EEOC v. Nicholson File Co.

• Decision Date: 19 January 1976
• Docket Number: Civ. No. H-75-219.
• Citation: 408 F. Supp. 229
• Court: U.S. District Court — District of Connecticut
• Parties: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION v. NICHOLSON FILE COMPANY and Textile Workers Union of America, Local 477.

408 F. Supp. 229

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION v. NICHOLSON FILE COMPANY and Textile Workers Union of America, Local 477.

Civ. No. H-75-219.

United States District Court, D. Connecticut.

January 19, 1976.

David Ingram, Delores Wilson, Johnny J. Butler, Raymond D. Goodman, Equal Employment Opportunity Comm., Philadelphia, Pa., for plaintiff.

Brian Clemow, Brenda A. Eckert, Hartford, Conn., William S. Zeman, West Hartford, Conn., for defendants.

RULING ON MOTION TO DISMISS

BLUMENFELD, District Judge.

The defendant Nicholson File Co. (Nicholson) has filed this motion to dismiss for want of subject matter jurisdiction pursuant to Rule 12(b)(1), Fed.R. Civ.P. Because I deem the issues raised to be in the nature of an affirmative defense rather than jurisdictional, I shall treat the motion as one for summary judgment pursuant to Rules 12(c) and 56(b), Fed.R.Civ.P.¹

I. History

The central issue raised by this motion concerns the application of several of the time limits contained in Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., to the somewhat extended history of this complaint of sex-based discrimination in employment. In order to understand the defendant's position, it is unfortunately necessary to trace in some detail how one employee's complaint served as the seed, which after a five and one-half year gestation period in various governmental agencies, finally burst forth as a full-blown enforcement action by the Equal Employment Opportunity Commission (EEOC).

On December 8, 1969, Lucille Harriott, an employee of the defendant, filed a complaint with the Office of Federal Contract Compliance (OFCC) in Washington, D. C.² The essence of her complaint, and the basis of the present lawsuit, was a charge that Nicholson did not pay its women employees wages equal to those it paid to its male employees performing substantially equal work.

On April 20, 1970, Ms. Harriott quit her job at Nicholson. The affidavit of Nicholson's Manufacturing Manager states that she quit for reasons unrelated to this action or to her allegation. The EEOC has not submitted any contrary material.

On June 7, 1971, seven months after it received the complaint, the OFCC referred it to both the Wage & Hour & Public Contracts Division of the Department of Labor, and to the EEOC. The Washington office of the EEOC in turn referred the complaint to its New York field office, where it was received on June 24, 1971. The New York field office referred the complaint to the Connecticut Commission on Human Rights and Opportunities on July 6, 1971, pursuant to 42 U.S.C. § 2000e-5(c).³ After the required 60 days had passed, the EEOC notified Ms. Harriott that, if she desired, the Commission could assert jurisdiction over her charge. On September 22, 1971, 22 months after she wrote her original letter, and 17 months after she resigned, Ms. Harriott's charge was officially filed with the EEOC.⁴

On March 24, 1972, the 1972 amendments to the Civil Rights Act of 1964 became effective.⁵ On April 1, 1972, notice of the pending charge was given to Nicholson.⁶

On February 15, 1973, Ms. Harriott amended her complaint to include a charge against the defendant union, and the entire administrative process began anew, with another referral to the Connecticut Commission and a return from them on March 2, 1973.

After an investigation, the EEOC issued its Letter of Determination on December 20, 1973. Negotiations aimed at conciliation failed, and this action was filed on June 30, 1975.

In this motion Nicholson raises three claims. First, it claims that Ms. Harriott's charge was not filed with the EEOC within 210 days following the act of discrimination. This was the period allowed by 42 U.S.C. § 2000e-5 at the time of the occurrence.⁷ Second, Nicholson claims that, even if the charge was timely filed, this action must be dismissed because the EEOC failed to give it notice within a reasonable time. Finally, it claims that the EEOC's right to sue expired before this action was commenced.

II. Was the Original Charge Timely Filed?

Nicholson argues that because the acts complained of occurred before Ms. Harriott wrote her letter on December 8, 1969, her failure to file the complaint with the EEOC before September 22, 1971 deprives this court of subject matter jurisdiction.

The first question is whether the time limits set out in 42 U.S.C. § 2000e-5(e)⁸ are jurisdictional, or in the nature of a statute of limitations.⁹ This is an important distinction, since the statute of limitations is merely an affirmative defense, subject to waiver and other equitable limitations, whereas a jurisdictional defect cannot be cured even by consent of the parties.

