Bulls v. Holmes, Civ. A. No. 75-0295-R.

• Decision Date: 30 October 1975
• Docket Number: Civ. A. No. 75-0295-R.
• Citation: 403 F. Supp. 475
• Parties: Robert R. BULLS v. M. Sherlock HOLMES et al.
• Court: U.S. District Court — Eastern District of Virginia

403 F. Supp. 475

Robert R. BULLS v. M. Sherlock HOLMES et al.

Civ. A. No. 75-0295-R.

United States District Court, E. D. Virginia, Richmond Division.

October 30, 1975.

H. Woodrow Crook, Jr., John R. Marks, Smithfield, Va., for plaintiff.

R. H. Cooley, Jr., Petersburg, Va., Gerald G. Poindexter, County Atty. for Surry County, Surry, Va., for defendants.

MEMORANDUM

MERHIGE, District Judge.

Plaintiff, a white applicant for the position of "landfill operator" for the Surry County landfill project, brings this action alleging that the defendants racially discriminated against him in hiring a "less qualified" black applicant for the job. Plaintiff seeks compensatory and punitive damages along with costs and attorney's fees. There appears no demand that plaintiff be hired. Defendants Holmes, Jones, Hardy, Ellis and Johns were members of the Surry County Board of Supervisors at the time the alleged discrimination occurred. Defendant Agle was employed by the Surry County Board of Supervisors as County Administrator during this period. This action is brought under 42 U.S.C. §§ 1981, 1983, 2000e et seq. Jurisdiction is allegedly attained pursuant to 28 U.S.C. § 1343(3), 42 U.S.C. § 2000e-5(f). This matter comes before the Court on defendants' motion to dismiss and plaintiff's response thereto. In light of the fact that correspondence between the Equal Employment Opportunity Commission and plaintiff and his attorney was considered by the Court, and these matters lie outside the pleadings, this motion will be treated as a motion for summary judgment. Rule 12(c), Fed.R.Civ.P. Defendants contend that this Court does not have subject matter jurisdiction over the Title VII (42 U.S.C. § 2000e-5) aspect of the case and that the Virginia statute of limitations bars the §§ 1981, 1983 claims.

The facts, as alleged by plaintiff, reveal that on March 20, 1973, the plaintiff submitted an application with the Surry County Board of Supervisors for the position of "landfill operator." On June 20, 1973, plaintiff undertook a test on the equipment to be operated. The County Administrator allegedly informed plaintiff on June 25, 1973 that he was the best qualified for the position and would be hired. Plaintiff was informed by the County Administrator on June 26, 1973, however, that the County Board of Supervisors wanted to hire a black operator as the last three county employees hired were white. Plaintiff complained to the Equal Employment Opportunity Commission of this alleged discrimination in a letter dated June 29, 1973. The Equal Employment Opportunity Commission (EEOC) responded August 16, 1973 by requesting additional information which was apparently given. On September 18, 1973, in response to plaintiff's inquiry, the EEOC informed him that it would investigate the complaint in due course but that a backlog of cases might cause a delay. After approximately six and one-half months of inaction, plaintiff's attorney, Mr. Crook, wrote the EEOC in order to ascertain the status of his client's complaint. On April 29, 1974, the EEOC informed Mr. Crook that the complaint was still pending but an exact date on which the investigation would take place could not be given. This was the last contact, evidenced in this record, between EEOC and the plaintiff.

Plaintiff filed this action on June 26, 1975. It does not appear that either the EEOC or the Attorney General have issued the plaintiff a right to sue letter as required by 42 U.S.C. § 2000e-5(f) (1). Jurisdiction over the claims arising under 42 U.S.C. §§ 1981, 1983 is attained pursuant to 28 U.S.C. § 1343.

Plaintiff's complaint, fairly read, alleges that the defendants' refusal to hire him was racially motivated. The defendants are county officials and therefore no problem of state action exists. Thus, plaintiff clearly states a claim for which relief can be granted, under 42 U.S.C. §§ 1981, 1983. It is also well settled that actions may proceed under 42 U.S.C. §§ 1981, 1983 without concern for the ability to proceed under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., Johnson v. Railway Express Agency, 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975). Cf. Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974). Defendants contend, however, that this action is barred by the applicable statute of limitations. Plaintiff asserts that the statute of limitations for his §§ 1981, 1983 claim was tolled as of June 29, 1973, the date a formal complaint was filed with the EEOC. The Supreme Court recently ruled directly against the plaintiff on this point. The timely filing of an employment discrimination charge with the EEOC pursuant to 42 U.S.C. § 2000e-5 does not toll the running of the limitation period applicable to an action, based on the same facts, brought under 42 U.S.C. §§ 1981, 1983. Johnson v. Railway Express Agency, supra. Plaintiff, then, must satisfy the statute of limitations applicable to an action brought under §§ 1981, 1983.

