Gonzalez v. Firestone Tire & Rubber Co.

• Decision Date: 21 January 1980
• Docket Number: No. 77-3170,77-3170
• Parties: 21 Fair Empl.Prac.Cas. 1367, 22 Empl. Prac. Dec. P 30,586 Herman GONZALEZ, etc., Plaintiff-Appellant, v. FIRESTONE TIRE & RUBBER CO. et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 241

610 F.2d 241

21 Fair Empl.Prac.Cas. 1367,

22 Empl. Prac. Dec. P 30,586

Herman GONZALEZ, etc., Plaintiff-Appellant, v. FIRESTONE TIRE & RUBBER CO. et al., Defendants-Appellees.

No. 77-3170.

United States Court of Appeals, Fifth Circuit.

Jan. 21, 1980.

David T. Lopez, Houston, Tex., for plaintiff-appellant.

Everett Vann Eberhardt, Washington, D. C., for E.E.O.C., amicus curiae.

Hugh E. Hackney, Houston, Tex., Earl S. Hines, Beaumont, Tex., for defendants-appellees.

Marlin Thompson, Orange, Tex., for OCAW Local 4-836, AFL-CIO.

Appeal from the United States District Court for the Eastern District of Texas.

Before SIMPSON, CHARLES CLARK and FRANK M. JOHNSON, Jr., Circuit Judges.

CHARLES CLARK, Circuit Judge:

Herman Gonzalez appeals the dismissal of his action against the Firestone Tire and Rubber Co. (Firestone) in which he alleged that it violated Title VII and 42 U.S.C. § 1981 by using an unvalidated testing system that discriminated against Spanish-surnamed employees. The district court dismissed Gonzalez's Title VII claim for failure to file suit within ninety days of the first of two right-to-sue letters he received from the Equal Employment Opportunity Commission (EEOC). Following the failure of Gonzalez's counsel to appear at a scheduled pre-trial conference, the court dismissed his section 1981 claim for failure to prosecute. We reverse and remand.

I. Factual Setting

An employee of a division of Firestone located in Orange, Texas, Gonzalez filed a charge of discrimination with the EEOC against Firestone in September, 1973, alleging that it had discriminated against him and other minority employees in selecting employees for promotion or transfer to better paying jobs. Specifically, he asserted that Firestone had engaged in discriminatory practices when it rejected his application in August, 1972, for transfer to a "Maintenance Trainee Program" and his applications in October, 1972, for transfer to openings in the Plant Protection department and the plant laboratory. He asserted that, following these events, he continued to list himself as available for transfer, hoping to be transferred into the maintenance department; yet Firestone in September, 1973, hired eight temporary mechanics from outside the plant without ascertaining whether he wished to be upgraded to one of these temporary openings.

After investigating Gonzalez's allegations, the EEOC issued a determination letter to him on April 30, 1973, stating it had concluded that reasonable cause did not exist to believe that Firestone had violated Title VII. The letter indicated the EEOC had found that prior to October 31, 1971, Firestone selected employees for hiring, promotion, training, and transfer partially on the basis of their scores on an unvalidated testing system, and that Firestone continued to administer the tests for the purpose of conducting a validation study. However, the EEOC concluded that this continued use of the tests was lawful in the absence of evidence showing that it had a disparate effect upon a class of employees. The determination letter ended with the statement:

This determination concludes the Commission's processing of the subject charge. Should the Charging Party wish to pursue this matter further, the Charging Party may do so by filing a private action in Federal District Court within 90 days after receipt of this letter and by taking other procedural steps set forth in the enclosed NOTICE OF RIGHT-TO-SUE.

The notice of right-to-sue informed Gonzalez that he had the right to bring a civil action against Firestone if he wished to pursue his charge further. It unequivocally stated that he would lose this right if he did not file suit within ninety days after he received the notice.

On April 30, 1974, forty-one days after the issuance of the no-cause determination letter and the right-to-sue notice, the EEOC informed Gonzalez and Firestone that, pursuant to its regulations, it had decided to reconsider its earlier determination; that it would notify the parties if it altered the prior determination; and that it would issue a new determination, if necessary, once it completed the reconsideration process. On August 26, 1974, the EEOC issued a second determination letter to Gonzalez in which it concluded that reasonable cause existed to believe that Firestone had violated Title VII. It found that Firestone's continuation of its testing program, ostensibly for the purpose of conducting a validation study, had a "chilling effect" on minority applicants. The letter noted that Firestone had not yet furnished the EEOC with documentation of the validation study and that Firestone's current collective bargaining agreement specified one of the criteria for the selection of employees for the Maintenance Trainee Program to be "grades attained on battery of tests selected and validated to provide information on aptitudes, interests and abilities to successfully perform the required work and complete the required curriculum." The EEOC concluded that Firestone's use of the unvalidated testing procedure had restricted Gonzalez's ability to qualify for transfer to the Maintenance Trainee Program and that, as a result, Gonzalez had "suffered tangible and ascertainable economic loss based on his national origin." The EEOC then invited the parties to resolve the discrimination charge informally.

