Bunch v. Bullard

• Citation: 795 F.2d 384
• Decision Date: 21 July 1986
• Docket Number: Nos. 84-4793,85-4423,s. 84-4793
• Parties: 41 Fair Empl.Prac.Cas. 515, 41 Empl. Prac. Dec. P 36,638 Roosevelt BUNCH, et al., Plaintiffs, Tom Harris, Walter Cole, Willie James Williams, et al., Plaintiffs-Appellants Cross-Appellees, v. Nat BULLARD, Individually and as Mayor of the City of Vicksburg, Mississippi, et al., Defendants-Appellees Cross-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 384

795 F.2d 384

41 Fair Empl.Prac.Cas. 515,

41 Empl. Prac. Dec. P 36,638

Roosevelt BUNCH, et al., Plaintiffs Tom Harris, Walter Cole, Willie James Williams, et al Plaintiffs-Appellants Cross-Appellees, v. Nat BULLARD, Individually and as Mayor of the City of Vicksburg, Mississippi, et al Defendants-Appellees Cross-Appellants.

Nos. 84-4793, 85-4423.

United States Court of Appeals Fifth Circuit.

July 21, 1986.

Firnist J. Alexander, Jr., Brown, Alexander & Sanders, Jackson, Miss., for plaintiffs-appellants cross-appellees.

Landman Teller, Jr., Teller, Biedenharn & Rogers, James Chaney, Jr., Vicksburg, Miss., for defendants-appellees cross-appellants.

Appeals from the United States District Court for the Southern District of Mississippi.

Before JOLLY and HILL, Circuit Judges, and HUNTER, ^* District Judge.

ROBERT MADDEN HILL, Circuit Judge:

Fourteen black police officers sued the city of Vicksburg, Mississippi, and its officials for allegedly discriminatory employment practices. Vicksburg used a standardized test to assess qualification for promotion, and this test disproportionately impaired the promotional opportunities of blacks on the police force. Because the district court improperly placed the burden upon the plaintiffs to show the job-relatedness of the test, we reverse and remand. We vacate the award of attorney's fees in light of the plaintiffs' greater success. In all other respects, we affirm.

I. PROCEDURAL HISTORY AND BACKGROUND

In 1976 eight black policemen, including Roosevelt Bunch and John Minor, filed suit against the mayor, chief of police, chairman and members of the civil service commission, and personnel director of the city of Vicksburg, Mississippi. Originally filed as a class action, alleging claims of racial discrimination in employment based on 42 U.S.C. Secs. 1981 and 1983, ¹ class certification was later denied for lack of numerosity. The complaint was amended in 1977, adding two more black policemen as plaintiffs, including Willie James ("Bill") Williams, and naming the Mayor and Aldermen of the City of Vicksburg ("Vicksburg") as another defendant, as well as adding Title VII claims under 42 U.S.C. Sec. 2000e et seq. Four more plaintiffs were added in a 1978 amendment.

After a bench trial, the district court granted relief to Bunch and Minor by directing Vicksburg to promote them to lieutenant and by awarding them back pay starting from two years prior to the date suit was filed. The court dismissed the claims of the other twelve plaintiffs, and dismissed all claims against individual defendants. Vicksburg was enjoined "to maintain non-discriminatory promotion policies pursuant to the valid Civil Service Regulations presently in existence" at the Vicksburg Police Department. The court also directed that the next opening for captain be filled by a qualified black police officer. Finally, the court awarded the plaintiffs their attorney's fees but denied Bunch and Minor prejudgment interest on the back pay awards.

Although certain individual instances of alleged discrimination will be addressed in the discussion of legal issues, the following is a general description of the promotion policies at the police department. Bunch and Minor were the first two black policemen in Vicksburg, both hired in 1963. Until 1974 promotions were determined largely subjectively, although a patrolman could automatically receive a promotion to sergeant by volunteering for motorcycle duty. Sergeants who then served in an administrative capacity could qualify for promotion to lieutenant. These policies created a large number of sergeants and lieutenants in the department, and promotions were temporarily halted in 1974.

In 1976, pursuant to revised civil service rules, Vicksburg began using examinations prepared by a private firm, International Personnel Management Association (IPMA). The district court found that of the twenty-eight policemen who took IPMA exams, fifteen passed, but only three of thirteen black policemen passed. In 1978 Vicksburg stopped giving IPMA tests and the police department and civil service commission developed its own exams. However, several plaintiffs, many acting on advice of counsel, refused to take any of the locally created exams. None of the tests taken by the plaintiffs were introduced into evidence.

The twelve plaintiffs who were denied relief have appealed, and Vicksburg cross-appeals against all plaintiffs. After the district court determined the amount of attorney's fees, these twelve plaintiffs also appealed that ruling. The two appeals are now consolidated.

