Fowler v. Birmingham News Co.

• Decision Date: 27 December 1979
• Docket Number: No. 78-3196,78-3196
• Citation: 608 F.2d 1055
• Parties: 21 Fair Empl.Prac.Cas. 833, 52 A.L.R.Fed. 449, 21 Empl. Prac. Dec. P 30,538 Eddie E. FOWLER, Plaintiff-Appellant, v. The BIRMINGHAM NEWS COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1055

608 F.2d 1055

21 Fair Empl.Prac.Cas. 833, 52 A.L.R.Fed. 449,

21 Empl. Prac. Dec. P 30,538

Eddie E. FOWLER, Plaintiff-Appellant, v. The BIRMINGHAM NEWS COMPANY, Defendant-Appellee.

No. 78-3196.

United States Court of Appeals, Fifth Circuit.

Dec. 27, 1979.

Robert L. Wiggins, Jr., Birmingham, Ala., for plaintiff-appellant.

Johnston, Barton, Proctor, Swedlaw & Naff, John D. Quenelle, James C. Barton, Hubert A. Grissom, Jr., Birmingham, Ala., for defendant-appellee.

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

Before GODBOLD, RONEY and FRANK M. JOHNSON, Jr., Circuit Judges.

FRANK M. JOHNSON, Jr., Circuit Judge:

Eddie E. Fowler was hired, along with eleven others, as an apprentice pressman by The Birmingham News on April 14, 1969. He charges The News with numerous violations of Title VII. ¹ He claims that his seniority was discriminatorily assigned on the day he was hired because he was placed on the bottom of the departmental priority list. Fowler also claims he was discriminated against when, approximately two weeks after he was hired, The News hired white journeymen pressmen from outside the ranks of the apprentices who were less qualified for the pressman position than he was. He further contends that he received no journeyman shift assignments during his apprenticeship and that as a result he was not provided the same quality of training provided white employees. Finally, Fowler claims he was passed over for several supervisory positions for which he was qualified. As a result of these alleged discriminatory acts, Fowler filed a charge of racial discrimination in employment with the Equal Employment Opportunity Commission (EEOC) on April 5, 1971, and amended that charge on October 19, 1972.

The district court granted summary judgment for The News and dismissed the action. In doing so, the district court found that Fowler failed to file a charge of discrimination with the EEOC within the applicable ninety-day time period following the alleged acts of discrimination and therefore any claims arising from Fowler's initial hiring were barred by time. ² The Court also found that Fowler's lawsuit was barred by the judgment in a prior Title VII case, Cook v. The Birmingham News, CA-73-M-514 (N.D.Ala.1975). See Kemp v. The Birmingham News Co., 608 F.2d 1049 (5th Cir. 1979), for a factual recitation forming the basis for the consent decree entered in Cook. We affirm the ruling of the district court.

A jurisdictional prerequisite to a Title VII action is the timely filing of a complaint with the EEOC. Fowler did not file a charge of discrimination with the EEOC until April 5, 1971, almost two years after he was hired and placed on the defendant's seniority list.

On appeal, Fowler does not contest the dismissal of the claims concerning his placement on the seniority list and the hiring of outside journeymen ahead of Fowler, acts that occurred more than ninety days prior to his charge of discrimination filed with the EEOC in 1971. Accordingly, we give no consideration to these claims. He contends, however, that the instant case involves claims of discrimination that did occur within the ninety-day period and continued throughout the period before the complaint was filed in the district court. During this period, he argues, his illegal placement on the seniority list had a continuing effect on his job assignments and on the quality of his training. He further contends that the initial discrimination resulted in his being denied consideration for positions for which he was qualified, positions that were awarded to white employees and applicants who were less or no better qualified than he was. We conclude that these claims are also barred, both by time and by the Res judicata effect of the consent degree in Cook v. The Birmingham News, supra.

Under Evans v. United Air Lines, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977), the claims that stem from the illegal placement on a seniority list may be barred by time. Evans held that plaintiff could not obtain relief with respect to time-barred discriminatory acts on the ground that the "present effects of past discrimination" continued during the limitations period. Id. at 558. The Court emphasized that mere continuity of impact from prior discrimination does not, without more, justify relief under Title VII; rather "the critical question is whether any present Violation exists." Id. The seniority system involved in that case was facially neutral in its operation; it presented no barrier based on sex at the time of the suit. Therefore, the Court held that United was entitled to treat its past act of discrimination as lawful after Evans failed to file a charge of discrimination within the proper time period.

Fowler argues that Evans does not limit his claim because the promotional system in question represents a continuing violation of Title VII, the effect of which was to deny him the opportunity to work journeyman shifts while still an apprentice and thus he was denied equal pay and training opportunity. Assuming this argument has factual support, it is, when analyzed, nothing more than a contention that his placement on the priority list was discriminatorily assigned on the day he was hired and that the present effect of maintaining that seniority order perpetuates the effects of this past discrimination. He fails to claim, however, that The News engages in current discriminatory employment practices based on race. And he makes no showing that the seniority system used by The News is designed and maintained with an intentionally discriminatory purpose, a prerequisite for alleging a present violation of Title VII. See United States v. East Texas Motor Freight Systems, 564 F.2d 179 (5th Cir. 1977); Southbridge Plastics Division v. Local 759, United Rubberworkers, 565 F.2d 913 (5th Cir. 1978). Cf. James v. Stockham Valves & Fittings Co., 559 F.2d 310 (5th Cir. 1977), Cert. denied,434 U.S. 1034, 98 S.Ct. 767, 54 L.Ed.2d 781 (1978). While Fowler may be correct that the allegedly illegal placement on the seniority list will have a continuing adverse impact on him, as did the seniority system in Evans, Evans made clear that the operation of a seniority system is not unlawful under Title VII even though it perpetuates discrimination that has not been the subject of a timely charge by the discriminatee. ³ See International Brotherhood of Teamsters v. United States, 431 U.S. 324, 348 n.30, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977). Accordingly, the lower court's application of the ninety-day rule to the alleged actions in 1969 and the other claims of discrimination that stem from that action was proper. See Dobbs v. City of Atlanta, Ga., 606 F.2d 557 (5th Cir. 1979).

There is another reason why the district court must be affirmed in this case. These claims heretofore discussed and the claim that Fowler was passed over for positions for which he was qualified are also barred by the Res judicata effect of the consent degree in Cook v. The Birmingham News. The problems of which Fowler complains, discrimination in promotion, in job assignments, and in the quality of training, appear on their face to fall within the class-wide injunctive relief granted to "all individuals who . . . may claim to have been discriminated against because of their race in regard to hire, tenure, or promotion or transfers . . . ." Cook consent decree. This covered a wide range of discriminatory practices such as assigning blacks to less desirable jobs than those given whites, providing unequal training opportunities, and discriminating in supervisory assignments. See Kemp v. The Birmingham News, supra. Thus, Fowler was eligible for the affirmative relief accorded members of the class involved in the consent decree entered in Cook. That decree was a full and final adjudication of all claims that were or might...