Gunn v. Dow Chemical Co., IP 80-699-C.

• Citation: 522 F. Supp. 1172
• Decision Date: 30 September 1981
• Docket Number: No. IP 80-699-C.,IP 80-699-C.
• Parties: Marcella GUNN, Plaintiff, v. The DOW CHEMICAL COMPANY, Defendant.
• Court: U.S. District Court — Southern District of Indiana

522 F. Supp. 1172

Marcella GUNN, Plaintiff, v. The DOW CHEMICAL COMPANY, Defendant.

No. IP 80-699-C.

United States District Court, S. D. Indiana, Indianapolis Division.

September 30, 1981.

COPYRIGHT MATERIAL OMITTED

Z. Mae Jimison, Indianapolis, Ind., Leroy Clark, Warren Bo Duplinsky, E. E. O. C., Washington, D. C., for plaintiff.

Kim F. Ebert, King, Downing & Haramy, Indianapolis Ind., Douglas S. McDowell, McGuiness & Williams, Washington, D. C., Herbert C. Snyder, Jr., Barnes, Hickam, Pantzer & Boyd, Roberta Selman, Indianapolis, Ind., for the Dow Chemical Co.

FINDINGS OF FACT CONCLUSIONS OF LAW AND JUDGMENT

HOLDER, District Judge.

This matter comes before the Court on the defendant's, The Dow Chemical Company, motion to dismiss under Rules 12(b)(1) and (6) of the Federal Rules of Civil Procedure, or for summary judgment under Rule 56 of the Federal Rules of Civil Procedure, and alternative motion to strike under Rule 12(f) of the Federal Rules of Civil Procedure. The plaintiff responded to the defendant's motion on November 21, 1980 with a memorandum in opposition. The defendant filed its reply brief on January 18, 1981 and a brief of supplemental authority on April 8, 1981. The defendant submitted revised proposed findings of fact and conclusions of law on April 16, 1981. The plaintiff responded by filing her statement of genuine issues on April 29, 1981.

Also before the Court are the briefs of the Equal Employment Opportunity Commission, which entered its appearance as amicus curiae on behalf of the plaintiff. The Equal Employment Opportunity Commission filed briefs on December 1, 1980 and May 4, 1981. The Equal Employment Advisory Council's motion to participate as amicus curiae on behalf of the defendant herein was granted on February 27, 1981 and its memorandum of law was considered by the Court. The Court, being duly advised, will now submit its ruling.

The plaintiff's action is brought pursuant to 28 U.S.C. §§ 1331, 1343 and 2201. The plaintiff's amended complaint alleges that the defendant has discriminated against her on the basis of her sex and her race in violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq. and 42 U.S.C. § 1981.

The defendant's November 12, 1980 motion is a motion to dismiss under Rule 12 of the Federal Rules of Civil Procedure. The defendant's motion additionally requests that it be considered a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure as there are no genuine issues of material fact remaining. Both the plaintiff and the defendant have submitted affidavits in support of their respective positions and have complied with the Court's Local Rules by submitting proposed findings of fact and conclusions of law and a statement of genuine issues. Accordingly, the Court will consider the defendant's motion as a motion for summary judgment.

The undisputed facts, as revealed by the pleadings and the affidavits, are as follows. The plaintiff is a citizen of the State of Indiana and the United States of America. The plaintiff is a black female who was employed by the defendant herein from April 8, 1974 through June 1, 1979, when she resigned from her employment with the defendant company.

The defendant is an employer within the scope and meaning of Section 701(b) of Title VII, 42 U.S.C. § 2000e(b).

The plaintiff filed her charge of racial and sexual employment discrimination with the E.E.O.C. on March 24, 1980. This charge was filed with the E.E.O.C. two hundred and ninety six days (296) after the plaintiff's resignation from her employment on June 1, 1979. The charge alleges acts of employment discrimination by the defendant from on or about March 20, 1979 through June 1, 1979. The charge which the plaintiff filed with the E.E.O.C. did not allege any continuing violations of Title VII by the defendant after June 1, 1979. On March 25, 1980, the E.E.O.C. transmitted a `Notice of Filing (Timeliness)' along with a copy of the plaintiff's employment discrimination charge to the Indiana Civil Rights Commission.