II. ISSUES ON APPEAL

A. Title VII Threshold Issues

1. Timeliness

Vicksburg argues in several ways that the district court should not have considered the Title VII claims that were added to the complaint in a May 19, 1977, amendment. First, Vicksburg, argues that this amendment came too late because it was added more than ninety days after the dates of the EEOC "right to sue" letters, January 17 and 28, 1977. These letters were the result of EEOC investigations initiated by plaintiff Bill Williams. The statute provides that the EEOC "shall notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought...." 42 U.S.C. Sec. 2000e-5(f) (emphasis added); see Espinoza v. Missouri Pacific Railroad Co., 754 F.2d 1247, 1250 (5th Cir.1985) (ninety-day period generally begins when notice given at address designated by claimant).

However, while the actual amendment came too late, the plaintiffs had moved to amend (to add Bill Williams and the Title VII claims) on April 18, 1977. Although this motion came ninety-one days after January 17, the court recognized that the relevant date was the date of receipt of the right to sue letter, and took judicial notice of the fact that ordinary mail does not travel from Washington to Mississippi in one day. Thus, the ninety-day clock did not start ticking until January 18, at the earliest, and the April 18 motion was timely. The motion to amend alerted the parties and the district court to the coming Title VII claims, and thus "curative steps" were taken within the ninety-day period. Cf. Stewart v. City of Pontotoc, Miss., 461 F.Supp. 767, 775 (N.D.Miss.1978).

2. Statute of Limitations.

Vicksburg also argues that the district court erred in considering some of the plaintiffs' claims under Title VII ² which accrued before the applicable statute of limitations would allow. The limitations provision of Title VII requires that "[a] charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred...." 42 U.S.C. Sec. 2000e-5(e). "This limitations period begins to run from the time that the complainant knows or reasonably should know that the challenged act has occurred." McWilliams v. Escambia County School Board, 658 F.2d 326, 328 (5th Cir.1981). The district court found that Bill Williams had filed an EEOC charge in "early 1975," but could not determine the exact date from the evidence presented. ³

We find Vicksburg's contention to be without merit. Vicksburg can indicate no alleged unlawful employment practice, relied upon by the district court, which occurred prior to mid-1974. Plaintiffs Bunch and Minor were found to be victims of continuing discrimination, which extended well into the relevant period. The district court denied the disparate treatment claims of the other twelve plaintiffs, rulings which we affirm on the merits; we need not reach a limitations threshold question raised by Vicksburg's cross-appeal. See infra part II F. The IPMA exams were first administered in 1976. No reversible error is shown.

3. Single Filer Rule

Vicksburg contends that the January 1977 right to sue letters concerned the EEOC's investigation of Bill Williams' complaints of broad, general discrimination in the police department prior to 1976. Bill Williams was the only plaintiff who filed charges with the EEOC. In general, timely filing of EEOC charges is a prerequisite to a Title VII suit. See Wheeler v. American Home Products, 582 F.2d 891, 897 (5th Cir.1977). According to Vicksburg, the district court cannot inquire into post-1976 discrimination claims such as the IPMA exams. The question is one concerning the "single-filer" rule: whether the claims of the plaintiffs who did not file EEOC complaints are "similar enough" to that of Bill Williams' so that the purpose of the filing requirement (that settlement first be attempted through the EEOC) not be frustrated. See Ezell v. Mobile Housing Board, 709 F.2d 1376, 1381 (11th Cir.1983).

Although the IPMA tests were new, the same parties were charged with discrimination against blacks in failing to promote them. Moreover, once litigation was underway, the possibility of settlement through the EEOC was remote. There is no indication in the record that the EEOC could have acted on such charges quickly enough to have caused expedition in disposition of the lawsuit. Vicksburg does not indicate why, after suit has been filed, fresh appeal should be had to the EEOC every time the defendants use a new method to discriminate against the same persons. See Crawford v. United States Steel Corp., 660 F.2d 663, 666 (5th Cir.1981) (single filer rule applies when "gravamen of complaints" is the same: all plaintiffs were passed over for promotion because of race). Separate serial filings by all plaintiffs would be a "needless procedural barrier." Cf. Gupta v. East Texas State University, 654 F.2d 411, 414 (5th Cir.1981) (plaintiff need not file second EEOC charge to sue for alleged retaliation for his first charge).

4. Mootness

Vicksburg argues that all of the Title VII promotion claims became moot when Bill Williams quit the department. Vicksburg contends that as the only plaintiff to file with the EEOC, when Williams lost his own standing he also deprived all the other plaintiffs of standing. See Backus v. Baptist...