The defendant contends that these requirements are jurisdictional, relying on Sanchez v. Standard Brands, Inc., 431 F.2d 455 (5th Cir. 1970) and McFadden v. Baltimore Steamship Trade Ass'n, 352 F.Supp. 403 (D.Md.), aff'd, 483 F.2d 452 (4th Cir. 1973). If this is the case the complaint must be dismissed, since the charge was filed well over 210 days after the events occurred.

However, this court does not accept the defendant's characterization of the time limitations. This point has recently been discussed at length by the Court of Appeals for the Fifth Circuit in Reeb v. Economic Opportunity Atlanta, Inc., 516 F.2d 924 (1975). The court first noted that:

"This ninety day requirement applied only to charges filed with the EEOC. In terms, at least, it had nothing to do with the jurisdiction of the United States district courts over a suit later authorized by the EEOC."

516 F.2d, at 926. The court then admitted that several decisions, including some in its own circuit, had used the expressions "jurisdictional" and "statute of limitations" loosely, and often interchangeably. The court continued:

"Conceptual confusion springs from a court's describing the ninety day requirement as `jurisdictional' but proceeding on the basis of an analogy to how statutes of limitations have been construed. Statutes of limitations, designed as they are primarily to prevent stale claims, are traditionally thought to be subject to much more flexible construction than statutes which confer subject matter jurisdiction upon courts."

516 F.2d, at 927.

Finally, after a discussion of several of its own earlier decisions, the court concluded:

"We accept the view that the requirement should be analogized to statutes of limitations. Equitable modifications, such as tolling and estoppel, that are applied to them should also be applied here."

516 F.2d, at 928.

Nicholson has attempted to present only two alternatives. It claims that this court must find either that the charge was filed with the EEOC more than 210 day after the alleged acts of discrimination and therefore this court is without jurisdiction; or that the filing of the charge with the OFCC should be deemed a filing with the EEOC, and that the period that Nicholson was without notice should be measured from the date when the OFCC received the complaint, December 11, 1969.

If the time limitations are viewed as the equivalent of a statute of limitations, however, there is a third alternative. This third position raises the question of whether the filing of the complaint with the OFCC tolled the 210-day period allowed under Title VII. While this appears to be a question of first impression, the weight of authority on similar issues appears to support an affirmative answer.

The Supreme Court has historically taken a flexible position regarding federal statutes of limitations. In Burnett v. New York Central Railroad Co., 380 U.S. 424, 428, 85 S.Ct. 1050, 1054, 13 L.Ed.2d 941 (1965), the Court stated:

"Statutes of limitations are primarily designed to assure fairness to defendants. Such statutes `promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded . . ..'

"This policy of repose, designed to protect defendants, is frequently outweighed, however, where the interests of justice require vindication of the plaintiff's rights."

See also American Pipe & Construction Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974).¹⁰

This liberal policy toward the statute of limitations has been applied to Title VII cases in the line of decisions which have held that the plaintiff's election to exhaust his contractual grievance procedures served to toll the time limit on his complaint to the EEOC. Malone v. North American Rockwell Corp., 457 F.2d 779 (9th Cir. 1972); Hutchings v. United States Industries, Inc., 428 F.2d 303 (5th Cir. 1970); Culpepper v. Reynolds Metals Co., 421 F.2d 888 (5th Cir. 1970). Contra, Guy v. Robbins & Myers, Inc., 525 F.2d 124 (6th Cir. 1975).

As the court pointed out in Culpepper, 421 F.2d, at 892:

"Congress, in placing the various time limitations in Title VII, was attempting to eliminate the problem of `second thought complaints,' stale complaints and the hampering effect that they can have on our labor market. However, the time limitation is meant to penalize only those who sleep on their rights and remedies, not one who actively attempts to settle his complaint by following the `rules of the shop.'"

In many ways the facts of this case present an even more persuasive argument for tolling than was present in Culpepper.

Executive Order 11,246,¹¹ provides for equal employment opportunity in all businesses which contract with the federal government. It represents an attempt by the executive branch to enforce the same policies which are reflected in Title VII. In many ways it duplicates the coverage of Title VII. No company is exempt from Title VII because it is covered by the Order and vice versa. It does not represent a separate remedy as much as an alternate route by which an employee can bring the enforcement power of the federal government to bear on an employer's discriminatory practices.

The OFCC, which enforces the...