746 F.2d 699 (11th Cir. 1984), 83-8658, Solomon v. Hardison

Docket Nº:83-8658.
Citation:746 F.2d 699
Party Name:Lucius T. SOLOMON, Plaintiff-Appellant, v. C. Hugh HARDISON, et al., Defendants-Appellees.
Case Date:November 01, 1984
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 699

746 F.2d 699 (11th Cir. 1984)

Lucius T. SOLOMON, Plaintiff-Appellant,

v.

C. Hugh HARDISON, et al., Defendants-Appellees.

No. 83-8658.

United States Court of Appeals, Eleventh Circuit

November 1, 1984

As Amended on Denial of Rehearing Jan. 10, 1985.

Page 700

Antonio L. Thomas, Donald M. Dotson, Robert H. Stroup, Atlanta, Ga., for plaintiff-appellant.

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 KRAVITCH and HATCHETT, Circuit Judges, and TUTTLE, Senior Circuit Judge.

HATCHETT, Circuit Judge:

In this case, we examine whether the trial court properly dismissed Solomon's (appellant) claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. Secs. 2000e-2000e-17 (West 1981), and 42 U.S.C.A. Sec. 1983 (West 1974). The court dismissed appellant's Title VII claim because he had not obtained a right-to-sue letter from the Attorney General. The court dismissed appellant's section 1983 claim because it was time barred under a 180-day statute of limitations used by the district court. We hold that the court erred as to both claims and, thus, reverse.

Background

On June 16, 1973, the Georgia Department of Public Safety employed appellant, Lucius T. Solomon, as a Civil Disorder Specialist. The Uniform Division of the Georgia Department of Public Safety is known as the Georgia State Patrol (patrol). Solomon contends that although he has satisfied all the necessary criteria for membership, appellees unjustly refuse to recognize him as a member of the Patrol.

In 1976, Solomon requested recognition as a member of the patrol. This request was allegedly denied by appellees, C. Hugh Hardison (Commissioner) and Kenneth Rearden (Personnel Officer). In June, 1980, the Board of Public Safety, through a subcommittee, ruled that Solomon could not be deemed a member of the Patrol.

On September 6, 1979, January 13, 1981, and May 12, 1981, Solomon filed employment discrimination charges against the Department of Public Safety based on race. This case arises out of a right-to-sue letter Solomon received regarding the charge filed with the Equal Employment Opportunity Commission (EEOC) on May 12, 1981. Solomon's contentions are twofold: first, he contends that by failing and refusing to recognize him as a sworn and certified member of the Georgia State Patrol, appellees, under 42 U.S.C.A. Sec. 1983, denied him due process and equal protection; second, he contends that appellees violated Title VII by taking retaliatory actions against

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him because of the filing of discrimination charges with the EEOC. 1

Solomon was issued a right-to-sue letter from the EEOC on December 4, 1981. He filed his complaint in the district court on March 30, 1982. On April 27, 1983, the trial court dismissed the Title VII and section 1983 claims.

Discussion

The district court dismissed Solomon's Title VII claim because he had not obtained a right-to-sue letter from the Attorney General of the United States; thus, Solomon failed to exhaust administrative remedies. In so ruling, the district court relied on 42 U.S.C.A. Sec. 2000e-5(f)(1). 2 Under this statute, a person seeking to file a Title VII lawsuit against a government, governmental agency, or political subdivision, must first be issued a right-to-sue letter by the Attorney General of the United States. Fouche v. Jekyll Island-State Park Authority, 713 F.2d 1518, 1524 (11th Cir.1983). In this case, the Attorney General did not issue a right-to-sue letter.

The trial court rejected the equitable suspension theory set forth in English v. Ware County Department of Family and Children, 546 F.Supp. 689 (S.D.Ga.1982) holding that the Attorney General right-to-sue provision was more than a procedural precondition. The court dismissed Solomon's Title VII claim because he had "failed to comply with an administrative step required before a Title VII suit may be instituted in federal district court." The section 1983 claim was dismissed because it was time barred.

Two issues are presented to this court: first, whether the section 2000e-5(f)(1) requirement that the Attorney General issue a right-to-sue letter is a jurisdictional prerequisite to this suit, or whether, instead, the requirement is subject to equitable waiver, modification, or estoppel. Second, whether section 45-19-36 is the appropriate statute of limitations in Georgia for a 42 U.S.C.A. Sec. 1983 action.

Title VII

The Fouche court stressed that "all Title VII procedural requirements to suit are henceforth to be viewed as conditions precedent to suit rather than as jurisdictional requirements." Fouche, 713 F.2d at 1525. See also Pinkard v. Pullman-Standard, a Division of Pullman, Inc., 678 F.2d 1211, 1216-17 (5th Cir. Unit B 1982), cert. denied, 459 U.S. 1105, 103 S.Ct. 729, 74 L.Ed.2d 954 (1983). Following the Fouche decision, we hold that the requirement of 42 U.S.C.A. Sec. 2000e-5(f)(1) that a right-to-sue letter must be issued by the Attorney General is not jurisdictional, but instead is subject to equitable waiver, modification, or estoppel. Fouche, 713 F.2d at 1524.

[The district court] assumed the statutory requirement was jurisdictional, and therefore did not discuss equitable modification....

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Having concluded that the requirement that the Attorney General issue the right to sue letter is not jurisdictional, we must now decide whether the facts...

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