Johnson v. General Elec.

• Decision Date: 06 January 1988
• Docket Number: No. 87-1752,87-1752
• Citation: 840 F.2d 132
• Parties: 46 Fair Empl.Prac.Cas. 81, 45 Empl. Prac. Dec. P 37,829, 56 USLW 2490 Earl JOHNSON, Plaintiff, Appellant, v. GENERAL ELECTRIC, Defendant, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 132

840 F.2d 132

46 Fair Empl.Prac.Cas. 81, 45 Empl. Prac.

Dec. P 37,829,

56 USLW 2490

Earl JOHNSON, Plaintiff, Appellant, v. GENERAL ELECTRIC, Defendant, Appellee.

No. 87-1752.

United States Court of Appeals, First Circuit.

Heard Jan. 6, 1988.

Decided Feb. 22, 1988.

Michael A. Brown with whom Jae Shim and Grayer, Brown & Dilday, Boston, Mass., were on brief, for plaintiff, appellant.

Sandra L. Lynch with whom Kevin J. Fitzgerald, R. Michael Cassidy and Foley, Hoag & Eliot, Boston, Mass., were on brief, for defendant, appellee.

Before COFFIN, BOWNES and BREYER, Circuit Judges.

COFFIN, Circuit Judge.

Appellant Earl Johnson brought suit against his employer, General Electric Company, for discriminating against him on the basis of race. Johnson's complaint alleged three separate violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Secs. 2000e--2000e-17. The district court granted defendant's motion to dismiss all three counts as being untimely. We affirm, though on different grounds with regard to Count II.

In June 1980, appellant filed a union grievance alleging that General Electric twice had denied him promotions to senior design positions because he was black. According to appellant's very sketchy complaint, after January 1981 he "continued to be passed over for promotion to the 'Senior Design' position by white males with less seniority and qualifications that were no greater than his." In July 1981, defendant placed the plaintiff on what plaintiff describes as a "three month trial review ... to determine if he was qualified for the Senior Design position." The facts at this point become very confusing. It is not clear what the result of this trial review process was. Plaintiff does not allege that anything happened at the end of the "three months." Instead, plaintiff alleges that in February of the following year, he "was informed that he had failed to pass a second trial review, disqualifying him for a promotion." In April 1982, he filed a complaint before the Equal Employment Opportunity Commission (EEOC). He alleges that since the filing of that complaint, his work assignments have been fewer and more simplistic, thus further preventing him from demonstrating skills sufficient for Senior Design work.

Title VII requires that an aggrieved individual file a charge with the EEOC "within one hundred and eighty days after the alleged employment practice occurred." 42 U.S.C. Sec. 2000e-5(e). That period is extended to 300 days in "deferral states," such as Massachusetts, if the "person aggrieved has initially instituted proceedings with a State or local agency with authority to grant or seek relief from such practice...." In such a deferral state, however, the complainant must file his charges with the EEOC within 240 days of the alleged violation, in order to allow 60 days for deferral to the state agency. See Mohasco Corp. v. Silver, 447 U.S. 807, 817, 100 S.Ct. 2486, 2492, 65 L.Ed.2d 532 (1980); Cajigas v. Banco de Ponce, 741 F.2d 464, 467 & n. 8 (1st Cir.1984). Johnson nowhere alleges that he filed a complaint with the state agency, or that it was forwarded to the agency by the EEOC, see Mohasco, 447 U.S. at 816, 100 S.Ct. at 2492, so it is unclear whether he should be held to a 240- or 180-day statute of limitations. That issue is immaterial, however, because appellant claims that the discriminatory events occurred less than 180 days before his EEOC filing, and appellee insists that the alleged violations occurred more than 240 days before such filing. Neither party claims that the events occurred between 180 and 240 days prior to the EEOC filing.

Count I of appellant's complaint sets forth allegations of discrimination in 1980 when two white males were promoted to Senior Design positions ahead of him. Appellant's EEOC complaint admittedly was not filed until at least 22 months after he was passed over for these positions. Therefore this claim is barred as untimely. Johnson's union grievance procedure does not toll the statute of limitations. See Delaware State College v. Ricks, 449 U.S. 250, 261, 101 S.Ct. 498, 505, 66 L.Ed.2d 431 (1980).

The district court also dismissed Count II as untimely. That count reads as follows:

21. On or about June 3, 1980, the Plaintiff filed a grievance for failure to promote him. Thereafter and continuing to the present the Defendant has refused to promote the Plaintiff.

