Fox v. Eaton Corp.

Decision Date21 February 1980
Docket NumberNo. 77-3374,77-3374
Citation615 F.2d 716
Parties22 Fair Empl.Prac.Cas. 98, 54 A.L.R.Fed. 326, 22 Empl. Prac. Dec. P 30,675 Olga J. FOX, Plaintiff-Appellant, v. The EATON CORPORATION, Defendant-Appellee.
CourtU.S. Court of Appeals — Sixth Circuit

James J. McGrath, Celebrezze, McGrath, Mauk & Westley, Cleveland, Ohio, for plaintiff-appellant.

Alan N. Hirth, John P. Palumbo, Eaton Corp., Gilda F. Spears, Cleveland, Ohio, for defendant-appellee.

Before CELEBREZZE, BAILEY BROWN and JONES, Circuit Judges.

BAILEY BROWN, Circuit Judge.

The appellant, Olga J. Fox (Fox), appeals from a judgment of the district court dismissing her Title VII action based on alleged sex discrimination. The district court held, on a motion to dismiss, that, since Fox had failed to commence this action in federal court within ninety days of receiving her right-to-sue letter, her action must be dismissed as untimely filed.


Fox was employed by the appellee, the Eaton Corporation (Eaton), from 1942 until 1972. On August 30, 1972, Fox was released from employment when the plant at which she was working was closed. In October, 1973, she brought an action in an Ohio state court claiming Eaton had breached the collective bargaining agreement. Fox alleged that Eaton had improperly computed her credited service in determining her eligibility for early retirement benefits.

Sometime in 1974, shortly before trial, Fox sought to amend her complaint to include a claim based on Title VII of the Civil Rights Act of 1964. The amendment alleged a claim of sex discrimination by alleging, inter alia, that she had not been given service credit for the time taken as maternity leave. The amendment was allowed when Fox received a right-to-sue letter in December, 1974. 1 Prior to trial the parties agreed to stipulate that Fox had a right to bring a Title VII action in the state court. Following a trial on the merits, the state court entered a judgment in favor of Eaton. That decision was affirmed by one of the Courts of Appeal of Ohio. On appeal to the Supreme Court of Ohio, that court sua sponte held that state courts lack jurisdiction over Title VII actions. Accordingly, the Supreme Court of Ohio reversed the decision of the lower court and dismissed Fox's action for lack of jurisdiction. The Ohio Supreme Court decision was rendered on December 15, 1976. Fox v. Eaton Corp., 48 Ohio St.2d 236, 358 N.E.2d 536 (1976).

On February 18, 1977, Fox filed this Title VII action in federal district court alleging essentially the same facts that had been the basis of her previous state court action. 2 Eaton filed a motion to dismiss claiming that Fox had not commenced the action within ninety days of receiving her right-to-sue letter as required by 42 U.S.C. § 2000e-5(f)(1). The district court, in granting Eaton's motion, concluded that the time periods established under Title VII were jurisdictional in nature and therefore could not be tolled. The district court implied that even if the time periods were subject to tolling, such tolling would not be proper under the circumstances of this case.


Since the district court's decision, this court has held that the Title VII time periods "are jurisdictional in the sense that that phrase is used in relation to statutes of limitations and equitable principles should apply in circumstances which warrant their application." Leake v. University of Cincinnati, 605 F.2d 255 (6th Cir. 1979). 3 See also Hart v. J. T. Baker Chemical Corp., 589 F.2d 829 (3rd Cir. 1979); Laffey v. Northwest Airlines, Inc., 185 U.S.App.D.C. 322, 368, 567 F.2d 429, 475 (D.C.Cir. 1976); Reeb v. Economic Opportunity Atlanta, Inc., 516 F.2d 924 (5th Cir. 1975). 4 The issue presented in this appeal is whether the facts of this case justify the application of equitable principles of tolling.

