Hemmige v. Chicago Public Schools

• Decision Date: 10 March 1986
• Docket Number: Nos. 83-1443,83-1548,s. 83-1443
• Citation: 786 F.2d 280
• Parties: 40 Fair Empl.Prac.Cas. 457, 40 Empl. Prac. Dec. P 36,197, 31 Ed. Law Rep. 48 Sampath K. HEMMIGE, Plaintiff-Appellant, and Cross-Appellee, v. CHICAGO PUBLIC SCHOOLS, et al., Defendants-Appellees, and Cross-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 280

786 F.2d 280

40 Fair Empl.Prac.Cas. 457,

40 Empl. Prac. Dec. P 36,197, 31 Ed. Law Rep. 48

Sampath K. HEMMIGE, Plaintiff-Appellant, and Cross-Appellee, v. CHICAGO PUBLIC SCHOOLS, et al., Defendants-Appellees, and Cross-Appellants.

Nos. 83-1443, 83-1548.

United States Court of Appeals Seventh Circuit.

Argued Feb. 20, 1985.

Decided March 10, 1986.

Kathern MacKinnon, Northwestern Univ. Leg. Clinic, Chicago, Ill., for plaintiff-appellant, and cross-appellee.

Maria Campo, Chicago Board of Educ. Legal Dept., Chicago, Ill., for defendants-appellees, and cross-appellants.

Before CUDAHY, POSNER, Circuit Judges, and BROWN, Senior District Judge. ^*

WESLEY E. BROWN, Senior District Judge.

In this civil rights action Sampath K. Hemmige, a school teacher, appeals from the judgment and order of the district court dismissing his employment discrimination claims against the Chicago Public School system which were brought under the provisions of 42 U.S.C. Sec. 2000e and 42 U.S.C. Sec. 1983. The defendants, members of the Board of Education of the City of Chicago, and various employees of the board, appeal a judgment in favor of Hemmige which awarded him $570.41 as damages for unpaid teaching hours.

Hemmige, an East Indian Hindu, was employed as a non-tenured, day-to-day substitute teacher in the Chicago Public Schools from the fall of 1977 through July, 1980, pursuant to temporary teaching certificates which were issued upon a yearly basis. His application for a temporary certificate for the 1980-1981 school year was denied in July, 1980, upon a finding that his teaching performance had been unsatisfactory. Hemmige contends that his teaching certificate was not renewed because of discrimination against his national origin and religion, and in retaliation for filing a complaint with the Equal Employment Opportunity Commission (EEOC). He also claims that he was denied procedural due process because he was not given a hearing on the decision not to renew his certificate.

Since an issue has been raised with respect to the appropriate scope of the judicial proceedings below, we first discuss in some detail the background of this case.

While Hemmige has been a teacher for more than thirty years, most of his teaching experience has been in India, Ethiopia and Canada. He has two Masters Degrees--one in English Literature, and the other in Education, and he is qualified as an expert in teaching English as a second language. In June, 1977, he moved to Chicago, Illinois and applied for a temporary teacher's certificate with the Board of Education for the City. He was granted a certificate for the 1977-1978 school year, and was employed as a day-to-day substitute teacher. This was a non-tenured position whereby Hemmige was "on-call" on a daily basis as the need for substitute teachers might dictate. The temporary certificate expired by its own terms on August 31, at the end of each academic year, and in June, 1978, Hemmige reapplied for a certificate for the 1978-1979 school year. In a letter dated July 28, 1978, he was advised that a certificate was being denied due to an unsatisfactory teaching report. ¹

On August 31, 1978, Hemmige filed a discrimination charge with the Illinois Fair Employment Practices Commission, claiming that he had been discriminated against because of his East Indian national origin. ² The school board subsequently issued a certificate for the 1978-1979 school year, and again, a certificate for the 1979-1980 school year. On June 13, 1980, Hemmige filed a charge of religious and national origin discrimination by defendants with the Equal Employment Opportunity Commission. In this charge Hemmige made the following allegations:

"I have been employed by the Chicago Board of Education as a Substitute Teacher since September 1979. (sic) On June 11, 1980 while working at the above named facility (Montefiore High School) I was called a poor Hindu, Indian, told to get out, pushed, and not allowed to sign out by Daniel G. Griffin, Principal. The Board of Education employs more than 15 people.