Since there is no specifically stated or otherwise relevant federal statute of limitations for a cause of action under §§ 1981, 1983, the controlling period is the most appropriate one provided by state law. Johnson v. Railway Express Agency, supra; Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L. Ed.2d 296 (1971); U. A. W. v. Hoosier Cardinal Corp., 383 U.S. 696, 86 S.Ct. 1107, 16 L.Ed.2d 192 (1966). In Virginia, the statute of limitations for § 1983 actions is specified as one (1) year in Code of Virginia § 8-24 (1950). This provision is clearly the one most applicable to § 1981 actions as well. See, Almond v. Kent, 459 F.2d 200 (4th Cir. 1972). The Supreme Court recently applied a Tennessee one year statute of limitations, similar to that adopted by Virginia, to an action arising under § 1981. Johnson v. Railway Express Agency, supra, 421 U.S. 454, 95 S.Ct. 1716 (1975). The Court expressly reserved judgment, however, on whether that statute impermissibly discriminated against the federal cause of action. Johnson, supra, 421 U.S. 454, 462 n. 7, 95 S.Ct. 1716 n. 7. This Court has previously invalidated that portion of § 8-24 Code of Virginia concerning § 1983 actions on precisely that ground. Van Horn v. Lukhard, 392 F.Supp. 384 (E.D.Va.1975). The reasoning behind Lukhard remains persuasive to this Court today. Consequently, as a matter of federal law, the timeliness of §§ 1981, 1983 "constitutional tort" actions shall be governed by Virginia's two year "personal injury" statute for the reasons enunciated by Judge Winter in Almond v. Kent, 459 F. 2d 200 (4th Cir. 1972).

Turning to the case at hand, it appears that plaintiff has filed his action within the statutory period. The alleged discriminatory action occurred June 26, 1973 and this action was filed June 26, 1975. The day of the act from which the statute of limitations begins to run is not included in computing the period. Rule 6(a), Fed.R.Civ.P. Thus, the limitation period did not begin until June 27, 1973. As this action commenced upon filing on June 26, 1975, plaintiff barely managed to keep his cause of action alive. Therefore, the defendants' motion to dismiss the §§ 1981, 1983 actions is denied.

Defendants' motion to dismiss the Title VII aspect of this action involves determining whether the jurisdictional prerequisites of the action have been met. At the outset, it should be remembered that a plaintiff may wish to pursue both a Title VII action and §§ 1981, 1983 actions. Title VII offers assistance in investigation, conciliation, counsel, waiver of court costs and attorney fees, items that are not available on the face of either § 1981 or § 1983. Johnson v. Railway Express Agency, 421 U.S. 454, 461, 95 S.Ct. 1716 (1975). In order to maintain a Title VII action in a federal court, however, plaintiff must satisfy the jurisdictional prerequisites of that action. Specifically, plaintiff must show: (1) he has filed a timely charge of employment discrimination with the EEOC, and (2) received and timely acted upon proper statutory notice of the right to sue. Alexander v. Gardner Denver Co., supra, 415 U.S. 36, 47, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974); Johnson v. Seaboard Air Line Railroad Co., 405 F.2d 645 (4th Cir. 1968); Mickel v. South Carolina State Employment Service, 377 F.2d 239 (4th Cir. 1967). In the present case, there is no dispute as to the timely filing of the complaint with EEOC. The complaint was sent to the EEOC within three days of the alleged discriminatory event. The ability of this Court to hear the Title VII action is questioned because there is no evidence that a right to sue letter was ever issued to the plaintiff. It is not alleged, nor is there any evidence, that the plaintiff deliberately bypassed the administrative machinery of EEOC. Cf. Mickel, supra; Stebbins v. Nation-wide Mutual Insurance Co., 382 F.2d 267 (4th Cir. 1967). On the contrary, plaintiff and his attorney inquired several times as to the status of plaintiff's complaint and the EEOC investigation. The letter from Mr. Crook dated April 1, 1974 specifically asked whether judicial action would be necessary in light of the administrative inaction. The EEOC responded apologetically and informed plaintiff that an investigation would commence sometime in the indefinite future. More than a year elapsed since that letter with still no EEOC action. Far from purposeful evasion of the administrative process, plaintiff's plight represents unrewarded patience. A brief look at EEOC procedures may explain how a person can be placed in a bureaucratic hold pattern.

The statute itself provides "if a charge filed with the Commission pursuant to subsection (b) is dismissed by the Commission, or if within one hundred and eighty days from the filing of such charge . . . the Commission has not filed a civil action under this section or the Attorney General has not filed a civil action in a case involving a government, governmental agency, or political sub...