Andrews v. Orr

• Decision Date: 14 June 1985
• Docket Number: No. C-3-84-445.,C-3-84-445.
• Citation: 614 F. Supp. 689
• Parties: Eunice E. ANDREWS, et al., Plaintiffs, v. Verne ORR, Defendant.
• Court: U.S. District Court — Southern District of Ohio

614 F. Supp. 689

Eunice E. ANDREWS, et al., Plaintiffs, v. Verne ORR, Defendant.

No. C-3-84-445.

United States District Court, S.D. Ohio, W.D.

June 14, 1985.

Irvin J. Zipperstein, Dayton, Ohio, Joseph F. Henderson, Mt. Ranier, Md., for plaintiffs.

Gerald F. Kaminski, Asst. U.S. Atty., Dayton, Ohio, Elizabeth A. Pugh, U.S. Dept. of Justice, Lt. Col. Perry Anderson, HQS. USAF-JACL, Washington, D.C., for defendant.

DECISION AND ENTRY SUSTAINING IN PART DEFENDANT'S MOTION TO DISMISS; FURTHER PROCEDURES SET; CONFERENCE CALL SET

RICE, District Judge.

This is an employment discrimination action, which Plaintiffs bring as a class action, seeking redress for what they assert were acts of discrimination committed by their employer, the Defendant. The Plaintiffs are black, civilian employees of the Air Force Logistics Command ("AFLC") stationed at Wright-Patterson Air Force Base ("WPAFB"). The Plaintiffs allege that they were discriminated against on the basis of their race by the denial of promotions. Plaintiffs base this allegation on the use of the Professional and Administrative Career Examination ("PACE") by the AFLC to select employees for promotion. Plaintiffs contend that PACE had a disparate impact upon blacks.

This is the third class action, of which this Court is aware, challenging the disparate impact of PACE. The first of these was Luevano v. Campbell, 93 F.R.D. 68 (D.D.C.1981). Subsequently, a class action was commenced in this Court on behalf of all black AFLC employees who sought promotion to professional, administrative or technical jobs prior to January 19, 1982, for which the PACE exam was administered, and who were denied promotional opportunities as a result of Defendant's use of PACE. Brown v. Orr, 99 F.R.D. 524 (S.D. Ohio 1983). On March 15, 1983, this Court issued its Decision denying class certification in Brown. The Plaintiffs herein took no action at that time. On April 18, 1983, the plaintiff in Brown filed a second motion to certify a class therein.¹ Before this Court ruled on the then pending, second motion to certify, the Plaintiff in Brown settled her individual claim on July 12, 1983, and the cause was dismissed with prejudice. Once again, the Plaintiffs herein took no action with regard to the Brown case. Rather, between July 26 and July 28, 1983, the Plaintiffs herein initiated the administrative process by contacting their EEO counselor.

This cause is now before the Court on Defendant's Motion to Dismiss. (Doc. # 6). In his motion, the Defendant asserts that this Court lacks subject matter jurisdiction over the Plaintiffs' individual claims because the Plaintiffs failed to exhaust their administrative remedies within thirty days as required by 29 C.F.R. § 1613.214(a)(1)(i). Additionally, Defendant contends that Plaintiffs' class action claims are barred by res judicata as a result of this Court's decision in Brown overruling the motion to certify. The Court will discuss the many issues raised by Defendant's motion to dismiss Plaintiffs' individual claims, and then the Court will focus on the issues raised by Defendant's motion to dismiss the Plaintiffs' request for classwide relief.

(1) Individual Claims.

At least for purposes of ruling on the present motion, Defendant implicitly concedes that any timeliness requirement imposed upon Plaintiffs by the regulations was tolled during the pendency of the Luevano class action and the Brown class action until March 18, 1983, when this Court overruled the motion to certify in that case. Thereafter, Defendant argues, the timeliness requirement in 29 C.F.R. § 1613.214(a)(1)(i) became applicable and that Plaintiffs were required to file a complaint with their EEO counselor within thirty days.² This, the argument continues, the Plaintiffs did not do. Additionally, Defendant contends that the thirty day requirement contained in § 1613.214(a)(1)(i) is jurisdictional and not subject to equitable tolling.

Plaintiffs argue that they seek classwide relief, and, as a consequence, the regulations regarding claims for classwide relief are applicable. See 29 C.F.R. § 1613.601 et seq. Particularly, Plaintiffs would have the Court apply the ninety day time limit contained in § 1613.602(a). Alternatively, Plaintiffs argue that even if the thirty day time limit contained in § 1613.214(a)(1)(i) applies, it did not begin to run until this Court's decision overruling the motion to certify became final on September 15, 1983 when the time to appeal that decision expired. See Rule 4(a)(1), Fed.R.App.P. Additionally, Plaintiffs argue that the thirty day requirement of § 1613.214(a)(1)(i) is not jurisdictional; rather, they contend it is subject to equitable tolling.