The EEOC's efforts at reconciliation failed, and on August 18, 1976, it issued a second right-to-sue notice to Gonzalez. On November 19, 1976, he instituted this action. Gonzalez alleged that Firestone had violated Title VII and 42 U.S.C. § 1981 by using a discriminatory testing system that denied him and other Spanish-surnamed employees hiring, promotional, earning, training, and transfer opportunities. Gonzalez sought relief individually and on behalf of all of Firestone's past, present, and prospective Spanish-surnamed employees, and he requested the district court to grant injunctive relief, compensatory and punitive damages, and attorney's fees.

In its answer to Gonzalez's complaint, Firestone denied that it had engaged in discriminatory practices and asserted that Gonzalez's claims were barred by the applicable statutes of limitation and the equitable doctrine of laches. Firestone then filed a motion requesting the court to dismiss Gonzalez's action for lack of jurisdiction and for failure to state a claim upon which relief could be granted. In support of its motion, Firestone asserted that the discriminatory act alleged by Gonzalez was its failure to transfer or promote him to a better job in September, 1972; yet he did not file a charge of discrimination with the EEOC until September, 1973, and did not file suit against Firestone until November, 1976. It argued that under 42 U.S.C. § 2000e-5(e) his failure to file a charge of discrimination with the EEOC within 180 days of the alleged discriminatory act should bar his Title VII claim and that the two-year statute of limitations prescribed by Tex.Rev.Civ.Stat. art. 5526 barred his section 1981 action. Firestone also urged that Gonzalez's failure to file suit within ninety days of his receipt of the first right-to-sue notice prevented the court from having jurisdiction over his Title VII claim.

In response to Firestone's motion to dismiss, Gonzalez contended that he had predicated his causes of action under Title VII and section 1981 upon allegations of continuing discrimination and that he had initiated this action within ninety days of his receipt of the second notice of right-to-sue.

The district court dismissed Gonzalez's Title VII claim, but it denied the motion to dismiss his section 1981 claim. However, when Gonzalez's counsel failed to appear at a scheduled pre-trial conference, the district court granted Firestone's motion to dismiss his section 1981 claim with prejudice for failure to prosecute.

On this appeal Gonzalez argues (A) that he met the ninety-day limitations period set by 42 U.S.C. § 2000e-5(f)(1) by filing suit within ninety days of his receipt from the EEOC of the second notice of right-to-sue, urging, in the alternative, that the ninety-day requirement should be equitably modified because he was misled by the actions of the EEOC; (B) that the district court abused its discretion in dismissing his section 1981 claim solely for the failure of his counsel to appear at a pre-trial conference; and (C) that he had timely asserted his claims because Firestone's discriminatory practices constituted continuing discrimination.

II. Dismissal of Gonzalez's Title VII Claim

Gonzalez and the EEOC, appearing as amicus curiae, assert that the district court erred in dismissing Gonzalez's Title VII claim for failure to file suit within ninety days of his receipt of the first notice of right-to-sue issued to him by the EEOC. ¹ They urge that by notifying the parties within that ninety-day period that it would reconsider the initial no-cause determination, the EEOC effectively vacated the determination upon which the notice of right-to-sue depended for its validity. In the alternative they argue that because the actions of the EEOC misled Gonzalez into believing that he did not have to file suit within the first ninety-day period, the time period in which he was required to file should be equitably tolled. ²

Firestone responds by urging that once the EEOC issues a right-to-sue notice to a charging party, he must filed his Title VII claim within the time limits prescribed by 42 U.S.C. § 2000e-5(f)(1) to give the district court jurisdiction over the action. It argues that the EEOC has no authority under the statute or its regulations to issue a second notice of right-to-sue. Noting that the first notice of right-to-sue received by Gonzalez clearly and unambiguously indicated that he would lose his right to bring a private civil action based on his charge of discrimination if he did not file his suit within ninety days, Firestone contends that Gonzalez could...