Calloway v. Partners Nat. Health Plans

• Decision Date: 19 March 1993
• Docket Number: No. 91-7934,91-7934
• Citation: 986 F.2d 446
• Parties: 61 Fair Empl.Prac.Cas. (BNA) 550, 61 Empl. Prac. Dec. P 42,200, 61 USLW 2643 Felicia CALLOWAY, Plaintiff-Appellant, v. PARTNERS NATIONAL HEALTH PLANS; Partners Health Plan of Alabama; Partners Health Plan of Alabama Birmingham HMO; Robert R. Vogel, individually and as Chief Executive Officer of Partners Health Plan of Alabama; Jeffrey H. Winokur, individually and as Marketing Manager of Partners Health Plan of Alabama, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 446

986 F.2d 446

61 Fair Empl.Prac.Cas. (BNA) 550,

61 Empl. Prac. Dec. P 42,200, 61 USLW 2643

Felicia CALLOWAY, Plaintiff-Appellant, v. PARTNERS NATIONAL HEALTH PLANS; Partners Health Plan of Alabama; Partners Health Plan of Alabama Birmingham HMO Robert R. Vogel, individually and as Chief Executive Officer of Partners Health Plan of Alabama; Jeffrey H. Winokur individually and as Marketing Manager of Partners Health Plan of Alabama, Defendants-Appellees.

No. 91-7934.

United States Court of Appeals, Eleventh Circuit.

March 19, 1993.

Ann K. Norton, Gordon, Silberman, Wiggins & Childs, Robert L. Wiggins, Jr., Birmingham, AL, for plaintiff-appellant.

William F. Gardner, Cabaniss, Johnston, Gardner, Dumas & O'Neal, William K. Thomas, Birmingham, AL, for defendants-appellees.

Appeal from the United States District Court for the Northern District of Alabama.

Before BIRCH, Circuit Judge, JOHNSON, Senior Circuit Judge, and THOMAS ^*, Senior District Judge.

JOHNSON, Senior Circuit Judge:

This appeal presents the question of whether a Title VII claim for wage discrimination is a single or continuing violation. The district court found that Felicia Calloway's claim of wage discrimination was a single violation which occurred the day she was hired, and entered final judgment in favor of her employer, Partners National Health Plans et al. ("Partners"). We reverse.

I. STATEMENT OF FACTS

A. Factual background

In June 1987, Jeffrey Winokur, Partners' Marketing Director, offered Calloway the position of Marketing Secretary/Secretary I, at the rate of $14,996 annually. Before accepting the offer, Calloway attempted to negotiate a higher salary, but Winokur told her that he was unable to offer more money. Calloway accepted the offer, replacing Kim Martin, a white female who had been hired nine months earlier at the rate of $16,000 per year.

Over the next two years, Calloway unsuccessfully applied for several positions of increased responsibility. In November 1989, Calloway resigned. To replace her, Winokur hired Kim Brasher, a white female. Although Brasher had neither a college degree nor any prior experience working with health maintenance organizations, Winokur offered Brasher a salary greater than Calloway was making when she left.

From June 1987, when Calloway was hired, until February 1988, Partners employed only two black individuals--Calloway and Ivory Steward. In February 1988, Winokur fired Steward. Steward filed a charge with the Equal Employment Opportunity Commission ("EEOC") on February 19, 1988, alleging that "similarly situated Caucasians and males have been treated more favorably than I, with regard to wages, discharge and in their terms and conditions of employment." In 1989, after receiving her notice of a right to sue, Steward filed suit against Partners in district court.

B. Procedural background

Shortly after resigning from Partners, Calloway filed a timely motion to intervene in Steward's suit, alleging that she relied on Steward's EEOC charge. The district court denied Calloway's motion to intervene, citing the dissimilar nature of Calloway's claims and the advanced stage of Steward's suit. Instead, the district court treated Calloway's motion to intervene as the filing of a separate lawsuit.

After a two-day bench trial before the same judge who denied Calloway's motion to intervene, the district court found that Calloway's claim was "very similar" to Steward's charge, thereby permitting Steward's charge to support Calloway's claim. The court proceeded to find that Calloway had proven that her initial wage rate was discriminatory. Nevertheless, the court held that Calloway's wage discrimination claim was time barred, reasoning that the wage discrimination was the product of a single discrete act which occurred on the day Calloway began her employment with Partners, two months outside of the time-frame supported by the Steward charge.

On appeal, Calloway argues that the district court's finding that Partners' discriminatory wage payments were the product of a discrete act is clearly erroneous. In response, Partners argues that even if the discriminatory wage payments constitute a continuing violation, the district court's judgment denying Calloway relief should be affirmed for two reasons. First, Partners argues that the district court erred in permitting Calloway to rely on Steward's charge. Second, Partners argues that Calloway should be denied relief because of the doctrine of unclean hands.

