892 F.2d 1442 (9th Cir. 1990), 88-3782, Edwards v. Occidental Chemical Corp.

Docket Nº:88-3782, 88-4144.
Citation:892 F.2d 1442
Party Name:, 15 Fed.R.Serv.3d 665 Karen L. EDWARDS, Plaintiff-Appellee, v. OCCIDENTAL CHEMICAL CORPORATION, Defendant-Appellant.
Case Date:January 09, 1990
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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892 F.2d 1442 (9th Cir. 1990)

, 15 Fed.R.Serv.3d 665

Karen L. EDWARDS, Plaintiff-Appellee,



Nos. 88-3782, 88-4144.

United States Court of Appeals, Ninth Circuit

January 9, 1990

Argued and Submitted Sept. 14, 1989.

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Robert L. Beale, Tacoma, Wash., for defendant-appellant.

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Jerry J. Belur, Cromwell, Mendoza & Belur, P.S., Seattle, Wash., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Washington.

Before WRIGHT, WALLACE and THOMPSON, Circuit Judges.

DAVID R. THOMPSON, Circuit Judge:

After a bench trial, the district court awarded Karen Edwards judgment in her Title VII action against Occidental Chemical Corporation ("OCC"). The court found that Edwards had been denied a promotion because she was a female. The district court awarded her back pay of $46,238.00, front pay in an amount equal to the annual salary she would have earned during the duration of her working life expectancy had she received the promotion, and attorney fees. OCC appeals. It contends that (1) Edwards' Title VII action was time barred, (2) the evidence does not support the judgment that OCC discriminated against Edwards, and (3) the damage award was improper.

We have jurisdiction under 28 U.S.C. § 1291. We affirm in part and remand for further proceedings.


Edwards and OCC stipulated to the following facts in an agreed pretrial order: OCC hired Edwards on June 23, 1979 as a clerk typist in the shipping department. Two years later OCC promoted her to traffic clerk. On September 26, 1983 she became the shipping assistant. During times when her supervisor was hospitalized and following his death, Edwards performed the duties of freight supervisor. She performed these duties from December 1, 1983 until March 1, 1984 and from December 3, 1984 until February 1, 1985. She performed the duties of freight supervisor well and was qualified for this position.

No woman had ever been promoted to freight supervisor. Ever since 1950 every freight supervisor had been selected from within the shipping department, the department in which Edwards worked.

On February 1, 1985 OCC promoted James Phillips, a male employee in the tank car maintenance division, to the supervisor position. This promotion occurred after OCC added five job requirements related to tank car maintenance. The position was renamed "shipping supervisor." The five new requirements account for approximately ten percent of the time required for the overall duties of the shipping supervisor. The remaining ninety percent of the shipping supervisor's time is spent on duties previously performed by the freight supervisor and involves shipping. The district court found that Phillips had no prior shipping or freight experience.

When Edwards was denied the promotion, she filed a complaint with the Tacoma Human Rights Commission, a designated Equal Employment Opportunity Commission ("EEOC") agency. She alleged that her employer, OCC, refused to promote her because she was a female. On July 31, 1986 Edwards filed a complaint in district court asserting a Title VII action. The Commission issued a right to sue letter on August 14, 1986.

The complaint's caption named as defendants "Occidental Petroleum Corporation, a foreign corporation, d/b/a Occidental Chemical Corporation and Occidental Chemical Properties Corporation, d/b/a Hooker Industrial Specialty Chemicals" and various individual defendants. The body of the complaint described the corporate defendant as "Occidental Petroleum Corporation ... a commercial corporation licensed to do business in the State of Washington and doing business in Tacoma, Washington as Occidental Chemical Properties Corporation and Occidental Chemical Corporation." Process was served on "Joe Morgan, President" of OCC on September 4, 1986.

Attorneys for Occidental Petroleum Corporation ("OPC") filed a notice of appearance on September 23, 1986 on behalf of OPC and a related company, reserving their objections to jurisdiction and service of process. OPC filed an answer on March

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20, 1987, asserting that the court lacked personal jurisdiction over OPC and that OPC was not named in the Commission complaint as required under Title VII. OPC filed a summary judgment motion on April 21, 1987. The motion and accompanying affidavits set forth the relationships of the various corporations connected with OPC and OCC. These pleadings showed that OCC was Edwards' employer, not OPC.

Edwards' memorandum in opposition to OPC's motion for summary judgment noted the confusion over the appropriate name of Edwards' employer. This memorandum asserted that OCC had been named in the complaint (as a d/b/a of OPC) and had been put on notice of the suit by service of summons and the complaint on J.H. Morgan, the employee relations manager of OCC. Edwards requested an opportunity to amend her complaint under Fed.R.Civ.P. 15, if the court found OCC had not been properly named as a defendant in the action.

The court dismissed the complaint without prejudice on June 1, 1987, without explanation. Edwards filed a second complaint in which she named OCC as the sole defendant. This second complaint was filed July 2, 1987. OCC filed an answer on August 5, 1987 and moved for summary judgment, because the second complaint had not been filed within ninety days of Edwards' receipt of her right to sue letter. See 42 U.S.C. § 2000e-5(f)(1). The district court denied the motion, tried the lawsuit, and on April 4, 1988 awarded judgment in favor of Edwards. Throughout these proceedings Edwards continued to work at OCC as a shipping assistant. OCC appealed from the judgment. On April 10, 1989, while the appeal was pending, Edwards was given the contested promotion. She has been employed by OCC as the shipping supervisor ever since.


  1. Statute of Limitations

    An action brought under Title VII must be filed within ninety days of receipt of a right to sue letter from the EEOC or appropriate state agency. 42 U.S.C. § 2000e-5(f)(1). This filing period is a statute of limitations. Valenzuela v. Kraft, Inc., 801 F.2d 1170, 1174 (9th Cir.1986), amended, reh'g denied, 815 F.2d 570 (9th Cir.1987). Edwards filed her first complaint, incorrectly naming OPC as the defendant employer, on...

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