Guy v. Robbins & Myers, Inc.

• Decision Date: 09 December 1975
• Docket Number: 74-2145,Nos. 74-2144,AFL-CIO,s. 74-2144
• Parties: 11 Fair Empl.Prac.Cas. 641, 10 Empl. Prac. Dec. P 10,451 Dortha Allen GUY, Plaintiff-Appellant, v. ROBBINS & MYERS, INC., Defendant-Appellee. INTERNATIONAL UNION OF ELECTRICAL, RADIO AND MACHINE WORKERS,LOCAL 790, Plaintiff-Appellant, v. ROBBINS & MYERS, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 124

525 F.2d 124

11 Fair Empl.Prac.Cas. 641,

10 Empl. Prac. Dec. P 10,451

Dortha Allen GUY, Plaintiff-Appellant, v. ROBBINS & MYERS, INC., Defendant-Appellee.

INTERNATIONAL UNION OF ELECTRICAL, RADIO AND MACHINE

WORKERS, AFL-CIO LOCAL 790, Plaintiff-Appellant, v. ROBBINS & MYERS, INC., Defendant-Appellee.

Nos. 74-2144, 74-2145.

United States Court of Appeals, Sixth Circuit.

Argued April 11, 1975.

Decided Oct. 24, 1975.

Rehearing and Rehearing En Banc Denied Dec. 9, 1975.

A. C. Wharton, Jr., Memphis & Shelby County, Legal Services Assn., Memphis, Tenn., for appellant Dortha Allen Guy.

U. S. E. E. O. C. William A. Carey, Joseph T. Eddins, Jr., Beatrice Rosenberg, Charles Hodge, Washington, D. C., amicus curiae.

Ronald H. Janetzke, Kettering, Ohio, for appellant Intern. Union of Elec. Radio and Machine Workers.

Charles A. Lawrence, Jr., McKnight & Hudson, Memphis, Tenn., for defendant-appellee, Robbins & Myers, Inc.

Before WEICK, EDWARDS and PECK, Circuit Judges.

WEICK, Circuit Judge.

Appellant Guy has appealed from an order of the District Court dismissing her complaint for wrongful discharge brought under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. and 42 U.S.C. § 1981. She claimed that her employer discharged her on account of her race (Negro).

The District Court granted the defendant's motion to dismiss her Title VII claim on the ground that plaintiff had not met the jurisdictional prerequisites of § 2000e-5(d) of the Act which were in force at the time. ¹ The Act required her to file a charge with the Equal Employment Opportunity Commission (EEOC) within 90 days from the date of her discharge. She did not file the charge until after the lapse of 108 days.

The District Court dismissed her claim for violation of § 1981 of 42 U.S.C. on the ground that it was barred by the one year Tennessee statute of limitations. Tenn.Code § 28-304.

It was Guy's contention that the 90 day requirement of the Act was tolled during the pendency of a grievance which she had filed with her employer under the provisions of a collective bargaining agreement entered into between her employer and the defendant labor Union.

The sole appellate issue is whether the filing of the grievance tolled the jurisdictional requirements of the Act.

Guy's claim under 42 U.S.C. § 1981 was controlled by our decision in Johnson v. Railway Express Agency, Inc., 489 F.2d 525 (6th Cir. 1973), which was affirmed by the Supreme Court on May 19, 1975, 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975). Guy has not appealed from this ruling and it has become final.

The Union originally was a party defendant but was dismissed by agreement with the plaintiff and has been realigned as a party plaintiff.

The facts pertaining to the Title VII issue were not in dispute. Guy was discharged on October 25, 1971 for failing to report for work following an authorized sick leave. A co-worker filed a grievance for her with the employer on October 27, 1971 which stated: "Protest unfair action of company for discharge. Ask that she be reinstated with compensation for lost time." She did not explicitly claim racial discrimination. Guy processed her grievance to the third step under the collective bargaining agreement. The company rejected the grievance on November 18, 1971. Guy decided not to proceed further to arbitration. Instead she filed a charge with EEOC on February 10, 1972 which was 108 days from the date of her discharge.

The EEOC, although finding no evidence of racial discrimination, granted a right to sue letter which resulted in the filing of the present suit.

The District Judge was of the opinion that this case was controlled by the recent decision of the Supreme Court in Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974).

While the specific holding in Gardner-Denver was that the adverse decision of an arbitrator did not foreclose resort by the grievant to her federal remedy, the reasoning of the court, in our judgment, supports the proposition that the filing of a grievance under a collective bargaining agreement does not toll the limitation period of an applicable federal or state statute.

The court pointed out that "in instituting an action under Title VII the employee was not seeking to review an arbitrator's decision but was asserting a right independent of the arbitration process."

