Kocian v. Getty Refining & Marketing Co., 82-1246

Citation707 F.2d 748
Decision Date15 June 1983
Docket NumberNo. 82-1246,82-1246
Parties31 Fair Empl.Prac.Cas. 1211, 31 Empl. Prac. Dec. P 33,603 KOCIAN, Charlotte T. v. GETTY REFINING & MARKETING COMPANY Appeal of Charlotte KOCIAN.
CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Alice W. Ballard (argued), Samuel & Ballard, Philadelphia, Pa., Steven K. Kudatzky, Tomar, Parks, Seliger, Simonoff & Adourian, Haddonfield, N.J., for appellant.

Steven B. Feirson (argued), Alan D. Berkowitz, Dechert Price & Rhoads, Philadelphia, Pa., for appellees.

Before HUNTER, GARTH, Circuit Judges, and STERN, * District Judge.

OPINION OF THE COURT

JAMES HUNTER, III, Circuit Judge:

Charlotte T. Kocian filed a complaint in the United States District Court for the Eastern District of Pennsylvania alleging that her employer, Getty Refining and Marketing Company ("Getty"), discriminated against her in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Secs. 2000e to 2000e-17 (1976 & Supp. III 1979). Getty filed a motion for summary judgment asserting that Ms. Kocian's action was barred by the statute of limitations in 42 U.S.C. Sec. 2000e-5(e) (1976). The district judge granted Getty's motion, and Ms. Kocian appeals. We will affirm.

I. Background

Ms. Kocian was employed by Getty as a chemical engineer at its Delaware City, Delaware refinery from October 29, 1979, until February 16, 1980. She alleges, inter alia, that on February 16, 1980, she was "constructively discharged" after a dispute with her supervisor.

Ms. Kocian went to the Philadelphia area Equal Opportunity Commission ("EEOC") to file a discrimination charge against Getty on May 19, 1980. The office closed before she could see a counselor, but she did fill out a preliminary intake form. She was told that a counselor would be in touch with her.

Ms. Kocian retained counsel (not her counsel in this appeal) and first met with her on August 4, 1980, 170 days after the discharge. She returned with her lawyer to the EEOC office on August 11, 1980, 177 days after her discharge. Ms. Kocian, her lawyer, and an EEOC intake officer began drafting her charge but did not complete their drafting on that day.

On the following day the EEOC officer called Ms. Kocian to read her his completed proposed charge and to indicate that he would mail it to her for her signature. On August 15, 1980, the 181st day after the discharge, he mailed the "potential charge" to Ms. Kocian and told her to review it, sign it, and return it to the EEOC "[i]n order for the Commission to proceed any any further." App. at 60a. He also stated that "[b]ecause a charge must be filed within the time limitation imposed by law, I urge you to complete these three steps as soon as possible." Id.

Ms. Kocian and her attorney reviewed the proposed charge and decided to make some corrections. They drafted another charge and mailed it to the EEOC officer on August 28, 1980. They instructed him either to use their draft or to incorporate their corrections into his initial proposed charge. He returned the corrected charge for Ms. Kocian's signature on September 4, 1980, and again indicated that she should return the charge immediately because "a charge must be filed within the time limitations imposed by law." App. at 57a. Ms. Kocian signed the formal charge and mailed it to the EEOC on September 8, 1980, 205 days after Ms. Kocian's discharge. The EEOC's time stamp indicates that the EEOC did not receive the charge until October 3, 1980. Thus Ms. Kocian's formal charge was not filed with the EEOC until 230 days after the date of the last act of discrimination against her.

Ms. Kocian never filed a charge with the Delaware Department of Labor, the state deferral agency approved by the EEOC. See 42 U.S.C. Sec. 2000e-5(c) (1976). The EEOC did not defer Ms. Kocian's charge to the state agency because the agency's ninety-day statute of limitations had run. The affidavit of Johnny J. Butler, District Director of the EEOC, which was submitted by Ms. Kocian in opposition to Getty's motion for summary judgment, states as follows:

Pursuant to the Rules and Regulations of the Commission and the procedures in the Commission's Compliance Manual, no copy of [Ms. Kocian's] charge was sent to the Delaware Department of Labor because more than ninety (90) days had passed since the complained of event; and this agency has a ninety (90) day filing period. This was the proper procedure at the time.

App. at 61a-62a.

On March 31, 1981, the EEOC issued a Right to Sue Letter to Ms. Kocian, and she filed suit in district court within ninety days of receipt of that letter. Getty then filed a motion for summary judgment arguing that Ms. Kocian had not filed her charge with the EEOC within 180 days of the date of the last act of discrimination against her as 42 U.S.C. Sec. 2000e-5(e) (1976) requires. 1 The district court granted Getty's motion and entered judgment against Ms. Kocian.