Thus, this Court is faced with three distinct questions: (1) which time limit set forth in the regulations is applicable; (2) when did the time begin to run; and (3) are the limitations periods set forth in the regulations jurisdictional or are they subject to equitable tolling.

This Court is of the opinion that the thirty day limitation contained in § 1613.214(a)(1)(i), rather than the ninety day period in § 1613.602(a), is controlling herein. Two independent reasons support this conclusion. First, the regulations implicitly recognize that different members of the same putative class may not repeatedly initiate class actions based on the same conduct. See 29 C.F.R. § 1613.604(b).³ This is what Plaintiffs attempt herein. The Brown class action did not result in classwide relief; therefore, the Plaintiffs seek to bring essentially the same class action.

More fundamentally, the only basis for reaching any of the issues presented by Defendant's motion is to assume, as Defendant does implicitly, that whatever time limitation was applicable, it was tolled during the pendency of the Luevano and Brown class actions. This assumption is grounded in the Supreme Court decisions in American Pipe & Constr. Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974) and Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 103 S.Ct. 2392, 76 L.Ed.2d 628 (1983). In American Pipe and Crown Cork & Seal, the Court held that the filing of a class action tolls the running of statutes of limitations. In Crown, Cork & Seal, the Court said:

Once the statute of limitations has been tolled, it remains tolled for all members of the putative class until class certification is denied. At that point, class members may choose to file their own suits or to intervene as plaintiffs in the pending action.

462 U.S. at 354, 103 S.Ct. at 2397. However, courts which have considered the question have consistently held that the statute of limitations is not tolled for purposes of initiating a new class action, see Smith v. Flagship International, 609 F.Supp. 58 (N.D.Tex.1985); Burns v. Ersek, 591 F.Supp. 837 (D.Minn.1984), in order to avoid perpetual tolling of the statute of limitations by the filing of repeated class actions. This Court agrees with those holdings.

Based on the foregoing, the Court concludes that the applicable time limitation for Plaintiffs' claims is the thirty day period contained in § 1613.214(a)(1)(i), rather than the ninety day period of § 1613.602(a), even though Plaintiffs purport to bring this action as a class action.

Having so concluded, the Court must next consider what event triggers the running of the thirty day period. As set forth above, Defendant argues that the thirty day period begins to run when this Court overruled the motion to certify the class in Brown. Plaintiffs, on the other hand, argue that the thirty day period began to run when the decision in Brown became final, in other words when the appeal time had run.

The Court agrees with Defendant. American Pipe and Crown, Cork & Seal teach that the statute of limitations is tolled only during the pendency of a motion to certify. See 414 U.S. at 561, 94 S.Ct. at 770; 462 U.S. at 354, 103 S.Ct. at 2397. Thus, the thirty day limitation in § 1613.214(a)(1)(i) began to run on March 15, 1983 when this Court overruled the motion to certify in Brown. Moreover, even if we assume that the filing of the second motion to certify in Brown, on April 18, 1983, once again tolled the running of § 1613.214(a)(1)(i), it began to run again when Brown was dismissed with prejudice on July 12, 1983. This dismissal would not entitle Plaintiffs to a new thirty days. Rather, under the teachings of American Pipe and its progeny, Plaintiffs had to initiate the administrative proceedings required by § 1613.214(a)(1)(i) within whatever remained of the thirty days, following the July 12, 1983 dismissal. 414 U.S. at 561, 94 S.Ct. at 770. Plaintiffs did not begin this process until July 26, 1983. Thus, when one examines the two periods that were not subject to tolling, March 15, 1983 to April 18, 1983⁴ and July 12, 1983 to July 26, 1983, it becomes apparent that Plaintiffs waited more than thirty days to initiate the administrative process. However, Plaintiffs seek refuge in the doctrine of equitable tolling, and it is to a discussion of that doctrine which the Court must now turn.

As stated above, Defendant argues that the timeliness requirement of § 1613.214(a)(1)(i) is jurisdictional, that it is not subject to equitable tolling. In reaching this argument, Defendant relies on Sims v. Heckler, 725 F.2d 1143 (7th Cir.1984) in which the court reasoned that since Title VII is a waiver of sovereign immunity, it must be narrowly construed. Consequently, the Sims court concluded that the thirty day period in § 1613.214(a)(1)(i) was jurisdictional. With all due respect, this Court disagrees. Recently, in Watts v. Department of the Air Force, Case No. C-3-84-454 (S.D.Ohio), this Court addressed and rejected a similar contention that the time period in 42 U.S.C. § 2000e-16(c) is jurisdictional, stating:

The uncertainty as to the nature of 42 U.S.C. § 2000e-16(c) arises due to the tension between the decision in Zipes v. Trans World Airlines, Inc., 455 U.S. 385 102 S.Ct.

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