Gomes v. Avco Corp.
| Decision Date | 01 June 1992 |
| Docket Number | D,AFL-CI,No. 1398,1398 |
| Citation | 964 F.2d 1330 |
| Parties | 58 Fair Empl.Prac.Cas. (BNA) 1655, 59 Empl. Prac. Dec. P 41,544 Fernando GOMES, Plaintiff-Appellant, v. AVCO CORPORATION and Local 1010, United Automobile, Aerospace & Agricultural Implement Workers of America,efendants-Appellees. ocket 91-9319. |
| Court | U.S. Court of Appeals — Second Circuit |
Donald L. Sapir, White Plains, N.Y. for plaintiff-appellant.
Eugene A. Boyle (Bryan Steinbach, Banta, Cox & Hennessy, Chicago, Ill., of counsel) for defendant-appellee Avco.
Daniel E. Livingston (Susan Price-Livingston, Gould, Livingston, Adler & Pulda, Hartford, Conn., of counsel) for defendant-appellee Local 1010.
Before: OAKES, Chief Judge, KEARSE and WALKER, Circuit Judges.
Plaintiff Fernando Gomes appeals from a decision of the District Court for the District of Connecticut granting summary judgment to defendants Avco Corporation (Avco) and Local 1010, United Automobiles, Aerospace and Agricultural Implement Workers of America, AFL-CIO (Local 1010). Gomes alleged that both Avco and Local 1010 discriminated against him because of his Portuguese national origin. Gomes also alleged that both Avco and Local 1010 enforced facially neutral job requirements that disproportionately excluded Portuguese workers from skilled jobs at Avco. The district court granted summary judgment to Avco and Local 1010 and dismissed the complaint in all respects. This appeal followed.
Plaintiff Gomes works as a machinist at defendant Avco's factory. Gomes has been an employee of Avco since 1968 and has been represented by Local 1010 under a series of collective bargaining agreements throughout his employment at Avco. These collective bargaining agreements divide machinist jobs into higher paid "skilled" jobs and lower paid "production" jobs. The parties agree that through most of his career at Avco, Gomes has held production level jobs. In 1978 and 1979, Gomes worked as a jig bore operator, which may be either a skilled or production job, and there is some dispute as to whether or not Gomes performed skilled work in this position. Prior to beginning work at Avco in 1968, Gomes worked for approximately seven years as a skilled machinist in the tool and die industry.
In January of 1985, Avco placed advertisements for positions in the skilled trade positions of jig bore operator and boring mill operator in a local newspaper. On February 11, 1985, Gomes applied for the two positions. On April 14, 1985, Avco advised Gomes in writing that they did not consider him qualified for the positions.
Under the collective bargaining agreement between Avco and Local 1010, in order to qualify for promotion to the skilled trades, an employee needed to demonstrate eight years of practical experience or complete an apprenticeship course. Avco credited Gomes with the seven years of work experience prior to 1968, but determined that Gomes' 1978-79 employment as a jig bore operator did not count towards the eight year requirement. Accordingly, Avco concluded that Gomes lacked the necessary experience and denied Gomes the promotion.
Upon receiving this rejection, Gomes sought relief through Local 1010's grievance procedures. On November 4, 1985, Local 1010 informed Gomes that the union agreed with Avco's determination that Gomes lacked the requisite experience for promotion into the skilled trades. Accordingly, Local 1010 advised Gomes that the union would not pursue Gomes' grievance.
In October of 1986, Gomes discovered that a former colleague of his, Philip Marcuccio had been promoted to one of the positions that Gomes had sought in 1985. Gomes alleges that Marcuccio suggested to him that Gomes lost the promotion to Marcuccio because Marcuccio was an Italian-American.
Spurred by this statement, Gomes met with Avco on January 5, 1987 to discuss the denial of promotion. Avco reiterated its position that Gomes lacked the necessary experience. Gomes then requested that Avco accept a "preference card" from Gomes. Under the collective bargaining agreement, the acceptance of such a card would place Gomes on a list for promotion, should a vacancy become available in the next year. Avco, adhering to its position that Gomes did not meet the qualifications for the position, refused to accept the preference card. On January 26, 1987, Gomes again requested that the Union file a grievance on his behalf. Local 1010 again refused to do so.