22. In July, 1981, the Defendant in response to Plaintiff's grievance established a review process that was designed to prevent the Plaintiff from qualifying as a "Senior Designer".

23. Despite the fact that the Plaintiff had already exhibited sufficient skills, and in fact performed work normally assigned to "Senior Designers" in the past, he was assigned to perform in an area that he was not familiar with. It was designed to cause his failure.

24. On or about February 24, 1982, Plaintiff was informed that he had failed the second trial review and would not be promoted.

25. This trial review process was unfair as applied to the Plaintiff as he had already adequately demonstrated the necessary skills for promotion to "Senior Designer". This artificial process was racially motivated and biased against the Plaintiff.

The appellee contends that this claim accrued in July 1981, when the trial review process was established. Appellant, on the other hand, insists that the clock did not start running on this claim until February 1982, when the appellant was informed that he would not be promoted.

The district court correctly dismissed Count II, but we disagree with its reasoning for that dismissal. We think the issue important enough to address the grounds relied upon by the district court. We then set forth our separate reasoning for affirming dismissal. See Knight v. Mills, 836 F.2d 659, 661 n. 3 (1st Cir. 1987).

The district court, relying on Delaware State College v. Ricks, 449 U.S. 250, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980), identified the establishment of the review process in the summer of 1981 as "the 'unlawful employment practice' of which [plaintiff] complains," id. at 257, 101 S.Ct. at 503, and therefore started the running of the statute from that point. Because appellant did not file his EEOC complaint until at least 274 days after this date, Count II was dismissed as time-barred.

We believe that this reliance on Ricks was in error. The district court's decision both reads the complaint too narrowly, and establishes a date of accrual at which it would have been unfair, if not impossible, for plaintiff to have instituted a Title VII action.

In Ricks, the Supreme Court held that the proper focus in Title VII cases for statute of limitations purposes is " 'upon the time of the discriminatory acts, not upon the time at which the consequences of the acts became most painful.' " 449 U.S. at 258, 101 S.Ct. at 504 (quoting Abramson v. University of Hawaii, 594 F.2d 202, 209 (9th Cir.1979)) (emphasis in Ricks ). In that case, the Court found that the statute started running when a professor was informed that a denial of tenure had necessitated his dismissal, and not when he in fact had to leave his job.

Subsequent appellate cases have struggled to apply Ricks in various circumstances. The predominant question has concerned whether a claim accrues when an employee is made subject to an employment plan or evaluation (e.g., seniority status or a mandatory retirement age or a subjective evaluation), or when that plan or evaluation is applied to deny the plaintiff particular benefits or positions (e.g., a promotion or the award of a retirement pension). The issue can alternatively be framed as whether the applications of a discriminatory employment plan or evaluation constitute separate, cognizable discriminatory acts under Ricks, or whether they are merely consequences of earlier discriminatory acts. In other words, can the statute of limitations start running before there is certainty that any adverse employment decision disadvantaging the plaintiff will result from the discrimination?

In the recent case of Lorance v. AT & T Technologies, Inc., 827 F.2d 163 (7th Cir.1987), the Seventh Circuit decided that the assignment of seniority status to an employee triggers that employee's statute of limitations on challenging the seniority system, even if the system is only later used to deny that employee a promotion. "[T]he relevant discriminatory act that triggers the period of limitations occurs at the time an employee becomes subject to a facially-neutral but discriminatory seniority system that the employee knows, or reasonably should know, is discriminatory." Id. at 167 (emphasis supplied). Accord Fowler v. Birmingham News Co., 608 F.2d 1055, 1057 (5th Cir.1979) (pre-Ricks ). This reasoning would require employees to initiate Title VII actions as soon as they are made subject to a discriminatory seniority system. This often would occur as soon as they are hired or transferred into a new job catagory.

Most circuit courts have, however, rejected this analysis. They have reasoned, instead, that the application of a discriminatory system to a particular substantive decision (e.g., to promote, demote, fire, or award benefits) constitutes an independent discriminatory act which can trigger the commencement of the statute of limitations. For instance, in EEOC v. Westinghouse Elec. Corp., 725 F.2d 211 (3d Cir.1984) (as amended), the Third Circuit ruled that after the formal promulgation of a discriminatory pension policy, a cause of action still "could not accrue until the discrimination manifested itself by virtue of the policy actually being applied to individual employees at the time of the plant closing through individual ... claim rejections." Id. at 219 (emphasis supplied). Because application of the policy was "contingent upon certain events, such as the closing of a plant," id. at 220 n. 5, the cause of action did not accrue until those events occurred. Ricks was...