Greenwood v. Ross

Decision Date22 November 1985
Docket NumberNo. 84-1498,84-1498
Citation778 F.2d 448
Parties40 Fair Empl.Prac.Cas. 435, 38 Empl. Prac. Dec. P 35,770, 28 Ed. Law Rep. 1305 Johnny GREENWOOD, Appellant, v. Dr. Robert ROSS, Happy Mahfouz, Chancellor and Athletic Director, respectively, of the University of Arkansas; Dr. Raymond P. Miller; Dr. Diane Nolan; Bradley D. Jesson; Dr. Jacqueline Douglas; Robert D. Pugh; Hugh B. Chalmers; Jack Williams; Hall McAdams, III; Kaneaster Hodges, Jr.; Gus Blass, II; Board of Trustees of University of Arkansas, Appellees.
CourtU.S. Court of Appeals — Eighth Circuit

P.A. Hollingsworth, Little Rock, Ark., for appellant.

Robert V. Light, Little Rock, Ark., for appellees.

Before BRIGHT and HENLEY, Senior Circuit Judges, and McMILLIAN, Circuit Judge.

McMILLIAN, Circuit Judge.

Johnny Greenwood appeals from a final judgment entered in the District Court for the Eastern District of Arkansas in favor of Dr. Robert Ross, Chancellor of the University of Arkansas at Little Rock (UALR), 1 Happy Mahfouz, Athletic Director, and the Board of Trustees of the University of Arkansas, in their individual and official capacities as trustees, in a civil rights action brought pursuant to 42 U.S.C. Secs. 1983, 2000e et seq. (1982). Appellant alleges discrimination in employment practices by appellees. For reversal appellant argues that the district court erred in (1) dismissing the Title VII claim against Ross and Mahfouz and the Board of Trustees because they were not specifically named in the EEOC charge, (2) dismissing the claims against the Board of Trustees on the ground that the eleventh amendment bars suit against the University of Arkansas in the federal court, (3) refusing to consider the retaliatory discharge claim under Sec. 1983, and (4) dismissing the retaliatory discharge claim under 42 U.S.C. Sec. 2000e (Title VII). For the reasons discussed below, we reverse and remand.

Appellant, a black male, had been employed since 1974 as an assistant men's basketball coach at UALR. When Mahfouz, the head men's basketball coach, resigned in 1979 to become the athletic director, appellant and several other persons applied for the head coach position. In March 1979, UALR selected Ron Kestenbaum, a white male, as the head coach. Appellant was retained as an assistant coach; however, his annual contract was not renewed when it expired on June 30, 1980.

Appellant filed this suit on September 18, 1979, and alleged that he had not been selected or promoted to the head coach position because of his race. The district court permitted appellant to amend his complaint on two occasions. On August 20, 1980, appellant amended his complaint to add a Title VII claim 2 and to name UALR as a defendant. By an order entered September 21, 1981, the district court permitted appellant to add as defendants the ten members of the Board of Trustees of UALR in their individual capacities.

At the conclusion of a three-day bench trial, the district court dismissed the Sec. 1983 and Title VII claims against the Board of Trustees on the ground that the claims were barred by the eleventh amendment of the Constitution. The claims against the individual members of the Board of Trustees were dismissed; no basis for the dismissal was given. In addition, the district court found that appellant had "failed to make a prima facie case as to racial animus ... related to the two challenged employment decisions" and dismissed the Sec. 1983 claims against Ross and Mahfouz. Lastly, the district court dismissed the Title VII claim of retaliatory non-renewal of appellant's contract (retaliatory discharge) because appellant failed to name Ross, Mahfouz and the Board of Trustees in his EEOC charge. This appeal followed.

Appellant first argues that the district court erred in dismissing his Title VII retaliatory discharge claim against Ross and Mahfouz on the ground that Ross and Mahfouz were not named parties in appellant's EEOC charges. Appellant concedes that his EEOC charges did not name Ross and Mahfouz individually but argues that the naming of UALR was sufficient because Ross, as chancellor, and Mahfouz, as athletic director, were supported and directed by and acted on behalf of UALR with complete identity of interest. Further, appellant argues that Ross and Mahfouz had ample notice of the EEOC charge against them, were represented by counsel from the beginning and were aware of the possibility of conciliation at an early date.

Although conceding that the filing of an EEOC charge is not a jurisdictional prerequisite for a Title VII action, Ross and Mahfouz nonetheless argue that the filing requirement is like a statute of limitations and is to be given effect as such unless waived or tolled.