II. Discussion

Section 706(e) of Title VII reads in pertinent part:

A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred ... except that in a case of an unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings with a State or local agency with authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, such charge shall be filed by or on behalf of the person aggrieved within three hundred days after the alleged unlawful employment practice occurred....

42 U.S.C. Sec. 2000e-5(e) (1976). On appeal Ms. Kocian argues that her filing was timely because that statute allows her 300 days to file a charge with the EEOC. In the alternative she argues that even if the 180-day period applies, the circumstances of her case warrant an equitable tolling of the statute of limitations.

A. The Applicable Limitations Period

Ms. Kocian argues that the applicable limitations period for filing with the EEOC is 300 days. She asserts that her charge filed on October 3, 1980, 230 days after her discharge, is therefore timely. 2 Getty contends, however, that the 300-day limitations period for filing with the EEOC only applies in deferral states when proceedings have been instituted in the state or local agency. Getty argues that because neither Ms. Kocian nor the EEOC instituted proceedings with the Delaware Department of Labor, Kocian is not entitled to the extended 300-day time period. We agree.

The plain language of the statute supports Getty's position. The statute makes clear that the 300-day period applies only when "the person aggrieved has initially instituted proceedings with a State or local agency." 42 U.S.C. Sec. 2000e-5(e) (1976).

The purpose behind the extended 300-day limitations period also supports Getty's position. In Mohasco Corp. v. Silver, 447 U.S. 807, 100 S.Ct. 2486, 65 L.Ed.2d 532 (1980) the Supreme Court stated

The [legislative] history identifies only one reason for treating workers in deferral States differently from workers in other States: to give state agencies an opportunity to redress the evil at which the federal legislation was aimed, and to avoid federal intervention unless its need was demonstrated.

Id. at 821, 100 S.Ct. at 2494. Here, the purpose in allowing the extended limitations period has not been served because the state agency had no opportunity to address Ms. Kocian's claim. To allow a Title VII litigant the benefit of the extended limitations period merely because she fortuitously works in a deferral state would ignore the plain language of the statute and its legislative purpose. Thus a litigant who does not "initially institute" proceedings in the state agency is not entitled to the 300-day limitations period. Dixon v. Montgomery County, 23 Fair Empl.Prac.Cas. (BNA) 865, 867 (D.Md.1980); see Bronze Shields, Inc. v. New Jersey Department of Civil Service, 667 F.2d 1074, 1080 n. 14 (3d Cir.1981), cert. denied, --- U.S. ----, 102 S.Ct. 3510, 73 L.Ed.2d 1384 (1982); Hart v. J.T. Baker Chemical Corp., 598 F.2d 829, 834 (3d Cir.1979).

The Supreme Court has long sanctioned the EEOC's practice of instituting proceedings in state or local agencies on behalf of Title VII plaintiffs. Love v. Pullman Co., 404 U.S. 522, 525, 92 S.Ct. 616, 618, 30 L.Ed.2d 679 (1972). In Mohasco Corp. v. Silver, 447 U.S. at 816-17, 100 S.Ct. at 2492-2493, the Supreme Court held that if the EEOC institutes such a proceeding, the litigant is entitled to the 300-day statute of limitations for filing with the EEOC. In the instant case, however, the EEOC did not defer Ms. Kocian's charge because the ninety-day state statute of limitations had already run.

Ms. Kocian argues that if the EEOC had deferred her charge to the state agency, even though it would have been untimely, she would have been entitled to the 300-day period. She asserts that we should not allow the inaction of the EEOC to prejudice her federal rights. Accordingly she urges us to hold that she is entitled to the 300-day limitations period as a matter of law.

We agree that if the EEOC had deferred her charge she would have been entitled to the 300-day period. Relying on Oscar Mayer & Co. v. Evans, 441 U.S. 750, 99 S.Ct. 2066, 60 L.Ed.2d 609 (1979), we held that an Age Discrimination in Employment Act ("ADEA") plaintiff was entitled to the 300-day limitations period even though his filing in the state agency was untimely. Davis v. Calgon Corp., 627 F.2d 674, 675 (3d Cir.1980) (per curiam), cert. denied, 449 U.S. 1101, 101 S.Ct. 897, 66 L.Ed.2d 827 (1981). 3 See Jones v. Airco Carbide Chemical Co., 691 F.2d 1200, 1202-04 (6th Cir.1982). 4

However, the EEOC was not obligated under its then-existing regulations to defer Ms. Kocian's charge....

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