Goldman v. Sears, Roebuck & Co.

• Decision Date: 25 October 1979
• Docket Number: No. 79-1154,79-1154
• Citation: 607 F.2d 1014
• Parties: 21 Fair Empl.Prac.Cas. 96, 21 Empl. Prac. Dec. P 30,336 Isadore GOLDMAN, Plaintiff, Appellant, v. SEARS, ROEBUCK & COMPANY, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

Page 1014

607 F.2d 1014

21 Fair Empl.Prac.Cas. 96, 21 Empl. Prac.

Dec. P 30,336

Isadore GOLDMAN, Plaintiff, Appellant, v. SEARS, ROEBUCK & COMPANY, Defendant, Appellee.

No. 79-1154.

United States Court of Appeals First Circuit.

Submitted Sept. 14, 1979.

Decided Oct. 25, 1979.

Frederick T. Golder and Shulman & Golder, Boston, Mass., on brief, for plaintiff, appellant.

Carl K. King, Gary R. Greenberg, Goldstein & Manello, Boston, Mass., Joseph M. Kehoe, Jr., and Robert F. Maxwell, St. Davids, Pa., on brief, for defendant, appellee.

Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.

LEVIN H. CAMPBELL, Circuit Judge.

This appeal is from the district court's dismissal of an employment discrimination action. The court held that the charges of discrimination were not timely filed with the appropriate federal agencies. We find no error.

The complaint in the instant action alleged substantially the following: After working in the large appliance department of Sears, Roebuck's store in Saugus, Massachusetts from 1962-72, appellant was subjected to harassment and other discriminatory treatment following a management change in 1972. On or about July 27, 1973, he was told he was not a "professional salesman" and was transferred to the store's shoe department at a substantial loss of income. This transfer was made even though in 1966 he had injured his lower back, an injury Sears knew would be aggravated by employment in the shoe department, and was in fact so aggravated. Sometime in 1975, appellant was transferred from the shoe department to the store's electrical department, at a further loss of income. Appellant made repeated requests to be transferred back to the large appliance department, "but the defendant Sears has refused." In consequence,

"The plaintiff alleges that in transferring him out of the large appliance department, transferring him to the shoe department, and then transferring him to the electrical department, the defendant discriminated against the plaintiff solely because of his religious beliefs (Jewish) and because of his age . . .."

Appellant invoked Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, Et seq. (religion), ¹ Title 28 U.S.C. §§ 1337 and 1343, and the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 623. ² Appellant specifically asserted in the complaint that he had complied with all conditions precedent under 42 U.S.C. § 2000e-5, in that, Inter alia, he had filed a charge of employment discrimination with the Equal Employment Opportunity Commission (EEOC) within 180 days of the occurrence of the unfair employment practice. The complaint goes on to state that the discrimination charge was filed with EEOC on July 16, 1976. On October 13, 1977 the EEOC allegedly found reasonable cause to believe that appellant's charge was true and invited the parties "to join with it in a collective effort toward a just resolution of the matter." On March 6, 1978 appellant was said to have been notified by the EEOC that it had been unable, through its informal methods, to reach a settlement with appellee, that it would not itself bring suit against appellee, and that appellant was thus entitled to sue appellee under Title VII if the suit was commenced within ninety days of receipt of the notification. Appellant commenced the present action on March 29, 1978.

Appellee moved to dismiss the complaint for failure to state a claim upon which relief can be granted, Fed.R.Civ.P. 12(b)(6), and for lack of subject matter jurisdiction, Fed.R.Civ.P. 12(b)(1), on the grounds that appellant had not filed his charge of religious discrimination with the EEOC within the time required by Title VII, 42 U.S.C. § 2000e-5(e), ³ nor had he filed his charge of age discrimination with the Secretary of Labor within the time required by the ADEA, 29 U.S.C. § 626(d)(1). ⁴

Attached as an exhibit to a memorandum accompanying the motion to dismiss was a copy of the charge appellant had filed with the Secretary of Labor pursuant to 29 U.S.C. § 626(d). ⁵ The copy showed that the charge had been filed with the Secretary on September 3, 1976. Although not included in the complaint, the correctness of this date does not appear to have been disputed. Appellant filed a memorandum of law in opposition to the motion to dismiss.

