Whatley v. Department of Educ.

• Citation: 673 F.2d 873
• Decision Date: 23 April 1982
• Docket Number: No. 79-2164,79-2164
• Parties: 29 Fair Empl.Prac.Cas. 428, 28 Empl. Prac. Dec. P 32,655 Paula I. WHATLEY, Plaintiff-Appellant, v. DEPARTMENT OF EDUCATION, et al., Defendants-Appellees. . Unit B *
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 873

673 F.2d 873

29 Fair Empl.Prac.Cas. 428,

28 Empl. Prac. Dec. P 32,655

Paula I. WHATLEY, Plaintiff-Appellant, v. DEPARTMENT OF EDUCATION, et al., Defendants-Appellees.

No. 79-2164.

United States Court of Appeals, Fifth Circuit.

Unit B ^*

April 23, 1982.

Lynn H. Whatley, John R. Myer, Robert H. Stroup, Atlanta, Ga., for plaintiff-appellant.

Marilyn S. G. Urwitz, E.E.O.C., Washington, D. C., amicus curiae.

George P. Shingler, Asst. Atty. Gen., Atlanta, Ga., for defendants-appellees.

Appeal from the United States District Court for the Northern District of Georgia.

Before MORGAN, ANDERSON and THOMAS A. CLARK, Circuit Judges.

R. LANIER ANDERSON, III, Circuit Judge:

This is an employment discrimination action by appellant, a former employee of the Department of Education of the State of Georgia. She asserts claims under 42 U.S.C.A. § 1981 (1974) and § 1983 (Supp.1980) and under Title VII, 42 U.S.C.A. §§ 2000e, et seq. (1974). The district court dismissed the claims under §§ 1981 and 1983 on the ground that they were barred by the most analogous Georgia statutes of limitations and dismissed the Title VII claim on the ground that it had been filed in the district court more than 90 days after receipt of the right-to-sue letter by appellant's attorney. For the reasons stated herein, we affirm in part, reverse in part and remand.

I.

Appellant Paula I. Whatley alleges that she was "constructively discharged" from her job with the Department of Education on September 30, 1974. She filed a timely charge of racial discrimination with the Equal Employment Opportunity Commission ("EEOC") but the right-to-sue letter was not sent until September 27, 1978. Her attorney, Lynn H. Whatley, ¹ received the letter on September 30, 1978. The letter was addressed to appellant in care of her attorney. Appellant, however, did not actually receive the letter until October 5, 1978. This action for reinstatement, restoration of benefits, injunctive relief, and back pay was filed in the district court on January 3, 1979, within 90 days of the date of receipt of the letter by appellant, but more than 90 days from receipt by her attorney.

On appellees' motion to dismiss brought pursuant to Fed.R.Civ.P. 12(b)(6), the district court applied a two-year statute of limitations, Ga.Code Ann. §§ 3-704 and 3-1004 (1975), to the claims under §§ 1981 and 1983, including the claims for equitable relief, and dismissed those claims in their entirety. Furthermore, the district court held that the receipt of the right-to-sue letter by appellant's attorney commenced the 90-day period in 42 U.S.C.A. § 2000e-5(f) (1974) to file a complaint in the district court. The court concluded that the Title VII claim had not been filed until 95 days after receipt by the attorney and dismissed the claim as untimely.

II.

A. Appropriate statute of limitations for claims of employment discrimination under § 1981.

Since § 1981 has no express statute of limitations, the controlling period is the most appropriate one provided in the state wherein the action is filed. See, e.g., Johnson v. Railway Express Agency, 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975). Appellant argues that the most appropriate Georgia statute of limitations is Ga.Code Ann. § 3-704 which provides in part:

All suits for the enforcement of rights accruing to individuals under statutes, acts of incorporation, or by operation of law, shall be brought within twenty years after the right of action shall have accrued: Provided, however, that all suits for the recovery of wages, overtime or damages and penalties accruing under laws respecting the payment of wages and overtime, ... shall be brought within two years after the right of action shall have accrued.

The district court apparently held that § 1981 claims are controlled by the two-year statute of limitations contained in Ga.Code Ann. § 3-1004: ²

Actions for the injury to the person shall be brought within two years after the right of action accrues, ....

The issues are two-fold: (1) which statute, § 3-704 or § 3-1004, is more appropriate to an employment discrimination action and (2) if § 3-704 applies, is it to be applied in a bifurcated manner so that the twenty-year period covers equitable claims and the two-year period covers back pay claims.