The district court, relying on Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 1132, 71 L.Ed.2d 234 (1983) (Zipes ), dismissed the retaliatory discharge claim because appellees had asserted the affirmative defense of failure to file an EEOC charge against appellees. The Supreme Court in Zipes held that "filing a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling." 455 U.S. at 393, 102 S.Ct. at 1132. The Court reaffirmed that the purpose of the filing requirement is to give notice to the employer and to give the employer an opportunity to voluntarily comply with Title VII. See Liberles v. Cook County, 709 F.2d 1122, 1126 (7th Cir.1983).

The Court did not decide in Zipes whether a failure to name an employer in an EEOC charge barred suit where the employer had actual notice of the EEOC charge. A number of other courts, prior to Zipes, had considered this issue. These courts recognized exceptions to the general rule that parties not named in the EEOC charge are not subject to suit in a subsequent civil action. "[O]mission of a party's name from the EEOC charge does not automatically mandate dismissal of a subsequent action under Title VII." Romero v. Union Pacific R.R., 615 F.2d 1303, 1311 (10th Cir.1980); see Wrighten v. Metropolitan Hospitals, Inc., 726 F.2d 1346, 1352 (9th Cir.1984). The filing of an EEOC charge is unnecessary where an unnamed party has been provided with adequate notice of the charge, under circumstances where the party has been given the opportunity to participate in conciliation proceedings aimed at voluntary compliance. Davis v. Weidner, 596 F.2d 726, 729 (7th Cir.1979); Kaplan v. International Alliance of Theatrical and Stage Employees, 525 F.2d 1354, 1358-59 (9th Cir.1975). "The purpose behind this exception is to prevent frustration of the goals of Title VII by not requiring procedural exactness in stating the charge." Eggleston v. Chicago Journeymen Plumbers, 657 F.2d 890, 905 (7th Cir.1981), cert. denied, 455 U.S. 1017, 102 S.Ct. 1710, 72 L.Ed.2d 134 (1982). A suit is not barred "where there is sufficient identity of interest between the respondent and the defendant to satisfy the intention of Title VII that the defendant have notice of the charge and the EEOC have an opportunity to attempt conciliation." Romero v. Union Pacific R.R., 615 F.2d at 1311.

The Supreme Court in Zipes did not implicitly overrule these cases. The decision in Zipes that the filing requirement may be subject to "waiver, estoppel and equitable tolling," 455 U.S. at 393, is fully consistent with the decision in the earlier cases that the filing requirement as to unnamed persons may be met when there is a sufficient identity of interest between persons named and unnamed in the EEOC charge.

We hold that the district court erred in dismissing the Title VII claim against Ross and Mahfouz. Here, there is an identity of interest between the named defendant UALR and the unnamed defendants Ross and Mahfouz. Ross and Mahfouz, as chancellor and athletic director of UALR, respectively, were supported and directed by and acted on behalf of the University of Arkansas in the University's employment relationship with appellant. Moreover, Ross and Mahfouz had notice of the proceedings against them and were represented by counsel from the beginning. Further, they were aware of the possibility of conciliation at an early date. To dismiss appellant's complaint because Ross and Mahfouz were not named in the EEOC charge would frustrate the purposes of Title VII.

Appellant next argues that the district court erred in dismissing his claims against the Board of Trustees as an entity because the Board was not specifically named in appellant's EEOC charge. Appellant named UALR as the defendant in the EEOC charge.

Appellees argue that the Board of Trustees, as an entity, was never made a party to the suit and therefore the district court's order dismissing the complaint as to the Board of Trustees was surplusage. Appellees argue that the order entered on September 21, 1984, provided: "the plaintiff is granted leave to add as named defendants the members of the Board of Trustees for the University of Arkansas in their individual capacities." (Emphasis added.) Appellees further argue that even if the Board were made a party to the suit, the suit should not have been permitted because the Board of Trustees as an entity was not named in the EEOC charge.

We hold that the district court erred in dismissing the complaint against the Board of Trustees as an entity because it was not named in the EEOC complaint. Appellant's naming of UALR (although a place and not a suable entity) was sufficient to inform the Board of Trustees, the governing body of the University, that an EEOC charge had been filed against the Board of Trustees as an entity. In addition, the Board of Trustees appeared by legal counsel throughout all the administrative proceedings prior to the filing of the suit in federal court. The Board was therefore afforded notice of the charge and an opportunity for...

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