Hernandez v. Hill Country Telephone Co-op., Inc.
| Decision Date | 17 June 1988 |
| Docket Number | Nos. 87-5507,87-5564 and 87-5581,s. 87-5507 |
| Parties | 47 Fair Empl.Prac.Cas. 318, 47 Empl. Prac. Dec. P 38,121 Santos R. HERNANDEZ, Plaintiff-Appellee, Cross-Appellant, v. HILL COUNTRY TELEPHONE COOPERATIVE, INC. and Anthony Thorne, Defendants- Appellants, Cross-Appellees. Santos R. HERNANDEZ, Plaintiff-Appellee, v. HILL COUNTRY TELEPHONE COOPERATIVE, INC. and Anthony Thorne, Defendants- Appellants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Lavern D. Harris, Susan F. Harris, Harris, Monroe & Williams, P.C., Kerrville, Tex., Allen P. Schoolfield, Jr., Dallas, Tex., for defendants-appellants.
Glen D. Mangum, Manuel Escobar, Jr., San Antonio, Tex., for plaintiff-appellee.
Appeals from the United States District Court for the Western District of Texas.
Before RUBIN and POLITZ, Circuit Judges, and DUHE, District Judge. *
In these consolidated appeals Hill Country Telephone Cooperative, Inc. and its president, Anthony Thorne, challenge the findings of the district court that they discriminated against Santos R. Hernandez on the basis of his race and national origin. Hernandez filed suit pursuant to 42 U.S.C. Sec. 1981, and Title VII of the Civil Rights Act of 1964, 42 U.S.C. Secs. 2000e, et seq. Hill Country and Thorne (hereinafter, unless noted, collectively referred to as Hill Country) also assign error to the court's ruling on the issue of limitations and to the award of attorney's fees. Hernandez appeals, contending that the court erred in exonerating Hill Country from liability for other discriminatory acts and for declining to grant him a trial by jury. Finding that the evidence supports the court's factual findings and that its rulings reflect neither error of law nor abuse of discretion, we affirm.
On October 8, 1981 Hernandez, a Mexican-American, applied to Hill Country for a position in "construction or whatever he qualified for." During the employment interview, Hill Country learned of Hernandez's substantial training and experience in electronics. Although it had available two higher paying jobs in the installation-repair department, for which Hernandez was qualified, Hill Country told Hernandez that the only job available was Construction-Journeyman II at an hourly rate of $4.26. Hernandez accepted that job. Hill Country promptly filled the two other positions with Anglo-Caucasians.
Hernandez completed his 90-day probationary period and received a modest pay increase. A few months later he applied for an open position in installation-repair for which he was qualified by his prior training and experience. Instead of assigning the job to Hernandez, Hill Country rewrote the job description, juggled jobs and gave the position to an Anglo-Caucasian employee less qualified and with less seniority than Hernandez. Hernandez complained to management and was promised the next available position compatible with his electronics training. He was subsequently promoted to Installer-Repairman II, with identical duties as an Installer-Repairman I, but at a substantially lower rate of pay.
On November 2, 1982 Hernandez filed a charge with the Equal Employment Opportunity Commission, claiming that Hill Country had failed to promote him because of his national origin, and had denied him equal wages, benefits, and employment opportunities. Hernandez amended this charge on July 13, 1983, to add a claim of racial discrimination. During the pendency of this charge Hernandez unsuccessfully sought other available positions. Hill Country ultimately changed his job classification to Installer-Repairman I when it abolished the Installer-Repairman II classification.
When Hernandez requested its issuance, a notice of right-to-sue was posted. The EEOC sent the notice by certified mail to Hernandez, mailing copies to his attorney and to the attorney for Hill Country. Hernandez received the notice on December 7, 1983; his attorney received his copy on November 25, 1983. Suit was filed on February 27, 1984, invoking both Title VII and 42 U.S.C. Sec. 1981, seeking compensatory and punitive damages, and equitable relief. The complaint went beyond the charges in the EEOC complaint, adding an allegation of discrimination for denial of a promotion in 1983 and for retaliation for filing the EEOC charge.
Hill Country moved for summary judgment or dismissal, contending that: (1) the suit was untimely because it was filed more than 90 days after receipt of notice by Hernandez's attorney; (2) Thorne had not been named individually in the EEOC complaint; and (3) the Texas two-year statute of limitations applied to the Sec. 1981 claim; therefore, incidents occurring before February 27, 1982 were barred. The district court granted the motion in part, ruling that claims against Thorne were limited to Sec. 1981, and that any Sec. 1981 claim arising before February 27, 1982 was barred by limitations. The court rejected that part of the motion claiming that Hernandez had filed the Title VII claim untimely.