We begin with an examination of two decisions of this court, United States v. Georgia Power Co., 474 F.2d 906 (5th Cir. 1973), and Franks v. Bowman Transportation Co., 495 F.2d 398 (5th Cir. 1974), reversed on other grounds 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976). In United States v. Georgia Power Co., supra, we held that the two-year statute of limitations for the recovery of wages contained in § 3-704 was the most analogous limitation on recovery of back pay under Title VII. We reasoned:

Title VII and similar statutes created new causes of action which did not exist at common law or under state statutes. In respect to those causes of action which have no close analogies in state law, civil rights statutes have generally been held governed by the limitation on liabilities created by statute. Note, Federal Statutes Without Limitations Provisions, 53 Columbia L.Rev. 68, 69 (1953). See Smith v. Cremins, 308 F.2d 187 (9th Cir. 1962); Bomar v. Keyes, 162 F.2d 136, 140 (2d Cir. 1947), cert. denied 332 U.S. 825, 68 S.Ct. 166, 92 L.Ed. 400, reh. den. 332 U.S. 845, 68 S.Ct. 266, 92 L.Ed. 416. Cf. Franklin v. City of Marks, 439 F.2d 670 (5th Cir. 1971). However, where federal laws create rights to back pay as part of general remedial relief, courts have generally applied the appropriate state statute of limitations governing actions for unpaid wages. See Blair v. Page Aircraft, (467 F.2d 815 (5th Cir.) ) supra; Boudreaux v. Baton Rouge Marine Contracting Co., (437 F.2d 1011 (5th Cir.) ) supra. We therefore determine that the limitations periods provided in Ga.Code § 3-704 should be applied in this case.

474 F.2d at 924. We also suggested in dicta that § 3-704 might be bifurcated so that the twenty-year statute would cover claims for other than back pay:

Section 3-704 contains two limitations periods: in general, suits for the enforcement of rights under statutes must be brought within 20 years after the action accrues. However, the same statute provides that all such suits seeking recovery of wages, overtime, or damages accruing under statutes respecting the payment of wages are governed by a 2 year limitation period. Thus, without regard to how the 20 year provision may affect the right of the Attorney General to sue for relief from a pattern or practice of discrimination, the right of individual discriminatees to recover lost wages and like damages either in private class actions or the Attorney General's action is subject to Georgia's 2 year limitations period.

474 F.2d at 924 (footnote omitted).

One year later in Franks v. Bowman Transportation Co., supra, we held that § 3-704 applies to an employment discrimination claim brought under § 1981:

Under the same borrowing principle of Beard v. Stephens, supra, we conclude that Ga.Code § 3-704 applies to Franks' action under § 1981. The first sentence of that section providing a twenty-year period for "all suits for the enforcement of rights accruing to individuals under statutes ...", plainly did not bar Franks' § 1981 action. The proviso of the § 3-704 prescribing a two-year period for suits to recover wages applies to the § 1981 action in the same way as to the Title VII action.

495 F.2d at 405-6. Our decision was reversed by the Supreme Court on other grounds; however, the determination of the proper statute of limitations was undisturbed. Franks v. Bowman Transportation Co., 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976).

The overwhelming majority of reported decisions of the federal district courts following Franks and Georgia Power holds that § 3-704 applies, in a bifurcated manner, to employment discrimination claims under § 1981 and Title VII. See Spencer v. General Motors, Inc., 19 E.P.D. P 8968 (N.D.Ga.1978); Gisonde v. Mobile Chemical Co., 17 E.P.D. P 8542 (N.D.Ga.1978); Snowden v. Seaboard Coast Line R.R. Co., 11 E.P.D P 10,929 (S.D.Ga.1976); EEOC v. National Cash Register Co., 405 F.Supp. 562 (N.D.Ga.1975); Ivey v. Western Electric Co., 11 E.P.D. PP 10,899 and 10,900 (N.D.Ga.1975); Ross v. General Motors Corp., 391 F.Supp. 550 (N.D.Ga.1973). Several other district courts have applied the two-year limitation contained in § 3-704 to claims for back pay under § 1981 and Title VII. See Persons v. United Parcel Service, Inc., 502 F.Supp. 1176 (N.D.Ga.1980); Freeman v. Motor Convoy, Inc., 409 F.Supp. 1100, 1114 (N.D.Ga.1976); Johnson v. City of Albany, 413 F.Supp. 782, 788 (M.D.Ga.1976). ³

In the face of these decisions by this court and the district courts sitting in Georgia, appellees contend that none of the decisions adequately considered the interpretation of § 3-704 by the Georgia appellate courts. Specifically they argue that the twenty-year statute of limitations "for the enforcement of rights accruing to individuals under statutes" has been construed to apply only to actions to enforce rights under special statutes or legislation and not under statutes conferring rights upon the public in general. See Bigby v. Douglas, 123 Ga. 635, 51 S.E. 606 (1905); Nixon v. Nixon, 196 Ga. 148, 26 S.E.2d 711 (1943). This precise argument was made in Spencer v. General Motors, Inc., supra. Judge O'Kelley of the United States District Court for the Northern District of Georgia soundly rejected the argument. We adopt the following portion of Judge O'Kelley's opinion in Spencer:

The primary indication of the proper construction to be given section 3-704 was impliedly provided by the Georgia legislature. Prior to 1943, section 3-704 provided for a 20 year statute of limitations for all statutorily created rights. No proviso for actions seeking back pay was present in the original act which was first enacted in 1855. It...