The court referred to the legislative history which indicated Congressional intent that an employee could pursue any remedy which he may have under state or federal law. Thus, the employee could file proceedings under the National Labor Relations Act or with other federal, state or local agencies or pursue contractual remedies. In Johnson v. Railway Express Agency, supra, the court held that the various remedies are "separate, distinct and independent."

It would be utterly inconsistent with the thesis of Gardner-Denver and Railway Express Agency to hold that the pursuit of any of these remedies operates to toll other remedies which the employee has a right to resort to concurrently. See the statements of Senators Humphrey and Dirksen reported in 11 Cong.Rec. 12297 and quoted in Banks v. Local Union, 136 Int'l Bhd. Elec. Eng'rs, 296 F.Supp. 1188 (N.D.Ala.1968).

In Tennessee, Civil Rights remedies are not provided by state or local law.

Subsection 5(d) of the Act contains an exception when the grievant has availed himself of remedies provided by state or local Civil Rights agencies and in such a case extends the time for filing a charge with EEOC from 90 days to 210 days after the unlawful employment practice or within 30 days after receipt of notice of termination of state or local proceedings, whichever is earlier.

Guy would have us add another exception to the Act to toll the limitations' period of 90 days when the grievant resorts to a contractual remedy under a collective bargaining agreement.

We are not persuaded that we should add additional exceptions not authorized by Congress.

But most important is the language of Mr. Justice Powell who wrote the unanimous opinion of the court in Gardner-Denver, 415 U.S. at 47, 94 S.Ct. at 1019:

. . . It does, however, vest federal courts with plenary powers to enforce the statutory requirements; and it specifies with precision the jurisdictional prerequisites that an individual must satisfy before he is entitled to institute a lawsuit. In the present case, these prerequisites were met when petitioner (1) filed timely a charge of employment discrimination with the Commission, and (2) received and acted upon the Commission's statutory notice of the right to sue. 42 U.S.C. § 2000e-5(b), (e), and (f).

This is a clear pronouncement that the 90 day limitation period in the Act for filing a charge with EEOC is a jurisdictional prerequisite "that an individual must satisfy before he is entitled to institute a lawsuit." Here Guy admittedly did not meet the jurisdictional prerequisite.

The limitation in Title VII is more than a mere statute of limitations. The Act creates a right and liability which did not exist at common law and prescribes the remedy. The remedy is an integral part of the right and its requirements must be strictly followed. If they are not, the right ends.

As early as 1886 the Supreme Court recognized the distinction between a statute of limitation and a limitation contained in a statute creating liability and imposing a remedy.

In The Harrisburg, 119 U.S. 199, 214, 7 S.Ct. 140, 147, 30 L.Ed. 358 the court stated:

. . . (W)e are entirely satisfied that this suit was begun too late. The statutes create a new legal liability, with the right to a suit for its enforcement, provided the suit is brought within twelve months, and not otherwise. The time within which the suit must be brought operates as a limitation of the liability itself as created, and not of the remedy alone. It is a condition attached to the right to sue at all. . . .

In Matheny v. Porter, Price Adm'r, 158 F.2d 478, 479 (10th Cir. 1946), the court said:

. . . Ordinarily, a statute of limitation does not confer any right of action, but merely restricts the time within which the right finding its source elsewhere may be asserted. It is not a matter of substantive right. It neither creates the right nor extinguishes it. It affects only the remedy for the enforcement of the right. And unless it affirmatively appears from the face of the complaint that the cause of action is barred by the applicable statute, limitation must be presented by special plea in defense. . . .

But here, section 205(e) creates a new liability, one unknown to the common law and not finding its source elsewhere. It creates the right of action and fixes the time within which a suit for the enforcement of the right must be commenced. It is a statute of creation, and when the period fixed by its terms has run, the substantive right and the corresponding liability end. Not only is the remedy no longer available, but the right of action itself is extinguished. The commencement of the action within the time is an indispensable condition of the liability. Cf. The Harrisburg, 119 U.S. 199, 7 S.Ct. 140, 30 L.Ed. 358; Midstate Horticultural Co., Inc. vs. Pennsylvania R. Co., 320 U.S. 356, 64 S.Ct. 128, 88 L.Ed. 96.

In Callahan v. Chesapeake & O. Ry. Co., 40 F.Supp. 353, 354 (E.D.Ky.1941), District Judge Mac Swinford stated:

The rule is stated in the syllabus from Morrison v. Baltimore & Ohio Railroad Company, 40 App.D.C. 391, Ann.Cas.1914C, page 1026, as follows: "Under the Federal Employers' Liability Act of June 11, 1906, (Fed.St.Ann.1909 Supp. p. 585) the time within which the suit must be brought operates as a limitation of the liability itself as created, and not of the remedy alone. It is a condition attached to the right to sue at all. Time has been made of the essence of the right, and the right is lost if the time is disregarded. The liability and the remedy are created by the same ...