Following a bench trial the court found that Hill Country and Thorne had discriminated against Hernandez by: (1) failing to hire him for an available position for which he was qualified; (2) failing to provide the same on-the-job training received by similarly situated Anglo-Caucasians; and (3) failing to grant him pay raises at six-month intervals as was done for all other employees. The court awarded judgment on the Title VII claim against Hill Country, and on the Sec. 1981 claim against Hill Country and Thorne. In addition to injunctive relief, the court awarded Hernandez damages totaling $13,100.80, attorney's fees of $41,816.80 for costs.
Both parties appeal. Hill Country contends that the Title VII complaint was not filed timely; that its liability for discrimination should not extend to acts occurring more than 180 days before the charge was filed with the EEOC; that it was improper to consider the complaint under both Title VII and Sec. 1981; that the evidence does not support the judgment; and, finally, that the award of attorney's fees was inappropriate and disproportionate to the relief secured and in excess of Hernandez's contract with his attorney. Hernandez appeals, contending that the court erred in exonerating the defendants from other discriminatory acts and for denying him a trial by jury.
Hill Country contends that the 90-day period for filing suit, 42 U.S.C. Sec. 2000e-5(f), began to run when counsel for Hernandez received the right-to-sue letter. Hill Country errs. We have held repeatedly that when the right-to-sue letter is addressed to the claimant, the 90-day period begins to accrue when the claimant receives the notice. Bunch v. Bullard, 795 F.2d 384 (5th Cir.1986); Espinoza v. Missouri Pacific R. Co., 754 F.2d 1247 (5th Cir.1985). Hernandez received the notice at his address on December 7, 1983. The suit, filed on February 27, 1984, was timely.
Under 42 U.S.C. Sec. 2000e-5(e) a charge must be filed with the EEOC within 180 days after the alleged discriminatory act. Hill Country argues that the trial court erred in finding it liable for discrimination based on acts which occurred more than 180 days prior to November 2, 1982, the date Hernandez filed his initial EEOC charge. This issue was not raised in the trial court and is first presented on appeal. We must deem it waived.
In Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982), the Supreme Court held
that filing a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling. The structure of Title VII, the congressional policy underlying it, and the reasoning of our cases all lead to this conclusion.
455 U.S. at 393, 102 S.Ct. at 1132, 71 L.Ed.2d at 243 (footnote omitted). Citing Oaxaca v. Rosco, 641 F.2d 386 (5th Cir.1981), Hill Country contends that its motion for summary judgment or dismissal sufficed as an invocation of the 180-day provision. Hill Country suggests that Oaxaca stands for the proposition that a motion to dismiss for failure to state a claim upon which relief can be granted implicitly raises all limitations which might be advanced in defense of the claim. We are not persuaded. Oaxaca does not so hold. We also note that the argument is contrary to both the letter and spirit of Fed.R.Civ.P. 46, which requires that "a party, at the time the ruling or order of the court is made or sought, makes known to the court the ... party's objection to the action of the court and the grounds therefor...." The failure of Hill Country to raise the 180-day limitation, in any written motion, or even orally, constitutes the waiver referred to in Zipes. See also, Moore v. Tangipahoa Parish Sch. Bd., 594 F.2d 489 (5th Cir.1979) (); Pearce v. Wichita County, 590 F.2d 128 (5th Cir.1979).
Relying upon our decision in Parker v. Mississippi St. Dept. of Pub. Welfare, 811 F.2d 925 (5th Cir.1987), Hill Country maintains that the district court erred in considering Hernandez's claims under both Title VII and Sec. 1981. In Parker we stated:
Parker also alleged that MDPW's discriminatory promotion decision violated Sec. 1981 of the Civil Rights Act of 1866, 42 U.S.C. Sec. 1981 and Sec. 1983 of the Civil Rights Act of 1871, 42 U.S.C. Sec. 1983. In this Circuit, specific consideration of these alternate remedies for employment discrimination is necessary only if their violation can be made out on grounds different from those available under Title VII. See Watson v. Ft. Worth Bank & Trust, 798 F.2d 791, 794 n. 4 (5th Cir.1986); Rivera v. City of Wichita...
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