pay request.

Our starting point is the recent statement of the Supreme Court in Franks v. Bowman Transp. Co., --- U.S. ----, 96 S.Ct. 1251, 47 L.Ed.2d 444, 44 USLW 4356 (1976): "(C)laims under Title VII involve the vindication of a major public interest . . . ." Id. at ---- n.40, 96 S.Ct. at 1271, 47 L.Ed.2d at 469, 44 USLW at 4365 n.40, quoting Section-By-Section Analysis, accompanying the Equal Employment Opportunity Act of 1972 Conference Report, 118 Cong.Rec. 7166, 7168 (1972).

The Court in Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975), discussed in some detail the nature of Title VII claims for back pay:

As the Court observed in Griggs v. Duke Power Co., 401 U.S. (424), at 429-430, 91 S.Ct. 849, at 853, 28 L.Ed.2d 158, 163, the primary objective (of Title VII) was a prophylactic one:

"It was to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of white employees over other employees."

Backpay has an obvious connection with this purpose. If employers faced only the prospect of an injunctive order, they would have little incentive to shun practices of dubious legality. It is the reasonably certain prospect of a backpay award that "provide(s) the spur or catalyst which causes employers and unions to self-examine and to self-evaluate their employment practices and to endeavor to eliminate, so far as possible, the last vestiges of an unfortunate and ignominious page in this country's history." United States v. N. L. Industries, Inc., 479 F.2d 354, 379 (CA8 1973).

It is also the purpose of Title VII to make persons whole for injuries suffered on account of unlawful employment discrimination.

Id. at 417-18, 95 S.Ct. at 2371, 45 L.Ed.2d at 297. (Emphasis added.)

That an award of back pay promotes the primary statutory objective of deterrence ⁷ was also noted by the Sixth Circuit in Meadows v. Ford Motor Company, 510 F.2d 939, 948 (6th Cir. 1975).

The Moody Court noted that "(t)he backpay provision (of Title VII) was expressly modeled on the backpay provision of the National Labor Relations Act." 422 U.S. at 419 and n.11, 95 S.Ct. at 2372, 45 L.Ed.2d at 297. It is established doctrine that a back pay order under Section 10(c) of the National Labor Relations Act (29 U.S.C. § 160(c)) " 'is a reparation order designed to vindicate the public policy...