E.E.O.C. v. Local 350, Plumbers and Pipefitters

• Decision Date: 06 July 1993
• Docket Number: No. 90-16810,90-16810
• Citation: 998 F.2d 641
• Parties: 66 Fair Empl.Prac.Cas. (BNA) 259, 62 Empl. Prac. Dec. P 42,548 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. LOCAL 350, PLUMBERS AND PIPEFITTERS, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 641

998 F.2d 641

66 Fair Empl.Prac.Cas. (BNA) 259,

62 Empl. Prac. Dec. P 42,548

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. LOCAL 350, PLUMBERS AND PIPEFITTERS, Defendant-Appellee.

No. 90-16810.

United States Court of Appeals Ninth Circuit.

Argued and Submitted April 14, 1992.

Decided Dec. 22, 1992.

As Amended on Denial of Rehearing and Rehearing En Banc

April 12, 1993.

As Amended July 6, 1993.

John F. Suhre, E.E.O.C., Washington, DC, for plaintiff-appellant.

William J. Flynn, Neyhart, Anderson, Reilly & Freitas, San Francisco, CA, for defendant-appellee.

Appeal from the United States District Court for the District of Nevada.

Before: FLETCHER, POOLE and BRUNETTI, Circuit Judges.

FLETCHER, Circuit Judge:

The Equal Employment Opportunity Commission ("EEOC") appeals the district court's grant of summary judgment in favor of Local 350, Plumbers and Pipefitters ("Local 350"). The EEOC brought suit to challenge Local 350's policy of refusing to allow retired members to seek work through Local 350's hiring hall while the members continued to receive pension benefits. We reverse.

FACTS

Local 350 represents pipefitters and plumbers in Northern Nevada and parts of California. Together with industry employers, Local 350 operates a hiring hall. The hiring hall dispatcher keeps four "out of work lists", with different qualifications and priorities, from which members are hired. At issue in this case is list number 1, the "out of work list", reserved for persons who have been employed for at least 4,000 hours or more during the five years immediately preceding placement on the list. The dispatcher sends members out to jobs in the order in which they signed up.

Donald Pilot, a member of Local 350, retired in 1983. After retirement, he paid retired members' dues. In 1984, he decided to return to work, and signed onto the out of work list. Local 350 removed his name from the list, stating he was not eligible. In a letter dated April 20, 1984, Local 350 informed Pilot that, "as a 'retiree,' having applied for and been granted a pension, you are not presently eligible for dispatch through the UA Local 350 Hiring Hall." Local 350 informed Pilot that to be eligible to sign up for referral, he would have to cease receiving his pension. Pilot apparently continued to seek to sign up until as late as November, 1987.

In June, 1984, Pilot filed charges with the National Labor Relations Board ("NLRB") to challenge Local 350's policy. The NLRB refused to issue a complaint in the matter. A subsequent NLRB challenge filed by Pilot also did not result in NLRB action.

In December, 1987, Pilot filed a discrimination charge with the Nevada Equal Rights Commission and the EEOC. In June, 1989, the EEOC filed an action under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., on behalf of Pilot and similarly situated union members, seeking equitable relief, backpay, and liquidated damages. In May, 1990, the district court granted summary judgment in favor of Local 350. EEOC v. Local 350, Plumbers and Pipefitters, 741 F.Supp. 199 (D.Nev.1990). In August, 1990, it denied the EEOC's motion for reconsideration.

STANDARD OF REVIEW

A grant of summary judgment is reviewed de novo. T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 629 (9th Cir.1987). "A grant of summary judgment is reviewed de novo to determine whether, viewing the evidence in a light most favorable to the nonmoving party, there are any genuine issues of material fact and whether the district court applied the relevant substantive law." Tzung v. State Farm Fire and Casualty Co., 873 F.2d 1338, 1339-40 (9th Cir.1989).

DISCUSSION

I. Does the statute of limitations bar the EEOC's action?

While the district court granted summary judgment on the merits, Local 350 argues that its decision can be affirmed on the ground that the statute of limitations bars the EEOC's action. A suit alleging a violation of the ADEA must be brought within two years after the cause of action accrues; if a "willful" violation is at issue, the statute of limitations is three years. 29 U.S.C. § 255; 29 U.S.C. § 626 (section 255 applies to ADEA actions). Local 350 contends that Pilot was required to file suit within two, or, arguably at most three, years after Local 350 removed his name from the list in April, 1984.

A. EEOC's suit for equitable relief

29 U.S.C. § 626(b) provides that, to enforce the ADEA, the EEOC may seek injunctive relief, as provided in 29 U.S.C. § 217, or may seek damages on behalf of an injured individual, as provided in 29 U.S.C § 216. In its suit, the EEOC sought both types of relief from Local 350.

