Brown v. Continental Can Co.

• Decision Date: 08 July 1985
• Docket Number: No. 84-2052,84-2052
• Parties: 38 Fair Empl.Prac.Cas. 695, 37 Empl. Prac. Dec. P 35,420 Horace BROWN, Plaintiff/Appellant, v. CONTINENTAL CAN COMPANY, Defendant/Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 810

765 F.2d 810

38 Fair Empl.Prac.Cas. 695,

37 Empl. Prac. Dec. P 35,420

Horace BROWN, Plaintiff/Appellant, v. CONTINENTAL CAN COMPANY, Defendant/Appellee.

No. 84-2052.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Feb. 12, 1985.

Decided July 8, 1985.

Susan Elizabeth Rees, Atty. E.E.O.C., Washington, D.C., as amicus curiae.

Michael R. Bush, Legal Services of Northern California, Chico, Cal., for plaintiff, appellant.

Christopher J. Rillo, Janet F. Bentley, Daniel P. Westman, Thelen, Marrin, Johnson, & Bridges, San Francisco, Cal., for defendant, appellee.

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

Before PREGERSON and FERGUSON, Circuit Judges, and STEPHENS, ^* District Judge.

FERGUSON, Circuit Judge:

The district court dismissed plaintiff Horace Brown's Title VII civil suit for lack of subject matter jurisdiction. Because Brown filed his action within ninety days of a valid right-to-sue letter issued upon a prior, reasonably related incident of discrimination by the same employer, we reverse.

I

Horace Brown ("Brown"), a black male employed by Continental Can Company ("Continental") from July 7, 1968 to October 20, 1978, filed two charges with the Equal Economic Employment Opportunity Commission ("EEOC") alleging discrimination by Continental. His first charge, filed in July 1977, alleged he had been removed from a training program because of his race. His second charge, alleging discrimination in his termination by Continental, was filed in November 1978 after he had been discharged by Continental on October 20, 1978.

The EEOC assigned the number 092772576 to the charge alleging discrimination in training and number 092790276 to the charge alleging discrimination in termination. The second charge, alleging discrimination in termination, was assigned for investigation before the first charge, alleging discrimination in training. Due to Brown's failure to respond to EEOC correspondence, the termination charge was dismissed on December 6, 1983. A right-to-sue letter bearing the charge number 092790276 was issued to Brown on January 26, 1983. Brown brought no civil action within the required ninety days of his receipt of this letter. 42 U.S.C. Sec. 2000e-5(f)(1).

The first charge alleging discrimination in training was subsequently assigned for investigation. The EEOC determined that there was reasonable cause to believe that the allegations in this charge were true. Evidence indicates that the EEOC officer assigned to this charge investigated the termination charge at this time. On November 17, 1983, when all attempts at conciliation with Continental had failed, the EEOC issued a right-to-sue letter bearing only the charge number 092772576 (the training charge) to Brown.

Within the ninety-day limitation period prescribed by statute, Brown filed a pro se Title VII form complaint against Continental. In his complaint he alleged that his discharge by Continental was racially motivated. Brown also requested court-appointed counsel.

Continental moved to dismiss the action as untimely. The district court granted Continental's motion, dismissing Brown's complaint with prejudice because of his failure to file within ninety days of receipt of the January 26, 1983 right-to-sue letter issued on the termination charge. 42 U.S.C. Sec. 2000e-5(f)(1). Brown appeals the dismissal of his complaint to this court.

On appeal, the issues presented to this court are: (1) Whether the district court erred in dismissing Brown's complaint as untimely when it was filed within ninety days of receipt of a notice of right to sue issued on a prior, related charge against the same employer; (2) Whether the district court abused its discretion in refusing to consider Brown's request for appointment of counsel; and (3) Whether this action is barred by laches.

II

Section 706(f)(1) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e-5(f)(1), provides that within ninety days after the issuance of a right-to-sue letter by the EEOC, "a civil action may be brought against the respondent named in the charge." While it is true that Brown did not file his action alleging that his discharge had been racially motivated within ninety days of the right-to-sue letter issued upon that charge, he did file his action within ninety days of the right-to-sue letter issued upon his first EEOC charge alleging discrimination in his removal from a training program.