The district court granted appellee's motion to dismiss the complaint. The court thought it clear, from the face of the complaint and the copy of the charge filed with the Secretary of Labor, that appellant's Title VII and ADEA claims were time-barred for failure to file charges of religious and age discrimination with the responsible agencies within the statutorily required time periods. Both Title VII and the ADEA required appellant to have filed his charge "within 180 days after the alleged unlawful practice occurred." See notes 3 and 4 Supra. According to the complaint the latter of the two demotions (Viz. to the electrical department) occurred "sometime in 1975." Appellant filed his charge of religious discrimination with the EEOC on July 16, 1976 and his charge of age discrimination with the Secretary of Labor on September 3, 1976. Thus in neither case was the charge filed within 180 days of the two unlawful practices specifically alleged.

Appellant argued in opposition to the motion to dismiss that because the complaint alleged he "made repeated requests to be transferred back to the large appliance department, but (appellee) has refused," it stated continuing violations of Title VII and the ADEA. On this theory, the unlawful practices continued indefinitely and the running of the 180 days was not triggered by the final demotion in 1975.

The district court disagreed. The court said,

"(i)n determining whether there has been continuing discrimination, 'the emphasis should not be on mere continuity; the critical question is whether a present Violation exists.' United Air Lines, Inc. v. Evans, 431 U.S. 553, 558 (97 S.Ct. 1885, 52 L.Ed.2d 571) (1977) . . . In this case . . . the two transfers appear from the pleadings to be discrete incidents of alleged discrimination. The mere allegation of repeated requests and denials of retransfers does not transform past discriminatory acts into a pattern of discrimination of a continuing nature. . . . What is required by the Evans case and missing here is the presence of a present violation."

After dismissal of the complaint, appellant unsuccessfully moved for reconsideration, arguing Inter alia, that the 180-day period should have been tolled until April 1976 (which would render his agency filings timely) because it was not until then, when another employee was allegedly terminated due to religious discrimination, that appellant became "fully convince(d)" his transfers were due to discrimination. ⁶ A timely appeal was taken from the orders dismissing the complaint and denying the motion for reconsideration.

On appeal appellant again contends that his complaint sets forth a continuing violation, thus avoiding any necessary inference that he was too late in filing charges with the agencies. He argues also that the district court did not give due weight to the EEOC's own determination that his charge was timely filed. As a final argument, appellant contends that because Massachusetts is a deferral state within the meaning of 29 U.S.C. § 633(b), he had 300, rather than 180, days following the "alleged unlawful practice" within which to file his age discrimination claim with the Secretary of Labor. See 29 U.S.C. § 626(d)(2).

Taking the above arguments in reverse order, we decline to entertain the "deferral state" contention, as it was neither raised nor considered below. Johnston v. Holiday Inns, Inc., 595 F.2d 890, 894 (1st Cir. 1978). ⁷

The next contention that dispositive weight must be given the EEOC's determination of timeliness is properly before us, but we find no error in the district court's resolution. In a letter notifying appellant that it had found reasonable cause to credit his charge of employment discrimination, the EEOC stated that "the timeliness, deferral, and all other jurisdictional requirements have been met." Appellant charges the district court with having "completely ignored" this statement. The court did not, however, ignore the EEOC's position. It stated in its opinion that the Commission's determination was a factor to be weighed, but the courts have generally made an independent review of the timeliness of the agency filing. There is ample precedent for this approach. See, e. g., Macklin v. Spector Freight Systems, Inc., 156 U.S.App.D.C. 69, 76, 478 F.2d 979, 986 (D.C.Cir.1973); Corbin v. Pan American World Airways, Inc., 432 F.Supp. 939, 944 (N.D.Cal.1977); But see Boudreaux v. Baton Rouge Marine Contracting Co., 437 F.2d 1011, 1014 n.6 (5th Cir. 1971) (dicta). Certainly when the allegations in the complaint indicate that a timely claim was not filed, the agency's boilerplate statement to the contrary, issued without supporting reasons, does not effect a valid dispensation of the statutory requirement.

We turn now to appellant's primary contention that because the complaint supposedly states claims of continuing violations of Title VII and the ADEA, the period for filing agency complaints did not commence at the time of plaintiff's last transfer in 1975 but remained indefinitely open. Under this theory, plaintiff's alleged repeated requests to be retransferred to the large appliance division, followed by Sears' alleged refusals to honor these requests, constituted evidence of the ongoing nature of the violations, which arguably continued up to and through the filing of all charges. Courts have held that if a Title VII or ADEA violation is of a continuing nature, the charge of discrimination filed with the appropriate agency may be timely as to all discriminatory acts encompassed by the violation so long as the charge is filed during the life thereof or within the statutory period (E. g., 180 ...