Rudolph v. Wagner Elec. Corp.

Decision Date08 November 1978
Docket NumberNo. 78-1193,78-1193
Citation586 F.2d 90
Parties18 Fair Empl.Prac.Cas. 642, 18 Empl. Prac. Dec. P 8677 Joan RUDOLPH, Appellant, v. WAGNER ELECTRIC CORPORATION, Appellee.
CourtU.S. Court of Appeals — Eighth Circuit

Lisa S. Van Amburg, Anderson, Everett, Sedey & Van Amburg, St. Louis, Mo., for appellant.

Michael J. Tannler, Lewis, Rice, Tucker, Allen & Chubb, St. Louis, Mo., argued, for appellee; D. J. Sullivan and Timothy L. Stalnaker, St. Louis, Mo., on brief.

Before HEANEY and STEPHENSON, Circuit Judges, and HANSON, * Senior District Judge.

STEPHENSON, Circuit Judge.

Appellant Joan Rudolph brought a Title VII sex discrimination claim, Civil Rights Act of 1964, As amended, 42 U.S.C. § 2000e et seq., against appellee Wagner Electric Corporation. Upon Wagner's motion, the district court 1 granted summary judgment, dismissing the complaint upon the ground that it failed to meet the time limitation jurisdictional prerequisite of 42 U.S.C. § 2000e-5(e). Rudolph appeals, alleging her claim was timely filed. We affirm the district court.

Rudolph was dismissed from her job with Wagner in February 1973 for "insufficient productivity." Pursuant to the labor contract entered into between Wagner and Local 1104, International Union of Electric, Radio and Machine Workers, AFL-CIO, of which Rudolph was a member, she filed a union grievance in February 1973 protesting that there was not "cause" for discharge as required by the labor contract. The resolution of the dispute was submitted to arbitration in December 1973 and on April 22, 1974, the arbitrator upheld Rudolph's dismissal on the basis of insufficient productivity. On May 15, 1974, Rudolph filed a charge against Wagner with the Equal Employment Opportunity Commission (EEOC), alleging sex discrimination by Wagner. On January 10, 1977, Rudolph received her right to sue letter from the EEOC and on March 28, 1977, she filed suit in district court, alleging that Wagner violated various provisions of Title VII, including failure to remedy the effects of all the discriminatory practices alleged. The district court dismissed Rudolph's action for her failure to file her charge within 180 days of her discharge as required by 42 U.S.C. § 2000e-5(e): "A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred * * *."

Rudolph claims on appeal that the arbitrator's decision, issued pursuant to the contractual labor agreement, upholding the discharge, is the "occurrence" for purposes of section 2000e-5(e), and thus her claim was filed within 180 days of the occurrence. This argument has implicitly been rejected by this court, 2 and has specifically been rejected by the Supreme Court in International Union of Electrical Workers, Local 790 v. Robbins & Myers, Inc., 429 U.S. 229, 234-35, 97 S.Ct. 441, 50 L.Ed.2d 427 (1976).

Rudolph alleges her fact situation can be distinguished from Electrical Workers primarily because Rudolph considered the arbitration decision to be the final disposition, and thus the "occurrence," and she did not consider the February 1973 discharge as final. However, this claim amounts to no more than the bare assertion raised by plaintiffs in Electrical Workers. There the Court stated:

Throughout the proceedings both in the District Court and in the Court of Appeals, both sides appear to have assumed, as did the courts, that the date of discharge was October 25, 1971 (herein February 1973). There being no indication that either party viewed the October 25 (herein February 1973) discharge as anything other than "final," there is certainly no reason for us to now torture this mutual understanding by accepting the bare assertions to the contrary raised by petitioners for the first time before this Court.

Id. at 235, 97 S.Ct. at 446 (footnotes omitted).

The Supreme Court did state that the parties may have a contractual understanding that confirmation from higher management of a recommendation for discharge would be considered as the relevant statutory "occurrence," but that is clearly not the case here. 3 It was understood by Rudolph that she was fired. The labor agreement only provided for a contractual appeal route. It did not render her discharge provisional. 4 Rudolph was dismissed from her employment in February 1973, and that was the occurrence for purposes of the Title VII limitations period.

Rudolph also makes the allegation that Wagner failed to remedy the discharge during the grievance and arbitration process. This "continuing violation" claim is without merit, as it is simply a restatement of Rudolph's allegation that the February 1973 discharge was not the occurrence for Title VII purposes. "Termination of employment either through discharge or resignation is not a 'continuing' violation. It puts at rest the employment discrimination because the individual is no longer an employee." Olson v. Rembrandt Printing Co., 511 F.2d 1228, 1234 (8th Cir. 1975).

