Brady v. Bristol-Myers, Inc.

• Decision Date: 30 September 1971
• Docket Number: No. 70 C 370(4).,70 C 370(4).
• Citation: Brady v. Bristol-Myers, Inc., 332 F.Supp. 995 (E.D. Mo. 1971)
• Parties: Dorothy BRADY, Plaintiff, v. BRISTOL-MYERS, INC., Defendant.
• Court: U.S. District Court — Eastern District of Missouri

332 F. Supp. 995

Dorothy BRADY, Plaintiff, v. BRISTOL-MYERS, INC., Defendant.

No. 70 C 370(4).

United States District Court, E. D. Missouri, E. D.

September 30, 1971.

Louis Gilden, St. Louis, Mo., for plaintiff.

George S. Hecker, St. Louis, Mo., for defendant.

MEMORANDUM

WANGELIN, District Judge.

This matter is before the Court on defendant's motions to dismiss on the grounds that this Court lacks jurisdiction, and for failure to state a claim upon which relief can be granted, or, in the alternative for summary judgment.

Plaintiff brings this action against her former employer, defendant Bristol-Myers, for alleged discrimination employment practices resulting in her discharge in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a) (1) and (2) (hereinafter referred to as "Act"), and 42 U.S.C. § 1981.

Plaintiff alleges that she was discharged on April 19, 1968, for the assigned reasons of poor production and attitude, while in fact, she was discriminated against on the basis of her race in that the defendant used different standards to evaluate her than were used to evaluate white employees, resulting in her discharge. Plaintiff seeks a finding of discriminatory employment practices, and injunction against defendant's engaging in such employment practices, reinstatement with back pay, and attorney's fees and costs.

The history of this cause is essentially undisputed. In May, 1968, plaintiff filed a charge of discrimination with the Missouri Commission on Human Rights. After the required 60-day period of deferral, the charge was filed with the Equal Employment Opportunity Commission (hereinafter referred to as the "EEOC"). Plaintiff alleges that the EEOC made a finding of reasonable cause to believe that the defendant had violated the Act. Defendant contends that no finding of reasonable cause by the EEOC was ever made. By affidavit, Charles E. Clark, Field Director of the Kansas City Area office of the EEOC, states that the investigator recommended that such a finding be made, but that no such finding was ever made by the EEOC. The EEOC attempted conciliation which failed. On June 22, 1970, the EEOC notified the plaintiff that she could institute a civil action in the federal court within 30 days. On July 22, plaintiff submitted the following items to the office of the clerk of this Court: 1) a letter signed by plaintiff stating, "I wish to file this letter as a complaint, in order to stop the running of the 30-day period afforded me for filing a suit pursuant to Section 706(e) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e-5(e). The enclosed memorandum from the General Counsel of the Equal Employment Opportunity Commission, indicates that this is the proper procedure for me to follow", and a request for appointment of counsel; 2) the memorandum referred to in the letter: 3) the Notice of Right to Sue Within 30 Days which plaintiff received from the EEOC on June 22, 1970; 4) an application for leave to file an action under Title VII of the Civil Rights Act of 1964, without payment of fees, cost or security for the appointment of counsel; 5) an "Affidavit of Attempt to Secure Counsel"; and 6) an affidavit of financial status.

Also filed on date of July 22, 1970, is a memorandum signed by Sandra Neese, regional counsel of the EEOC at Kansas City, stating that she prepared all of the papers for the plaintiff to file; that she does not represent the plaintiff, but that she filed the papers for the plaintiff in order that the plaintiff might have an action filed within 30 days.

Also of date of July 22, 1970, is a clerk's memorandum which states that at the direction of Judge Meredith the application for leave to file action under Title VII of the Civil Rights Act, "etc. with attachments filed and delivered to Judge Harper."

On November 6, 1970, plaintiff, by privately retained counsel, filed a "Complaint Under Equal Employment Opportunity Act". Thereafter an amended complaint was filed. The amended complaint alleges two causes of action, one arising under Title VII of the Civil Rights Act of 1964, and the other arising under 42 U.S.C. § 1981.

The initial issues presented by defendant's motions are: 1) whether this action was brought within the 30-day period of limitations as set out in 42 U.S.C. § 2000e-5(e); and if so, 2) whether a finding of reasonable cause by the EEOC is a jurisdictional prerequisite to this action.