The E.E.O.C. dismissed the plaintiff's employment discrimination charge on April 15, 1980 stating as its reason that the E.E.O.C. lacked jurisdiction to process the plaintiff's charge. On this same date the E.E.O.C. issued its `Notice of Right to Sue' letter to the plaintiff. The plaintiff commenced the present action with the filing of her one count complaint on July 14, 1980, which was subsequently amended on November 3, 1980.

The plaintiff's amended complaint alleges that the discriminatory acts and procedures practiced by the defendant company have continued throughout the time of her employment through and including the date of the filing of her original complaint in this Court.

In order to consider the timeliness of the plaintiff's charge of employment discrimination, the Court must determine the last date on which the alleged unlawful employment practice occurred. An examination of the amended complaint and the affidavits and exhibits on file, reveal only conclusory statements as to the continuing nature of the discrimination from June 1, 1979 to July 14, 1980. It is the general rule that "(t)ermination of employment either through discharge or resignation is not a `continuing' violation. It puts at rest the employment discrimination because the individual is no longer an employee." Terry v. Bridgeport Brass Company, 519 F.2d 806, at 808 (7th Cir. 1975).

Accordingly, the last date on which the alleged unlawful employment practices of the defendant in relation to the plaintiff could have occurred is June 1, 1979. This is the date the plaintiff resigned her employment with the defendant company and the date which the plaintiff used when she filed her charge of employment discrimination on March 24, 1980 with the E.E.O.C.

It is well established that a Title VII plaintiff must timely pursue his claim for relief by pursuing his administrative remedies. Moore v. Sunbeam Corporation, 459 F.2d 811, at 821 (7th Cir. 1972). Accordingly, the Court must determine if the plaintiff timely filed her charge of employment discrimination with the E.E.O.C. prior to initiating the action in this Court.

The applicable statute involved is 42 U.S.C. § 2000e-5, and provides, in pertinent part:

(c) In the case of an alleged unlawful employment practice occurring in a State, ... which has a State or local law prohibiting the unlawful employment practice alleged and establishing or authorizing a State or local authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, no charge may be filed under subsection (b) of this section by the person aggrieved before the expiration of sixty days after the proceedings have been commenced under the State or local law, unless such proceedings have been earlier terminated, provided that such sixty-day period shall be extended to one hundred and twenty days during the first year after the effective date of such State or local law. If any requirement for the commencement of such proceedings is imposed by a State or local authority other than a requirement of the filing of a written and signed statement of the facts upon which the proceeding is based, the proceeding shall be deemed to have been commenced for the purposes of this subsection at the time such statement is sent by registered mail to the appropriate State or local authority.

(d) ...

(e) A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred and notice of the charge ... shall be served upon the person against whom such charge is made within ten days thereafter, except that in a case of an unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings with a State or local agency with authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, such charge shall be filed by or on behalf of the person aggrieved within three hundred days after the alleged unlawful employment practice occurred, or within thirty days after receiving notice that the State or local agency has terminated the proceedings under the State or local law, whichever is earlier, and a copy of such charge shall be filed by the Commission with the State or local agency.

The plaintiff filed her charge of employment discrimination with the E.E.O.C. on March 24, 1980. Prior to this date the plaintiff had not filed any charge of employment discrimination with any State or local agency.

The plaintiff's March 24, 1980 charge of employment discrimination was not filed with the E.E.O.C. within one hundred and eighty days (180) after the last date of the alleged unlawful employment practice of June 1, 1979. Instead, the plaintiff's charge of employment discrimination was filed with the E.E.O.C. two hundred and ninety six days (296) after the plaintiff's June 1, 1979 resignation from the defendant company and the last date of the alleged unlawful employment practice.

It is the rule that a charge of employment discrimination shall be filed with the E.E.O.C. within one hundred and eighty days after the alleged unlawful employment practice occurred. Section 706(d) of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-5(e). Plainly, the plaintiff did not file her charge within this one hundred and eighty day (180) time period. However, an exception to this general rule "allows a filing with the EEOC after 180 days if `the person aggrieved has initially instituted proceedings with a State or local agency with authority to grant or seek relief from such practice'". Mohasco Corporation v. Silver, 447 U.S. 807, 100 S.Ct. 2486, at 2491, 65 L.Ed.2d 532 (1980). (Emphasis added)

Therefore, in order for the plaintiff's charge of employment discrimination to be timely filed with the E.E.O.C., ...