Hefner v. New Orleans Public Service, Inc.

• Decision Date: 01 November 1979
• Docket Number: No. 77-1671,77-1671
• Citation: 605 F.2d 893
• Parties: 21 Fair Empl.Prac.Cas. 193, 21 Empl. Prac. Dec. P 30,358 Glenn N. HEFNER, etc., Plaintiff-Appellant, v. NEW ORLEANS PUBLIC SERVICE, INC., et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 893

605 F.2d 893

21 Fair Empl.Prac.Cas. 193,

21 Empl. Prac. Dec. P 30,358

Glenn N. HEFNER, etc., Plaintiff-Appellant, v. NEW ORLEANS PUBLIC SERVICE, INC., et al., Defendants-Appellees.

No. 77-1671.

United States Court of Appeals Fifth Circuit.

Nov. 1, 1979.

Dale C. Wilks, Louis B. Merhige, New Orleans, La., for plaintiff-appellant.

Michael J. Molony, Jr., New Orleans, La., for defendants-appellees.

Donald J. Bernard, Sidney H. Cates, IV, New Orleans, La., for Amalgamated Transit Union.

James P. Scanlan, Atty., EEOC, Washington, D. C., amicus curiae, for defendants-appellees.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before GOLDBERG, FAY and VANCE, Circuit Judges.

GOLDBERG, Circuit Judge:

This case involves a challenge under Title VII of the Civil Rights Act of 1964, U.S.C. § 2000e Et seq., and 42 U.S.C. § 1981 to a consent decree resulting from an earlier class action suit and a collective bargaining agreement incorporating its provisions. Together, these agreements implemented an affirmative action program for black transit operators. We do not reach the merits of either of plaintiff's claims since both were filed much too late to be considered, and affirm the trial court's dismissal of the complaint.

I Factual Background

Plaintiff Glenn N. Hefner, a white bus driver for New Orleans Public Service, Inc. ("NOPSI"), brought this action on June 25, 1976, against NOPSI, the Co-operative Street Railway Employees Association, and the Amalgamated Transit Union ("ATU") ¹ claiming unlawful "reverse" racial discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e Et seq., and of 42 U.S.C. § 1981. Hefner purports to represent a class of similarly-situated employees of NOPSI, although the case has never been certified as a class action.

Hefner's complaint challenges certain provisions of a bargaining agreement between NOPSI and ATU signed in December, 1974. The bargaining agreement incorporated the consent order entered in Faggen v. New Orleans Public Service, Inc., No. 70-2946 (E.D.La. March 8, 1974). The propriety of the consent order is also challenged on constitutional and statutory ground. The challenged provisions provide that "pick" lists used for choice of bus routes and vacation time are to be established by alternating white and black drivers hired prior to November 29, 1971, in order of their relative seniority among all such white drivers and black drivers, respectively. Thus, whites occupy the odd-numbered positions on the "pick" lists, and blacks occupy the even-numbered positions.

On March 7, 1974, the day before the consent decree was entered, Hefner filed a charge with the Equal Employment Opportunity Commission alleging discrimination. The EEOC did not investigate the charge because it believed that the district court's entry of the consent order divested it of jurisdiction over the charge. On May 22, 1974, the EEOC informed Hefner of this conclusion and recommended that he request a hearing on the consent order in the District Court or appeal it to the United States Court of Appeals of the Fifth Circuit.

On March 30, 1976, the EEOC sent Hefner a letter notifying him that he had the right to sue in federal court within ninety days. Hefner then filed his complaint in this action on June 25, 1976.

The Defendants moved that the complaint be dismissed for failure to state a claim upon which relief can be granted or, in the alternative, for summary judgment. The district court granted defendants' motion and dismissed the complaint. It held that the remedial provisions of the consent order were lawful under Title VII and that § 1981 conferred no right of action upon white persons.

II Timeliness of Title VII Claim

The statutory provision at issue here is 42 U.S.C.A. § 2000e-5(f)(1) (West 1974), which states in relevant part . . . (i)f a charge filed with the Commission . . . is dismissed by the Commission, or if within one hundred and eighty days from the filing of such charge . . . the Commission has not filed a civil action under this section . . . or the Commission has not entered into a conciliation agreement to which the person aggrieved is a party, the Commission . . ., shall so notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge . . . by the person claiming to be aggrieved.