II. DISCUSSION

A. Continuing violation

As a prerequisite to bringing suit under Title VII, a charge must be filed with the EEOC within 180 days of the date of the act giving rise to the charge. See 42 U.S.C.A. § 2000e-5(e) (1992). Because Calloway brought her claim under Steward's EEOC charge, Calloway's claim is timely only if the alleged wage discrimination occurred after August 18, 1987, 180 days prior to the date Steward filed her EEOC charge. The district court termed Steward's claim as one for discrimination in initial wage rate, and held that her claim was time barred because it was the product of a single discrete act that occurred on the day Calloway was hired, two months outside of the relevant 180-day period.

Whether a discriminatory act constitutes a continuing violation of Title VII or a past violation with a present effect is a finding of fact which we review under the clearly erroneous standard. United States v. Georgia Power Co., 474 F.2d 906, 924 (5th Cir.1973) (in Title VII case, date of occurrence for statute of limitations is factual finding). Fed.R.Civ.P. 52(a). See also Gonzalez v. Firestone Tire & Rubber Co., 610 F.2d 241, 249 (5th Cir.1980) (remand for factual determination of whether violation of Title VII was continuing).

In determining whether a discriminatory employment practice constitutes a continuing violation, this Circuit distinguishes between "the present consequence of a one time violation, which does not extend the limitations period, and the continuation of the violation into the present, which does." Beavers v. American Cast Iron Pipe Co., 975 F.2d 792, 796 (11th Cir.1992) (citations omitted). See Ross v. Buckeye Cellulose Corp., 980 F.2d 648, 658 (11th Cir.1992); Firestone Tire & Rubber, supra, 610 F.2d at 249. Although the district court found that Calloway had established her Title VII claim for wage discrimination, the district court found that the wage discrimination was not continuing, but was the present consequence of a discriminatory act which occurred the day Calloway was hired. This finding was clear error. Partners discriminated against Calloway not only on the day that it offered her less than her white predecessor, but also on every day of her employment. See Bazemore v. Friday, 478 U.S. 385, 395, 106 S.Ct. 3000, 3006, 92 L.Ed.2d 315 (1986) ("Each week's paycheck that delivers less to a black than to a similarly situated white is a wrong actionable under Title VII ...").

Contrary to Partners' assertions, Calloway's wage claim is not a single violation with a continuing effect. Cf. United Air Lines, Inc. v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977) (forced resignation was single discriminatory act with continuing effect). As the Supreme Court emphasized in Evans, "the critical question is whether any present violation exists." Id. at 558, 97 S.Ct. at 1889. When the claim is one for discriminatory wages, the violation exists every single day the employee works. See Bazemore, supra, 478 U.S. at 396 n. 6, 106 S.Ct. at 3006 n. 6.

Although we have not had occasion to apply the theory of continuing violations to wage claims under Title VII, "the Eleventh Circuit has long held that 'sex based, discriminatory wage payments constitute a continuing violation of the Equal Pay Act.' " Mitchell v. Jefferson County Bd. of Educ., 936 F.2d 539, 548 (11th Cir.1991) (quoting Hodgson v. Behrens Drug Co., 475 F.2d 1041, 1050 (5th Cir.1973)). Today we conclude that race based, discriminatory wage payments constitute a continuing violation of Title VII. Accordingly, the district court's finding that Partners' discriminatory wage payments were the product of a single discrete act occurring outside the statute of limitations is clearly erroneous.

B. Single-filing rule

Partners argues that even if its discriminatory wage payments to Calloway constituted a continuing violation of Title VII, the district court's decision denying Calloway relief should be affirmed because Calloway should not have been allowed to proceed on Steward's EEOC charge. ¹

The timely filing of an EEOC charge is a prerequisite to a Title VII suit. Allen v. United States Steel Corp., 665 F.2d 689, 695 (5th Cir. Unit B 1982) (citing cases). However, in certain instances we have permitted a plaintiff who has not filed an EEOC charge to rely on another plaintiff's charge, provided two essential requirements are met: (1) the charge being relied upon must be timely and not otherwise defective; and (2) the individual claims of the filing and non-filing plaintiffs must have arisen out of similar discriminatory treatment in the same time frame. Jackson v. Seaboard Coast Line R.R., 678 F.2d 992, 1011-12 (11th Cir.1982). Partners does not dispute that Calloway satisfied both of these requirements. ² Rather, Partners argues that Calloway may not rely on Steward's charge because she is not part of the same lawsuit as Steward.

Whether a plaintiff may invoke the single-filing rule to rely on an EEOC charge filed by another plaintiff in another lawsuit is a question of first impression in this Circuit. We first invoked the "single-filing rule" in the context of a class action to permit unnamed plaintiffs to rely on the EEOC charge filed by the named plaintiff. Oatis v. Crown Zellerbach Corp., 398 F.2d 496, 498-99 (5th Cir.1968). We then extended the single-filing rule to permit intervenors who had not filed EEOC charges to rely on the charge of one of the original plaintiffs. ...