Henderson v. First National Bank of Montgomery

• Decision Date: 29 May 1972
• Docket Number: Civ. A. No. 3592-N.
• Citation: 344 F. Supp. 1373
• Parties: Mamie R. HENDERSON, Plaintiff, v. FIRST NATIONAL BANK OF MONTGOMERY, Defendant.
• Court: U.S. District Court — Middle District of Alabama

344 F. Supp. 1373

Mamie R. HENDERSON, Plaintiff, v. FIRST NATIONAL BANK OF MONTGOMERY, Defendant.

Civ. A. No. 3592-N.

United States District Court, M. D. Alabama, N. D.

May 29, 1972.

J. Richmond Pearson, Birmingham, Ala., for plaintiff.

M. R. Nachman, Jr., Montgomery, Ala. (Steiner, Crum & Baker), Montgomery, Ala., for defendant.

ORDER

JOHNSON, Chief Judge.

Plaintiff sought a position as an employee at the defendant bank. In due course she was given a teller's examination and, according to the bank, was not offered employment because of her poor score. Upon the defendant's refusal to hire her, plaintiff filed a complaint with the Equal Employment Opportunity Commission alleging that she had been denied employment because of racial discrimination. After investigation and apparently unsuccessful efforts at conciliation, the EEOC notified plaintiff that she could file a civil suit pursuant to the Civil Rights Act of 1964, 42 U.S. C. § 2000e-5 et seq. Plaintiff thus initiated this action seeking relief for herself and all others similarly situated. Her original complaint claimed a cause of action under 42 U.S.C. § 2000e-5(e) and alleged jurisdiction in this Court pursuant to 28 U.S.C. § 1343. Plaintiff later amended her complaint by adding a second cause of action under 42 U.S.C. § 1981.

The bank has filed a motion to dismiss which in essence rests on three grounds: (1) failure to meet the time requirements of the Civil Rights Act of 1964, (2) failure to exhaust administrative remedies and (3) failure to allege a proper class action. The bank has also filed the supporting affidavit of its executive vice president which states that plaintiff was not employed because she did very poorly on the bank's aptitude test and not because of race. At oral argument of this motion, the bank also raised the defense that the statute of limitations had run on plaintiff's Section 1981 claim before the filing of the complaint.

A key question in this motion to dismiss is whether plaintiff tolled the 90-day time limit within which 42 U.S.C. § 2000e-5(d) prescribes that a charge must be filed with the EEOC. It is uncontroverted that plaintiff first applied to the bank in October, 1969. The vice president's affidavit says that she was give the aptitude test on October 30 and that she was informed of the test results and the decision not to hire within two or three weeks. In no event could plaintiff have been so informed later than December 31, 1969, since defendant's affidavit alleges that the person responsible for testing plaintiff left the defendant's employ on that date. The complaint alleges that plaintiff filed her charge with the EEOC on April 2, 1970. If the bank's affidavit correctly states the facts, then the alleged discrimination took place at least 92 days before the filing of the charge.

Plaintiff has submitted a counter-affidavit in which she states that she did not learn of the decision not to hire until February of 1970. Since factual disputes are to be resolved in favor of the plaintiff upon a motion to dismiss, the Court for the present accepts plaintiff's rendition of the facts and finds that this ground of the motion to dismiss is due to be denied. See Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843, 23 L.Ed.2d 404 (1969); Gardner v. Toilet Goods Ass'n, 387 U.S. 167, 172, 87 S.Ct. 1526, 18 L.Ed.2d 704 (1967); Cooper v. Pate, 378 U.S. 546, 87 S.Ct. 1733, 12 L.Ed.2d 1030 (1964).

Even if plaintiff admitted that she did not contact the EEOC until after 90 days had elapsed, this Court would not be inclined to dismiss the complaint. It appears that the essence of plaintiff's case is not some isolated, static incident but the bank's practice of employing an aptitude test which she alleges discriminates against racial minorities. The alleged wrong which plaintiff seeks to remedy is continuous in nature which is exemplified by the fact that she brought this case as a class action. The examination which was administered to plaintiff is given to each prospective employee and apparently is still in use today.