In Leake v. University of Cincinnati, supra, this court held that affirmative representations by the employer which cause the employee to delay in filing discrimination charges with the EEOC are sufficient to toll the applicable Title VII time period. Other courts which have considered whether the Title VII time period for filing an action may be tolled have indicated that deception may toll this period. See Cottrell v. Newspaper Agency Corporation, 590 F.2d 836 (10th Cir. 1979); Trader v. Fiat Distributors, Inc., 476 F.Supp. 1194 (D.Del.1979). See also Geromette v. General Motors Corporation, 609 F.2d 1200 (6th Cir. 1979), which deals with a late filing of a charge with the EEOC. Conduct by the employer which reasonably leads the employee to delay in pursuing his claim certainly presents the clearest and the most justifiable example of a situation in which Title VII time periods should be tolled. See Smith v. American President Lines, Ltd., 571 F.2d 102, note 12 at 109 (2d Cir. 1978). But courts have not hesitated to at least consider and in some circumstances to apply equitable tolling principles in contexts in which the employer's conduct has not caused the employee to delay in pursuing his claim. See Chappell v. Emco Machine Works Company, 601 F.2d 1295 (5th Cir. 1979) (Title VII time periods not tolled when employee relied on statements of employee of state agency that complaint with EEOC had been filed for her, but see dissent at 1304); Hart v. J. T. Baker Chemical Corp., supra (time periods not tolled when employee knew basic facts supporting discrimination charge at the time of her termination); Smith v. American President Lines, Ltd., supra, (tolling of time periods not appropriate simply because employer failed to post, as required by statute, notice to employees of rights under Title VII); Page v. U. S. Industries, Inc., 556 F.2d 346 (5th Cir. 1977), cert. denied, 434 U.S. 1045, 98 S.Ct. 890, 54 L.Ed.2d 796 (1978) (Title VII time period for filing a civil complaint tolled on the basis of a misleading letter written by the EEOC); Reeb v. Economic Opportunity Atlanta, Inc., supra (Title VII time period for filing a discrimination charge tolled until facts supporting discrimination were apparent or should have been apparent to employee). Without categorizing or defining the various circumstances which might warrant the tolling of the Title VII time periods, we conclude that such tolling is appropriate, even in the absence of any misleading conduct by the employer, when the employee files a timely Title VII action in a court and there exists a reasonable legal theory for invoking the jurisdiction of that court. 5

The Supreme Court has in two contexts held statutes of limitations to be tolled during the pendency of an event or condition which satisfied the underlying purposes of the particular statute of limitations. See Johnson v. Railway Express Agency, 421 U.S. 454, 475, 95 S.Ct. 1716, 1727, 44 L.Ed.2d 295 (1975) (Marshall, J., dissenting). Thus, the Court has held that when a plaintiff files an FELA action in a state court with proper jurisdiction and that action is subsequently dismissed for improper venue, the FELA statute of limitations is tolled during the pendency of the state action. Burnett v. New York Central Railroad Company, 380 U.S. 424, 85 S.Ct. 1050, 13 L.Ed.2d 941 (1968). In addition, the Court has held that the commencement of a class action tolls the applicable statute of limitations for every member of the alleged class at least until such time as the court decides the class certification issue. American Pipe & Construction Company v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974). See also United Airlines v. McDonald, 432 U.S. 385, 97 S.Ct. 2464, 53 L.Ed.2d 423 (1977). In each of these cases, the underlying purpose of the particular statute of limitations was satisfied by the filing of the original action in that the defendant received timely notice of the statutory claim and the plaintiff displayed diligence in asserting his or her rights. In neither case was the defendant subjected to any unfairness. 6

This case is obviously distinct from either Burnett or American Pipe in that Fox's original state action was dismissed for lack of jurisdiction. We believe that, as a general matter, the filing of an action in a court that clearly lacks jurisdiction will not toll the statute of limitations. But in this case, the lack of jurisdiction in the state court was far from clear. Those courts that have directly confronted this issue have reached conflicting conclusions. 7 See Peterson v. Eastern Airlines, 20 FEP Cases 1322 (W.D.Texas 1979); Bennun v. Board of Governors, 413 F.Supp. 1274 (D.N.J.1976); Peper v. Princeton University Board of Trustees, 77 N.J. 55, 389 A.2d 465 (1978); Vason v. Carrano, 31 Conn.Sup. 338, 330 A.2d 98 (1974) (holding state courts have concurrent jurisdiction). See also Dickinson v. Chrysler Corp., 456 F.Supp. 43 (E.D.Mich.1978); Fox v. Eaton Corp., 48 Ohio St.2d 236, 358 N.E.2d 536 (1976); Lucas v. Tanner Bros. Contracting Corp., 10 FEP Cases 1104 (Arizona 1974) (holding federal courts have exclusive jurisdiction). At the time Fox filed her action in state court, there was no controlling decision, and particularly no decision by the Supreme Court of Ohio, that would indicate that federal courts have exclusive jurisdiction over Title VII actions. Given the absence of any such controlling decision and given the conflicting decisions reached by other courts, we do not believe that Fox should be prejudiced for having adopted the jurisdictional theory which the court ultimately decided not to accept.

The Court of Appeals for the District of Columbia recently reached a similar conclusion in an analogous situation. In Bethel v. Jefferson, 191 U.S.App.D.C. 108, 589 F.2d 631 (D.C.Cir. 1978), the D.C. Circuit considered for the first time whether employees of the District of Columbia were required to follow the procedures of the Civil Service Commission or the procedures of the EEOC. Even though the court determined that the particular plaintiffs in that case were...

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