Section 706(e) of the Act, 42 U.S.C. § 2000e-5(e) provides:

"(e) If within thirty days after a charge is filed with the Commission or within thirty days after expiration of any period of reference under subsection (c) of this section (except that in either case such period may be extended to not more than sixty days upon a determination by the Commission that further efforts to secure voluntary compliance are warranted), the Commission has been unable to obtain voluntary compliance with this sub-chapter, the Commission shall so notify the person aggrieved and a civil action may, within thirty days thereafter, be brought against the respondent named in the charge (1) by the person claiming to be aggrieved, or (2) if such charge was filed by a member of the Commission, by any person whom the charge alleges was aggrieved by the alleged unlawful employment practice. Upon application by the complainant and in such circumstances as the court may deem just, the court may appoint an attorney for such complainant and may authorize the commencement of the action without the payment of fees, costs, or security. Upon timely application, the court may, in its discretion, permit the Attorney General to intervene in such civil action if he certifies that the case is of general public importance. Upon request, the court may, in its discretion, stay further proceedings for not more than sixty days pending the termination of State or local proceedings described in subsection (b) of this section or the efforts of the Commission to obtain voluntary compliance."

Rule 3, Federal Rules of Civil Procedure, provides: "A civil action is commenced by filing a complaint with the court." Rule 8(a), F.R.Civ.P. provides:

"A pleading which sets forth a claim for relief * * * shall contain (1) a short and plain statement of the grounds upon which the court's jurisdiction depends, unless the court already has jurisdiction and the claim needs no new grounds of jurisdiction to support it, (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for judgment for the relief to which he deems himself entitled. * * *"

It is clear that the papers filed by plaintiff on July 22, do not comply with the standards set out in Rule 8(a). And, it would seem that a document in conformance with Rule 8(a) is required by Rule 3 in order to commence an action in this court.

However, it is not the plaintiff's position that the papers filed by her on July 22, satisfied the requirements of a complaint within the meaning of the Federal Rules of Civil Procedure. Rather, plaintiff contends that the filing of the Notice-of-Right-to-Sue letter and the request for appointment of counsel, tolled or otherwise satisfied the requirement that suit be commenced within thirty days from receipt of the Notice.

The 30-day period of limitations is mandatory, and not directory. Goodman v. City Products Corporation, 425 F.2d 702 (6th Cir. 1970); see, Choate v. Caterpillar Tractor Co., 402 F.2d 357 (7th Cir. 1968); Mondy v. Crown Zellerbach Corp., 271 F.Supp. 258 (D.C.La. 1967), rev'd on other grounds, Oatis v. Crown Zellerbach Corp., 398 F.2d 496 (5th Cir.); see, generally 4 A.L.R.Fed. § 12(a), p. 833. In the Goodman case, the court stated:

"The limitations period applicable to the filing of a lawsuit of this nature is governed by § 706(e) of the Act 42 U.S.C. § 2000e-5(e), this section providing in relevant part as follows:

`* * * The Commission shall so notify the person aggrieved and a civil action may, within 30 days thereafter, be brought against the respondent named in the charge * * *.'

* * * * * *

"While uncertainties and ambiguities may exist in regard to other time limitations provided in the Civil Rights Act of 1964, there appears no such uncertainty or ambiguity with regard to the 30 day limitation here involved. The statute clearly provides that `* * * a civil action may, within 30 days thereafter, be brought * * *.' The permissive verb `may' refers to the option of the aggrieved party to bring a lawsuit, not to a discretion in the Court to receive the case following the expiration of 30 days. A similar conclusion was reached in the case of Choate v. Caterpillar Tractor Co., 402 F.2d 357 (C.A. 7, 1968).

"As regards judicial extension of the time limitation to further the remedial purpose of the legislation, it is sufficient to cite the following language from the United States Supreme Court case of Kavanagh v. Noble, 332 U.S. 535, 68 S.Ct. 235, 92 L. Ed. 150 (1947), where, in dealing with a limitation provision in the tax law, the Court had this to say:

`Such periods are established to cut off rights, justifiable or not, that might otherwise be asserted and they must be strictly adhered to by the judiciary. Rosenman v. United States, 323 U.S. 658, 661, 65 S.Ct. 536, 89 L.Ed. 535. Remedies for resulting inequities are to be provided by Congress, not the courts.'

"Finally, as regards the appellant's contention that the 30 day limitation should here be extended on general equitable principles, suffice it to say that there is no allegation or showing in the record of circumstances justifying a tolling of the statute on recognized equitable principles. The rights here sought to be asserted are of a statutory nature. Compliance with the statutory requirements is a prerequisite to the institution of a civil action based on the statute. The judgment of the District Court will be affirmed."

It is the opinion of the Court that plaintiff is required to...