On April 2, 1987, Gomes filed two complaints, pro se, with the Connecticut Commission on Human Rights and Opportunities (CCHRO) alleging that Avco and Local 1010 had discriminated against him on the basis of his Portuguese origin in denying him the 1985 promotion and in refusing to protest that denial. Gomes simultaneously filed the same complaints with the Equal Employment Opportunity Commission (EEOC). After investigation, the CCHRO dismissed both complaints for lack of evidence. The EEOC reviewed the CCHRO investigation and reached a similar conclusion.
On March 29, 1989, Gomes filed suit, pro se, in federal court alleging that Avco and Local 1010 had violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (Title VII). The complaint focused on the April 4, 1985 denial of promotion and Local 1010's failure to grieve that denial. In April of 1989, Gomes made two technical amendments to this complaint.
Defendants filed answers to the complaint, discovery commenced, and in August of 1989, the district court granted Gomes' motion for the appointment of counsel. The district court then extended the discovery period to allow Gomes time to obtain counsel. On November 30, 1989, Gomes retained counsel.
On June 5, 1990, the district court granted Gomes permission to file a third amended complaint. Gomes added a 42 U.S.C. § 1981 claim against Local 1010 and a disparate impact claim against both parties. Gomes also attempted to add a § 1981 claim against Avco, but the district court concluded that such a claim would be time barred, and denied Gomes leave to so amend the complaint.
On September 10, 1990, Gomes filed a motion to amend the third amended complaint to add allegations relating to Avco's refusal to accept Gomes' preference cards in 1987 and Local 1010's refusal to file a grievance objecting to that refusal. The district court denied leave to amend on the ground that further delays in the proceedings would prejudice Avco and Local 1010.
On October 30, 1991, on Avco and Local 1010's motion, the district court granted summary judgment to the defendants. The court concluded that Gomes' disparate treatment and § 1981 claims were time barred. The court also ruled that Gomes had not exhausted his administrative remedies on his disparate impact claim. Gomes appeals from both this grant of summary judgment and from the district court's denial of leave to amend Gomes' third amended complaint.
Gomes raises a series of objections on this appeal. First, Gomes asserts that the district court erred in dismissing his disparate treatment claims as time barred since the discrimination in each instance was part of a continuing violation. In the alternative, Gomes suggests that misconduct by Avco and Local 1010 equitably tolled the statute of limitations. Gomes also argues that the EEOC investigation of his charges should have encompassed his disparate impact allegations. Accordingly, Gomes asserts that he exhausted his administrative remedies before filing suit. Finally, Gomes argues that the district court abused its discretion in denying him leave to file a fourth amended complaint. We will address these arguments in turn.
Gomes' third amended complaint alleges that Avco denied him a promotion in 1985 and that Local 1010 refused to pursue a grievance because of Gomes' Portuguese heritage. Gomes contends that these actions violated Title VII, which forbids unions and employers from discriminating on the ground of national origin.
A Title VII plaintiff must file a charge with the EEOC within 180 days of the violation or, where the plaintiff first files with a state or local equal employment agency, within 300 days of the violation. 42 U.S.C. § 2000e-5(e). Gomes filed his complaints in April of 1987, more than 300 days after the 1985 incidents.
The district court granted summary judgment to the defendants on the ground that both claims were time barred. On appeal, Gomes suggests that the district court erred on two grounds. First, he contends that the discriminatory incidents identified above were part of continuing violations by Avco and Local 1010. Second, he asserts that Avco's and Local 1010's concealment of the discrimination equitably tolled the statute of limitations.
We agree with Gomes that the normal statute of limitations rules under Title VII do not apply where "employees are hired or refused employment [or promotion] pursuant to a continuous practice and policy of discrimination." Miller v. International Tel. & Tel. Corp., 755 F.2d 20, 25 (2d Cir.), cert. denied, 474 U.S. 851, 106 S.Ct. 148, 88 L.Ed.2d 122 (1985). Instead, "the commencement of the statute of limitations period may be delayed until the last discriminatory act in furtherance of it." Id.; see also Association Against Discrimination in Employment, Inc. v. City of Bridgeport, 647 F.2d 256, 274 (2d Cir.1981), cert. denied, 455 U.S. 988, 102 S.Ct. 1611, 71 L.Ed.2d 847 (1982). Here, however, Gomes has failed to put forth any evidence of a continuous policy or practice of discrimination.
Gomes asserts that the eight year rule provides a common link between the 1985 and 1987 promotion refusals, and thus creates an inference that Avco and Local 1010 employed a continuous policy of discrimination. The problem with this argument is that it presumes that the eight year rule itself has a discriminatory motive. But, on its face, the rule is proper. While Gomes has put forth evidence that...
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