In administering this section, for some time the EEOC used a two-step procedure by which it would first send a letter informing the complainant either that his charge had been dismissed, his file administratively closed, or that conciliation efforts had failed, and that a second letter (often referred to as a "right-to-sue" letter) would be issued upon the request of the complainant or his attorney. ² Some of these letters explicitly informed the recipient that he would have ninety days from his receipt of the right to sue letter to file suit in federal court. ³ In Zambuto v. American Telephone & Telegraph Co., 544 F.2d 1333 (5th Cir. 1977), we held this "two-tier" procedure to be invalid, but applied our ruling prospectively only so that parties misled by the EEOC's procedure would not lose their right to have their claim heard in federal court. ⁴

In this case, we are faced with a somewhat mysterious variant on the "two-tier" procedure. The first letter sent by the EEOC to Hefner ⁵ did not inform him that he could request a right to sue letter; nor did it inform him that any further EEOC action on his claim was contemplated. It stated explicitly that Hefner's file had been administratively closed because, it said, the EEOC was "powerless to investigate a company which acts in accordance with a Court Order." It also stated that the EEOC had concluded that it lacked jurisdiction to investigate the matter, and that Hefner's appropriate remedy was to request a hearing on the Order in District Court or to appeal the Order to the United States Court of Appeals for the Fifth Circuit.

Whether or not the letter was correct in stating that the EEOC was powerless to investigate the charge, an issue we need not decide, it clearly informed Hefner that he could expect no further action from the EEOC, I. e., that, as far as the EEOC was concerned, his charge was dismissed. This situation is thus entirely different from those in which the first letter communicates that efforts at conciliation have failed and indicates that further action by the EEOC is contemplated, See, e. g., Turner v. Texas Instruments, Inc., 556 F.2d 1349 (5th Cir. 1977), or in which the first letter states only that efforts at conciliation have failed and that complainant has the right to file suit in federal court, See Page v. United States 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). In the latter situation, this Court found that the first letter did not unambiguously inform the complainant that the EEOC had decided not to sue. See id., 556 F.2d at 351; Zambuto, supra, 544 F.2d at 1335. Here, as in Key v. Lumberjack Meats, Inc., 434 F.Supp. 289 (N.D.Ala.1977), the plaintiff could not have reasonably been misled by the first letter into believing that the EEOC contemplated further action "there could be no doubt in the plaintiff's mind that he would receive no further help from the EEOC." Id. at 292.

We have previously held that the notice sent by the EEOC need not inform the complainant of his right to sue, and that it "need only inform the complainant that the administrative process is terminated." Page v. United States Industries, Inc., 556 F.2d 346, 351 n.2 (5th Cir. 1977); See Zambuto, supra, 544 F.2d at 1335; Key v. Lumberjack Meats, Inc., 434 F.Supp. 289 (N.D.Ala.1977); Cf. Eastland v. Tennessee Valley Authority, 553 F.2d 364, 369 (5th Cir.) Cert. denied, 434 U.S. 985, 98 S.Ct. 611, 54 L.Ed.2d 479 (1977) (notice requirement of 42 U.S.C. § 2000e-16). ⁶ The letter of May 22, 1974, sent to Hefner by the EEOC clearly met this test.

Approximately twenty-two months after it sent the first letter, for no apparent reason, ⁷ the EEOC sent Hefner a form letter entitled "Notice of Right to Sue," which informed him that if he wished to file suit in federal court, he would have to do so within ninety days of receipt of the letter. ⁸

If this second letter had been received within ninety days of the first letter, Hefner might persuasively claim that he had failed to file suit within ninety days of the first letter because he was misled by the EEOC into believing that he had ninety days from receipt of the second letter in which to file suit. When incorrect statements of the law in letters from the EEOC have caused potential plaintiffs to fail to file suit within the statutory period, both we and other courts of appeals have been sympathetic to the argument that reliance on misinformation from the agency charged with protecting employee rights should not preclude the employee from enforcing those rights. See, e. g., Zambuto, supra ; DeMatteis, supra. ⁹ But see Lacy v. Chrysler Corp., 533 F.2d 353, 360 (8th Cir.), Cert. denied, 429 U.S. 959, 97 S.Ct. 381, 50 L.Ed.2d 325 (1976). Here, however, the second letter was not received by Hefner until long after the ninety-day filing period had expired. He thus cannot claim that he was misled by either the first or the second letter into missing the filing deadline. ¹⁰

III Timeliness of § 1981 Claim

The trial court rejected Hefner's claim under 42 U.S.C. § 1981, relying on our decision in McDonald v. Santa Fe Trail Transportation Co.,513 F.2d 90 (5th Cir. 1975), Reversed, 427 U.S. 273, 96 S.Ct. 2574, 49 L.Ed.2d 493 (1976), which held that § 1981 confers no actionable rights upon white persons. The Supreme Court has since reversed our holding in that case, McDonald v. Santa Fe Trail Transportation Co., 96 S.Ct. 2574 (1976). We are therefore compelled to hold...