Rudolph's second claim on appeal is that even if the February 1973 discharge was the occurrence for purposes of Title VII, pursuing her grievance in accord with the labor contract tolled the time period for filing with the EEOC. Rudolph argues that Electrical Workers, which held to the contrary, should not be applied retroactively to her case.

The standards to be considered in regard to retroactivity were articulated by the Supreme Court in Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971). The major factors are whether the court ruling in question was of first impression or "clearly foreshadowed," whether the retroactivity will further or retard the purpose of the rule, and whether inequities will result by retroactive application of the rule. 5

Although the discussion in Electrical Workers is not articulated as a discussion of the Chevron standards, the Supreme Court considers the substance of each of the Chevron standards in reaching its decision. Initially the Court notes: "We think that petitioners' arguments for tolling the statutory period for filing a claim with the EEOC during the pendency of grievance or arbitration procedures under the collective-bargaining contract are virtually foreclosed by our decisions in Alexander v. Gardner-Denver Co., 415 U.S. 36, (94 S.Ct. 1011, 39 L.Ed.2d 147) (1974), and in Johnson v. Railway Express Agency, 421 U.S. 454, (95 S.Ct. 1716, 44 L.Ed.2d 295) (1975)." International Union of Electrical Workers, Local 790 v. Robbins & Myers, Inc., supra, 429 U.S. at 236, 97 S.Ct. at 446. Although we recognize that these cases occurred after Rudolph's 180 day period for filing with the EEOC had expired, the basis on which this foreshadowing exists is still applicable. The Court in Electrical Workers points out that the legislative history of Title VII is quite clear in revealing the congressional intent to "supplement, rather than supplant" existing remedies for employment discrimination. Id. at 236, n.8, 97 S.Ct. 441. The Court's ruling in Electrical Workers was not a surprise.

At the time of Rudolph's discharge, several courts had dealt directly with the tolling issue herein, and had indicated that the grievance procedure tolls the Title VII filing period. 6 The primary case holding this was Culpepper v. Reynolds Metals Co., 421 F.2d 888 (5th Cir. 1970). However, the only cases Rudolph cites that have occurred in courts within this circuit and upon which her attorney might have relied in deciding that the grievance system would toll the limitations period, are Richard v. McDonnell Douglas Corp., 469 F.2d 1249 (8th Cir. 1972), and Lowry v. Whitaker Cable Corp., 348 F.Supp. 202 (W.D.Mo.1972), Aff'd, 472 F.2d 1210 (8th Cir. 1973). Both of these decisions dealt with the question of whether initially filing a complaint with the EEOC served to toll the running of the statutory time period while state proceedings were utilized. This is a sufficiently different issue; it does not provide the "clear past precedent" that Chevron mentions.

At the time of Rudolph's discharge, the most Rudolph can claim is that she did not know from existing precedent in this circuit whether the grievance procedure would toll the time period for filing with the EEOC.

Even more importantly, under the facts of this case, is the fact that even when one considers the Culpepper line of cases, none of the cases Rudolph relies upon contain language that would have led her to believe that she was prevented from filing her sex discrimination claim with the EEOC. She does not allege that she was under this impression at the time of her discharge. 7 The Electrical Workers Court also discusses this fact in its opinion:

In no way is this a situation in which a party has "been prevented from asserting" his or her rights, Burnett v. New York Central R. Co., 380 U.S. (424), at 429 (85 S.Ct. 1050, 13 L.Ed.2d 941). There is no assertion that (plaintiff) was "prevented" from filing a charge with the EEOC within (the statutory time period); indeed, it is conceded and even urged that she could have filed it the following day, had she so wished.

International Union of Electrical Workers, Local 790 v. Robbins & Myers, supra, 429 U.S. at 237 n.10, 97 S.Ct. at 447. See generally id. at 237-38, 97 S.Ct. 441.

There were no cases that instructed Rudolph not to file her EEOC complaint at that time, and no cases within this circuit indicating that the grievance system tolls the EEOC time period for filing.

The second part of the Chevron test is deciding whether retroactive application of Electrical Workers will further or retard the purpose of the rule announced in Electrical Workers. For example, in Chevron, the case in question included the ruling that state law rather than admiralty law applied in an action on a personal injury occurring on a fixed structure on the Outer Continental Shelf. "A primary purpose underlying the absorption of state law as federal law,"...

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