"I was called names, pushed and told to leave without being allowed to sign out by Mr. Griffin because I had gone to the restroom. The Board of Education's contract with the Chicago Teachers Union Sections 6-17, 17-2 and 25-1 allow teachers to have a lunch period and a free period during the day. Teachers are not required to work more than 6 periods a day. There are at least five (5) minutes between classes for breaks.

"I believe that I have been discriminated against because of my national origin, East Indian, in that: I was not allowed to take a break during the day. After he learned that I had taken a break during class, Mr. Griffin pushed me and yelled, 'poor Hindu, Indian get the hell out and go to your country. I won't let you sign out.' He also called the police. Officer Ramao ... asked Mr. Griffin to allow me to sign out. Mr. Griffin refused and at 2:20 p.m. I left the building.

"Mr. Griffin refused to allow me to sign out. He told me I would not be paid for the day."

While this charge was pending, Hemmige applied for a temporary certificate for the 1980-1981 school year. In a letter dated July 18, 1980, Hemmige was informed by the Board that it would not renew his teaching certificate, citing seven unsatisfactory reports from various Chicago public schools.

After receiving a right to sue letter, Hemmige filed a pro se complaint in this action. He there complained of discrimination in race, color, sex, religion, and national origin, claiming that he had been ill treated in every respect. After counsel was appointed, a four count amended petition was filed, which claimed that defendants discriminated against him on the basis of national origin and Hindu religion, retaliated against him for filing the EEOC charge, denied due process by deciding not to renew the certificate, without prior notice or opportunity to be heard, and that the defendants had breached his contract by failing to pay him for all of his work.

On February 10, 1982, the District Court granted defendant's motion to dismiss charges of alleged discrimination occurring prior to August 19, 1979 because they were not timely filed. The court noted that an incident which occurred at Moses Montefiore School on June 11, 1980, was the subject matter of the EEOC charge filed by Hemmige on June 13, 1980. The scope of the amended complaint, however, covered alleged discrimination from September, 1977 to September, 1980, and in addition, included a charge of retaliation for filing the 1980 charge. In determining the appropriate scope of the amended complaint, as it related to the EEOC charge, the trial court recognized that the scope of the judicial complaint is not limited to the precise facts set out in the EEOC charge--but rather "to the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination." See Jenkins v. Blue Cross Mut. Hospital Ins., Inc., 538 F.2d 164, 167 (7 Cir.1976), cert. denied, 429 U.S. 986, 97 S.Ct. 506, 50 L.Ed.2d 598, citing the standard applied in Danner v. Phillips Petroleum Co., 447 F.2d 159, 162 (5 Cir.1971):

"The correct rule to follow in construing EEOC charges for purposes of delineating the proper scope of a subsequent judicial inquiry is that 'the complaint in the civil action * * * may properly encompass any * * * discrimination like or reasonably related to the allegations of the charge and growing out of such allegations * * * *.' " (Citing King v. Georgia Power Co., 295 F.Supp. 943, 947 (N.D.Ga.1968)).

The trial court found that the allegations of Count II of the amended petition, which related to a pattern of discrimination by defendant against minorities, vastly exceeded any investigation which could reasonably be expected to grow out of the charge of discrimination relating to the events at Montefiore High School on June 11, 1980. Accordingly, Count II was dismissed in its entirety.

Count I of the petition concerned several incidents of conduct which preceded the incident of June 11, 1980. The court found that any alleged acts which occurred before August 19, 1979 (300 days before the EEOC charge was filed) were untimely under Section 706(e) of Title VII, 42 U.S.C. Sec. 2000e-5(e), which provides that:

"... (I)n a case of 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 ... 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 proceeding under the State or local law, whichever is earlier...."

See Mohasco Corp. v. Silver, 447 U.S. 807, 100 S.Ct. 2486, 65 L.Ed.2d 532 (1980).

The retaliation claim was allowed to stand since the permissible scope of a judicial complaint includes any new acts occurring during the pendency of the charge before the EEOC.

Plaintiff contends that the allegations in Count I establish a "continuing violation" theory of discrimination and that the district court erred in dismissing allegations which concerned incidents occurring prior to August 19, 1979. In Stewart v. CPC International Inc., 679 F.2d 117, 120 (7th Cir.1982), this Circuit determined that a plaintiff can charge a continuing violation when the employer has engaged in a practice of discrimination, usually involving hiring or promotion practices, where it is difficult to fix the exact day a particular violation may have occurred, or where an employer has covertly followed a practice of discrimination. However, in Stewart we recognized that a finding of continuing discrimination must be based upon a present violation, within the relevant time period. In our discussion of United Air Lines, Inc. v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52...