It is well-established in the Ninth Circuit that an employee filing a civil action within ninety days of receipt of a valid right-to-sue letter may include incidents of discrimination in his complaint even though such incidents are not listed in his charge to the EEOC upon which that letter was issued, if such incidents are "like or reasonably related to the allegations of the EEOC charge, including new acts occurring during the pendency of the charge before the EEOC." Oubichon v. North American Rockwell Corp., 482 F.2d 569, 571 (9th Cir.1973). See also Ramirez v. National Distillers & Chemical Corp., 586 F.2d 1315, 1320 (9th Cir.1978). Under this standard Brown's action is timely because his termination constituted a new act of alleged discrimination that was reasonably related to and occurred during the pendency of his EEOC charge alleging discrimination in training upon which the November 17, 1983 right-to-sue letter was issued.

There is, however, one question in this case which has not been addressed by this circuit in this context before. Brown filed two charges with the EEOC and the "reasonably related" and after-occurring incident of discrimination in termination was the subject of one of these charges. The EEOC issued a right-to-sue letter on that charge in January 1983 and Brown did not file within ninety days of that letter. The question therefore is whether, even though his discharge by Continental in 1978 "constituted a new act of alleged discrimination that was reasonably related to [Brown's] original charge" of training discrimination, Ramirez, 586 F.2d at 1320, the issuance of the first right-to-sue letter precludes Brown from alleging discrimination in his discharge in this action.

Both Ninth Circuit and Supreme Court cases involving Title VII procedural requirements indicate that the answer here should be "no." As this circuit stated in Rice v. Hamilton Air Force Base Commissary, 720 F.2d 1082 (9th Cir.1983), " '[t]he Equal Employment Opportunity Act is a remedial statute to be liberally construed in favor of the victims of discrimination,' " id. at 1084 (quoting Mahroom v. Hook, 563 F.2d 1369, 1375 (9th Cir.1977), cert. denied, 436 U.S. 904, 98 S.Ct. 2234, 56 L.Ed.2d 402 (1978) ) (brackets in Rice ), and " 'a technical reading [of Title VII] would be "particularly inappropriate in a statutory scheme in which laymen, unassisted by trained lawyers, initiate the process." ' " Id. (quoting Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 397, 102 S.Ct. 1127, 1134, 71 L.Ed.2d 234 (1982) (quoting Love v. Pullman Co., 404 U.S. 522, 527, 92 S.Ct. 616, 619, 30 L.Ed.2d 679 (1972) ) (brackets in Rice ) ). Brown filed a civil complaint within ninety days of a valid right-to-sue letter issued upon his charge alleging discrimination in training. Brown filed the training charge with the EEOC on July 26, 1977. He was discharged by Continental on October 20, 1978. His discharge was thus an incident of discrimination by the same employer which was reasonably related to the allegations of the training charge and was a new act occurring during the pendency of the training charge before the EEOC. Brown should therefore be allowed to amend his complaint to allege discrimination in training as well as discrimination in termination so that under Oubichon and Ramirez his complaint will be timely filed.

The district court based its dismissal of Brown's complaint upon Cleveland v. Douglas Aircraft Co., 509 F.2d 1027 (9th Cir.1975), but Cleveland is not dispositive here. In that case, the plaintiff, Cleveland, filed a charge with the EEOC alleging that he was terminated by his employer for racial motives. The EEOC issued a right-to-sue letter before it had completed handling the charge at the administrative level. Cleveland then filed a Title VII action within the statutory time limit. The EEOC then advised Cleveland to move to dismiss his complaint without prejudice and allow the EEOC to first exhaust the administrative process. Cleveland did this, but the EEOC failed to effect conciliation. The EEOC then issued a second right-to-sue letter. Cleveland again filed suit under Title VII. The court dismissed Cleveland's complaint as not timely. The court held that the issuance of the second right-to-sue letter was without effect because the EEOC had no statutory authority to issue a second letter on the same charge. Thus, the statutory period was deemed to run from the issuance of the first right-to-sue letter.

This case is distinguishable from Cleveland. Cleveland filed only one charge with the EEOC upon which both letters were issued. Brown, however, filed two separate charges with the EEOC upon which he received two different right-to-sue letters. Brown thus filed within ninety days of a valid right-to-sue letter upon a reasonably related after-occurring incident of...