595 F.2d 711 (D.C. Cir. 1978), 76-1790, Shehadeh v. Chesapeake and Potomac Telephone Co. of Maryland

Docket Nº:76-1790.
Citation:595 F.2d 711
Party Name:Shirley C. SHEHADEH, Appellant, v. CHESAPEAKE AND POTOMAC TELEPHONE COMPANY OF MARYLAND, et al.
Case Date:November 08, 1978
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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595 F.2d 711 (D.C. Cir. 1978)

Shirley C. SHEHADEH, Appellant,

v.

CHESAPEAKE AND POTOMAC TELEPHONE COMPANY OF MARYLAND, et al.

No. 76-1790.

United States Court of Appeals, District of Columbia Circuit

November 8, 1978

Submitted without Oral Argument Oct. 19, 1977.

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Patricia M. Worthy, Washington, D. C., was on brief, for appellant.

Bernard M. Dworski, Washington, D. C., was on brief, Douglass J. McCollum, Washington, D. C., for appellees.

Before FAHY, Senior Circuit Judge, and TAMM and ROBINSON, Circuit Judges.

Opinion for the Court filed by ROBINSON, Circuit Judge.

SPOTTSWOOD W. ROBINSON, III, Circuit Judge:

This appeal exacts a review of the District Court's summary dismissal of an employment-discrimination action. 1 Appellant had alleged that, because of her sex and her husband's Arabic descent, she was discharged in 1968, was refused rehiring thereafter, and was effectively barred from other jobs by the former employer's persistent release to prospective employers of false and derogatory references, all assertedly in violation of Title VII of the Civil Rights Act of 1964. 2 The District Court reasoned that the gravamen of the suit was the 1968 discharge and, rejecting appellant's legal theory of continuing discrimination, concluded that the firing was immune from attack because, in its view, appellant had failed to pursue available administrative remedies in timely fashion. 3 The court also denied appellant leave to augment her complaint by averment of another discriminatory

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refusal by appellees in 1975 to employ her. 4

We affirm the District Court's ruling on appellant's proposed supplementation since, even with full proof of all facts charged, it would not have disclosed conduct entitling her to relief. 5 We find, however, that quite apart from the 1968 discharge, appellant sufficiently alleged a continuing practice of adverse referencing violative of Title VII, 6 and that she timely and satisfactorily exhausted administrative remedies with respect thereto. 7 Accordingly, we reverse the District Court's judgment of dismissal and remand the case for further proceedings.

I. FACTUAL AND PROCEDURAL BACKGROUND

In 1955, appellant Shehadeh was hired by Chesapeake & Potomac Telephone Company of Maryland (C&P of Maryland), one of the appellees here. In 1968, while pregnant, she was released. Her efforts on several occasions thereafter to gain reemployment with the company were unavailing. 8 In September, 1971, she applied for a position with Capital Credit Corporation, but that did not materialize.

On January 22, 1973, appellant lodged two charges of employment discrimination with the Equal Employment Opportunity Commission. One alleged that C&P of Maryland had dismissed her because of her pregnancy, and had discriminatorily refused to rehire her and had provided adverse references to numerous prospective employers including Capital Credit Corporation because of her sex. Appellant protested concurrently in her second charge that Capital Credit had denied her employment for invidious reasons.

In February, 1973, appellant was rebuffed in her effort to secure a job with American Automobile Association. On March 10 ensuing, she filed a third charge against the Association for discriminatory refusal to hire in which she implicated C&P of Maryland as the instigator. 9 On April 27, 1973, appellant complained to the Commission of similar disparate treatment by Reuben H. Donnelley Corporation in regard to her unfruitful application two weeks earlier for employment with that firm. Again she attributed her lack of success to unlawful interference by C&P of Maryland.

In May, 1974, the Commission notified appellant that it lacked jurisdiction over the filing of January 22, 1973 her first because the charge was not initiated within 210 days of the discriminatory act alleged, as required by Title VII. 10 As a matter of course, the Commission, in July and October of 1975, issued to appellant notices of a

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right to sue 11 on all grievances asserted theretofore.

On September 17, 1975, appellant filed an employment application with both C&P of Maryland and Chesapeake & Potomac Telephone Company of the District of Columbia (C&P of D.C.). On December 18 following, while the application was still pending, appellant proffered her fifth charge to the Commission. Therein she averred that the two companies had discriminatorily discharged her in 1968, had wrongfully refused to reemploy her subsequently, and by means of adverse references had discouraged prospective employers from engaging her. She indicated additionally that she had tendered a job application to them during the previous September.

