Devericks v. John Morrell & Co., 12963

• Decision Date: 15 October 1980
• Docket Number: No. 12963,12963
• Parties: Mary DEVERICKS, Appellant, and South Dakota Commission of Human Rights, v. JOHN MORRELL & COMPANY, Appellee.
• Court: South Dakota Supreme Court

Page 325

297 N.W.2d 325

Mary DEVERICKS, Appellant, and South Dakota Commission of Human Rights, v. JOHN MORRELL & COMPANY, Appellee.

No. 12963.

Supreme Court of South Dakota.

Argued Sept. 11, 1980.

Decided Oct. 15, 1980.

Jon E. Arneson, Sioux Falls, for appellant.

Thomas J. Welk of Boyce, Murphy, McDowell & Greenfield, Sioux Falls, Ralph A. Morris of Seyfarth, Shaw, Fairweather & Geraldson, Chicago, Ill., for appellee; William H. Nichols of Seyfarth, Shaw, Fairweather & Geraldson, Chicago, Ill., on brief.

DUNN, Justice.

This is an appeal from a judgment by the circuit court which reversed and vacated the order, findings of fact and conclusions of law of the South Dakota Human Rights Commission (hereinafter Commission) and dismissed with prejudice the complaint filed with that Commission by appellant, Mary Devericks (hereinafter Devericks). The Commission had determined it had jurisdiction in the case and that appellee, John Morrell & Company (hereinafter John Morrell) was discriminating against Devericks. We affirm the circuit court.

Devericks was first hired by John Morrell on March 7, 1928. On November 18, 1948, Devericks resigned from her job because she was seven months pregnant. Her foreman listed the reason for her resignation as "(s)he would like to keep house." Devericks did not indicate to John Morrell when or if she would seek further employment. Devericks reapplied and was rehired on June 13, 1949. She was treated as a new employee and assigned the date of June 13, 1949, as her seniority date. Devericks was given menial tasks as were all new employees, receiving no credit whatsoever for her twenty years' prior service.

Until 1957 it had been an informal unwritten policy of John Morrell that pregnant employees were to voluntarily quit by the fifth month of gestation. At no time did anyone at John Morrell ever act to terminate a pregnant employee, the reason being that this policy was voluntarily complied with. An employee who had voluntarily quit due to this informal policy, who was later rehired, received seniority benefits calculated from the date of rehire. Any service prior to the voluntary quitting was forfeited.

In 1957, under a collective bargaining agreement, a new policy was instigated concerning pregnancy leave. Under this policy, a pregnant employee could take a leave and thereafter return to work without forfeiting her past service time. Her seniority date would continue as before the pregnancy. Also in 1957, a pension plan was adopted by John Morrell. This plan calculated the amount to be received under a "credited service" formula. Under this formula, the retiree receives a certain amount for each year of service with John Morrell, but only those years from the most recent date of hiring. Therein lies the controversy. All pregnant employees, due to the informal policy, voluntarily quit. Their termination and subsequent rehiring resulted in a more recent date of hiring, thereby reducing the amount of their respective pensions.

It is urged that these acts, occurring twenty-three years prior to enactment of the South Dakota Human Relations Act of 1972 (SDCL ch. 20-13), constitute a continuing violation of that Act. Devericks claims the past practice of requiring pregnant employees to voluntarily quit results in a present and continuing discriminatory practice in violation of the Act. This violation is alleged to occur due to the "credited service" formula which fails to give credit for employment prior to a voluntary quit due to pregnancy.

The scope of review on appeals under the South Dakota Administrative Procedures Act (SDCL Ch. 1-26) is:

(I)n reviewing the circuit court's judgment under the APA (SDCL Ch. 1-26) this court must make the same review of the administrative tribunal's action as does the circuit court under SDCL 1-26-37. Furthermore, this court must make its decision as to whether the administrative decision can be sustained unaided by a presumption that the circuit court's decision is correct.

Piper v. Neighborhood Youth Corps, 90 S.D. 443, 445, 241 N.W.2d 868, 869 (1976). Mindful of this consideration, we turn to the substantive issues.

The dominating issue in this case is whether John Morrell's pension plan constitutes a present and continuing violation of the South Dakota Human Relations Act of 1972. SDCL 20-13-31 requires that any complaint under that Act be filed within six months. ¹ Unless Devericks shows some discriminatory act or practice in relation to terms or conditions of employment taken within the previous six months, it is improper for the commission to assume jurisdiction.

Does a pension plan, which is entirely neutral in its operation, constitute a present and continuing violation of the South Dakota Human Relations Act of 1972 merely because a past act of discrimination affects the benefits received? We hold that it does not.

United Air Lines, Inc. v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977), requires that we reject the argument that this is a present and continuing violation of the Act. In Evans, Carolyn J. Evans was employed by United as a flight attendant from 1966 to 1968, at which time she married and was forced to resign under a "no marriage" rule. By 1972, Evans had been rehired but was not given credit for her prior service. Evans brought suit alleging sex discrimination under Title VII of the Civil Rights Act of 1964, the federal counterpart of the South Dakota Human Relations Act of 1972. Evans alleged that this past act of discrimination constituted a present and continuing violation of Title VII. ² The United States Supreme Court found this not to be a present and continuing violation stating:

A discriminatory act which is not made the basis for a timely charge is the legal equivalent of a discriminatory act which occurred before the statute was passed. It may constitute relevant background evidence in a proceeding in which the status of a current practice is at issue, but separately considered, it is merely an unfortunate event in history which has no present legal consequences.

431 U.S. at 558, 97 S.Ct. at 1889, 52 L.Ed.2d at 578.

Unsuccessful attempts have been made to limit Evans to seniority claims. Freude v. Bell Tel. Co. of Pa., 438 F.Supp. 1059 (E.D.Pa.1977), was such an attempt. In Freude, a female employee claimed that her pension checks were discriminatorily small. The pension plan in Freude was admittedly fair and sexually neutral. The amount received under the pension was based upon the five highest years' salaries. These salaries had been discriminatory on the basis of sex. The claimant failed to file a timely charge of discrimination based upon...