With regard to injunctive relief, the EEOC need not rely on a charge by an individual to bring suit. "[T]he EEOC's role in combating age discrimination is not dependent on the filing of a charge; the agency may receive information concerning alleged violations of the ADEA 'from any source,' and it has independent authority to investigate age discrimination." Gilmer v. Interstate/Johnson Lane Corp., --- U.S. ----, ----, 111 S.Ct. 1647, 1653, 114 L.Ed.2d 26 (1991), citing 29 C.F.R. §§ 1626.4, 1626.13 (EEOC has independent investigative authority and can secure relief for affected parties even if charging party makes a request to withdraw the charge). Thus, the EEOC was required to file suit within two (or three) years of the last date the challenged policy was in place. Cf. Williams v. Owens-Illinois, Inc., 665 F.2d 918, 924 (9th Cir.) ("[A] systematic policy of discrimination is actionable even if some or all of the events evidencing its inception occurred prior to the limitations period."), cert. denied, 459 U.S. 971, 103 S.Ct. 302, 74 L.Ed.2d 283 (1982). As the challenged policy remains in effect to this day, the EEOC's claim for injunctive relief is timely.

B. Pilot's claim for monetary relief

The EEOC's suit also asked that Local 350 be ordered to "make whole" Donald Pilot and similarly situated union members through payment of backpay and liquidated damages.

The EEOC also argues that Pilot can obtain monetary relief from the date he was first refused listing because Local 350's policy constitutes a "continuing violation" of the ADEA.

"Under the continuing violation doctrine, 'a systematic policy of discrimination is actionable even if some or all of the events evidencing its inception occurred prior to the limitations period.' " Sosa v. Hiraoka, 920 F.2d 1451, 1455 (9th Cir.1990) (citation omitted). The doctrine is applied because " 'the continuing system of discrimination operates against the employee and violates his or her rights up to a point in time that falls within the applicable limitations period.' " Id. (citation omitted). When the doctrine is applicable, "no part of a continuing violation which persists into the period within which suit is allowed is time-barred." Malhotra v. Cotter & Co., 885 F.2d 1305, 1310 (7th Cir.1989) (continuing violation doctrine in 42 U.S.C. § 1981 claims).

Here, Local 350's allegedly discriminatory policy was in effect when Pilot first encountered it in 1984, and remains in force today. Thus, under the continuing violation doctrine, relief for Pilot is not barred.

Local 350 suggests that two Supreme Court cases, Lorance v. AT & T Technologies, Inc., 490 U.S. 900, 109 S.Ct. 2261, 104 L.Ed.2d 961 (1989), and United Air Lines, Inc. v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977), require that we reject the EEOC's effort to rely on the "continuing violation" doctrine. Both cases, however, are distinguishable.

In Evans, in light of its policy against employing married flight attendants, an airline forced Evans, a flight attendant, to resign in 1968, when she married. The policy subsequently was found to violate Title VII. Evans was refused reinstatement, but was eventually rehired as a new employee. Because she was given no seniority credit for her pre-1968 service, she filed suit under Title VII, alleging that the facially neutral seniority system discriminated against her. The Supreme Court held that she should have filed suit in 1968, when the discrimination against her took place. 431 U.S. at 557, 97 S.Ct. at 1888-89. The Court found she could not rely on the continuing violation doctrine. The airline was not engaged in any current violation of Title VII: "Nothing alleged in the complaint indicates that United's seniority system treats existing female employees differently from existing male employees, or that the failure to credit prior service differentiates in any way between prior service by males and prior service by females." Evans, 431 U.S. at 557-58, 97 S.Ct. at 1888-89. The Court acknowledged that the "seniority system does indeed have a continuing impact on her pay and fringe benefits. But the emphasis should not be placed on mere continuity; the critical question is whether any present violation exists." Id. at 558, 97 S.Ct. at 1889.

In Lorance, the Court considered the issue of "when the limitations period begins to run in a lawsuit arising out of a seniority system not alleged to be discriminatory on its face or as presently applied." Lorance, 490 U.S. at 903, 109 S.Ct. at 2264. In 1982, a group of women employees were demoted as a result of layoffs; they were selected for demotion because of the way in which seniority was calculated. They filed suit in 1983, alleging that a facially neutral seniority system, instituted in 1979, discriminated against them because it was based on seniority in a position that had, until recently, been held almost exclusively by men. The Supreme Court held that the employees' suit was time-barred: the proper time to challenge the seniority system was when the new seniority system was instituted, and their rights were diminished. ¹ The employees' claim was "in essence a claim of intentionally discriminatory alteration of their contractual rights." Id. at 905, 109 S.Ct. at 2265. The Court...