On October 3, 1975, appellant instituted a Title VII action in the District Court against Capital Credit Corporation, American Automobile Association, Reuben H. Donnelley Corporation and C&P of D.C. In November, 1975, the court permitted appellant to file an amended complaint incorporating the original complaint, adding C&P of Maryland as a defendant, and appending state-law claims of slander and tortious interference with contract rights. In February, 1976, appellant received notice of her right to sue on the fifth and last charge submitted to the Commission. At the end of that month she moved in the District Court for leave to file a second amended complaint. 12 Therein she incorporated the allegations of the first amended complaint and recounted the substance of the December, 1975, charge.

By stipulation, all claims against Capital Credit Corporation, American Automobile Association and Reuben H. Donnelley Corporation were dismissed with prejudice. 13 The Title VII counts contained in appellant's first amended complaint were similarly abandoned as to C&P of D.C. 14 Thus C&P of Maryland was left as sole defendant to the Title VII counts of the first amended complaint. Both telephone companies, however, remained defendants to the state-law counts of that complaint, as well as potential defendants to the still unfiled second amended complaint.

Subsequently, on May 21, 1976, the District Court granted appellees' motion to dismiss the first amended complaint in its entirety. The court held that it lacked subject-matter jurisdiction over the Title VII counts because appellant had failed to present an administrative complaint within the time prescribed by Title VII. 15 Though appellant maintained that, in light of her allegations of continuing discriminatory conduct, her charges were seasonably filed with the Commission, the court deemed only the effects of the original discharge continuing. 16 Viewing appellant's proposed second amended complaint as one in essence addressed to the 1968 termination both in allegations and requested remedies, the court declined to indulge its filing, 17 and the pendent state-law claims were then dismissed because no federal causes remained to be tried. 18 Appellant now urges on appeal that the District Court should have entertained the claims advanced in the first amended complaint, or at least those that she endeavored to assert in the second.

II. TIMELINESS AND EFFICACY OF THE ADMINISTRATIVE CHARGES

Prior to institution of suit, an individual asserting a violation of Title VII must register his grievance with the Equal

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Employment Opportunity Commission. 19 When deferral to a state agency is warranted, the charge must be lodged with the Commission within 300 days "after the alleged unlawful practice occurred." 20 In the event of dismissal by the Commission, or its failure to institute its own suit or to arrange a conciliation accord within 180 days after submission of the charge, a "right-to-sue" notice is issued to the complaining party. 21 Thereupon, and within 90 days, the complainant may commence a civil action against the respondent named in the charge. 22

A complainant who is tardy either in filing his discrimination charge with the Commission or in subsequently instituting his suit in court ordinarily will be denied a

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judicial audience. 23 In the instant case, all agree that appellant seasonably initiated litigation in the District Court. At issue is whether the forerunning tender of her accusations to the Commission, upon which her cause of action is predicated, came fatally late.

  1. The Discriminatory Activities Charged

    Appellant's first amended complaint in the District Court was predicated upon four administratively-presented charges. The earliest, submitted on January 22, 1973, protested discrimination by C&P of Maryland with respect to "conditions of separation" and rehiring, 24 and by Capital Credit Corporation in its denial of the opportunity to work for it. It further averred that C&P of Maryland

    continues to discriminate against me in obtaining other employment because of (a former supervisor's) intent (through the C & P Employment Ofc) to prohibit me from doing so and has been successful on enumerous (Sic ) occasions since my termination . . . up until now. Capital Credit is one of the offices who was greatly influenced by (the supervisor). They had already hired me, but later failed to allow me to report to work after talking to (the supervisor). 25

    Appellant's third administrative charge, lodged on March 10, 1973, described discriminatory interference by C&P of Maryland with appellant's efforts to obtain employment with American Automobile Association. 26 Her fourth administrative charge, nominally against Reuben H. Donnelley Corporation, was filed on April 27, 1973. It proclaimed that, as a result of unlawful activity by appellee, the Donnelley Corporation had refused to hire appellant a fortnight earlier.

    Because appellant stipulated to the District Court's dismissal of all alleged wrongdoers except the two telephone companies, 27 and because she abandoned further effort to implicate...

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