The Fifth Circuit has quite recently held that a discriminatory employment practice may be a continuing act. In Belt v. Johnson Motor Lines, Inc., 458 F.2d 443 (5th Cir. 1972), the court said:

We cannot agree with the district court that a discriminatory labor practice may not be a continuing act. To so hold on the facts of this case would permit discriminatory acts to go unrebuked, a construction far too restrictive and alien to the liberal construction we have previously given the Civil Rights Act of 1964. (Citations omitted.) Where the complainant has made recourse to the EEOC and the EEOC has attempted to obtain voluntary compliance, there is no reason to lock the courthouse door to his claim solely because he has alleged a contemporary course of conduct as an act of discrimination.

The clear conclusion is that a labor practice may be a continuing wrong and that the 90-day period would be no bar to this sort of civil suit. The Seventh Circuit has recently reached the same result. Bartmess v. Drewrys U.S.A., Inc., 444 F.2d 1186 (7th Cir.), cert. denied, 404 U.S. 939, 92 S.Ct. 274, 30 L.Ed.2d 252 (1971).

The defendant has argued that these cases dealing with the notion of a continuing wrong have involved an existing employment relationship. This Court concludes that a distinction based upon whether the challenged practice affects potential employees or only actual employees is wholly unsound and has no relation to whether the practice is one which continues over a period of time.

As a final point on this issue, it is well to note that defendant's contention that the 90-day requirement of 42 U.S.C. § 2000e-5(d) is jurisdictional does not accurately reflect the state of the law in this circuit. In Belt, supra, the Fifth Circuit noted in passing:

This court's decisions in Culpepper and Boudreaux left undecided the issue of whether the ninety day charge requirement of 42 U.S.C. § 2000e-5 was a jurisdictional prerequisite to suit. In Culpepper v. Reynolds Metals Co., 421 F.2d 888 at 891, the court, by way of dictum, intimated that the ninety day requirement was a jurisdictional prerequisite to a Title VII suit. Judge Wilkey, writing for the court in Boudreaux v. Baton Rouge Marine Contracting Co. 437 F.2d 1011, 1014-15, n. 6, raised a substantial question as to the soundness of the Culpepper dicta, but having an alternative ground for the decision of the court, the panel declined to decide for the first time whether the ninety day filing requirement was indeed a jurisdictional prerequisite.

This case makes certain that the issue of whether the requirement is jurisdictional is an open question.

Defendant also argues that plaintiff has failed to exhaust necessary administrative remedies. The gist of this argument appears to be that plaintiff's suit against the bank is of broader scope than the field investigation of the EEOC. As defendant itself points out, however, the main thrust of the plaintiff's complaint is that the aptitude test has not been validated to determine its impact on minority groups nor its relation to job performance. The EEOC report attached to plaintiff's brief indicates that the agency at least investigated the facts concerning defendant's testing program. In addition, the EEOC letter to plaintiff advising her that she could commence a civil suit if she so desired does not in any way limit the scope of her potential suit. Since plaintiff was subjected to the testing procedure and since the agency has had an opportunity to examine this program, the argument of exhaustion is not persuasive.

Nor is defendant's contention concerning plaintiff's standing meritorious. The thrust of this argument rests on the earlier contention that plaintiff's action is barred by the 90-day requirement of 42 U.S.C. § 2000e-5(d). Defendant argues that since plaintiff should be barred from suit, she necessarily could not represent a class. Inasmuch as this Court has upheld the propriety of plaintiff's case, the basis of the argument that a class action may not be maintained is vitiated.

Defendant's final basis for dismissal is that, at least as to the claim based upon 42 U.S.C. § 1981, the claim was filed too late. As defendant pointed out at oral argument, litigation commenced under Section 1981 has no specific statute of limitations. The limitation period is the analogous period which would be enforced for a similar action brought in state court. Waters v. Wisconsin Steel Works, 427 F.2d 476, 488 (7th Cir. 1970); Lazard v. Boeing Co., 322 F.Supp. 343, 345 (E.D.La.1971). Accordingly, Alabama law controls.

As the court noted in the Lazard case which was, as this case, brought under 42 U.S.C. § 1981 and 42 U.S.C. § 2000e, the cause of action is one for discrimination. The...