Jackson v. Richards Medical Co.

Decision Date10 April 1992
Docket NumberNo. 91-5473,91-5473
Citation961 F.2d 575
Parties58 Fair Empl.Prac.Cas. (BNA) 869, 58 Empl. Prac. Dec. P 41,393, 60 USLW 2656 Susie J. JACKSON, Plaintiff-Appellant, v. RICHARDS MEDICAL COMPANY, Defendant-Appellee.
CourtU.S. Court of Appeals — Sixth Circuit

Dwight E. Duncan (argued & briefed), Memphis, Tenn., for plaintiff-appellant.

Thomas L. Henderson (argued & briefed), Frederick J. Lewis (briefed), Frederick J. Lewis, McKnight, Hudson, Lewis, Henderson & Clark, Memphis, Tenn., for defendant-appellee.

Carolyn L. Wheeler (briefed), E.E.O.C., Washington, D.C., for amicus curiae E.E.O.C.

Before: MERRITT, Chief Judge, GUY, Circuit Judge, and WELLFORD, Senior Circuit Judge.

MERRITT, Chief Judge.

The plaintiff, Susie J. Jackson, appeals the District Court's dismissal of her Title VII, Age Discrimination, and 42 U.S.C. § 1981 claims. We hold that the plaintiff's ADEA and § 1981 claims are time-barred. Further, we hold that as a matter of law the plaintiff fails to state a claim of race discrimination under Title VII.

Though the panel is unanimous as to the ultimate disposition of this case, Judges Guy and Wellford disagree with part IV B of this opinion. Therefore, Judge Guy writes for the court as to the issue discussed in part IV B of this opinion.

I.

Ms. Jackson, an African American, was born in 1939. In 1976 she began work as a "Shop Order Clerk" at Richards Medical Company, the defendant. On January 12, 1984 she received notice that she was subject to a layoff from her position because her job functions were going to be combined with those of the "Engineering Micrographics Clerk." Before effecting the layoff, the defendant administered a written exam to Ms. Jackson to determine whether she met minimum qualifications for the new clerk position. On February 20, 1984, the Engineering Micrographics Clerk position was awarded to Ms. Gwendolyn Richmond, also of African American descent. Ms. Richmond was less than 40 years of age and had been with Richards Medical Company a shorter period of time than the plaintiff when awarded the job. On February 24, Ms. Jackson was laid off at the age of 44.

The plaintiff, acting without counsel, filed a timely charge with the Equal Employment Opportunity Commission and the Tennessee Human Rights Commission alleging that the defendant discriminated against her on the basis of race. On December 31, 1984, the EEOC found that there was "not reasonable cause" to support the allegation. The Commission issued a Notice of Right to Sue which allowed the plaintiff 90 days within which to file suit against her former employer. After the right to sue notice was issued, the plaintiff told the EEOC that the defendant had "doctored" the scores on her written exam. Before the expiration of the 90 day right to sue period, the EEOC withdrew its no cause determination. After investigating the new allegation, the EEOC, on May 31, 1985, issued a second no cause determination and a second right to sue notice. On August 30, 1985, the plaintiff filed suit in the District Court for the Western District of Tennessee, alleging that the defendant terminated her because of her race, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-1 et seq. The plaintiff filed her Complaint within 90 days of the issuance of her second right to sue notice.

On August 27, 1985, the plaintiff, still pro se, filed a second discrimination charge against the defendant with the EEOC--this time on the basis of age. The plaintiff acquired counsel in November 1985. In February 1986, the plaintiff amended her Complaint to include a cause of action under Section 4(a)(1) of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. In response, the defendant filed a Motion to Dismiss, or in the alternative, a Motion for Summary Judgment. In August 1989, the District Court permitted the plaintiff to further amend her Complaint to include a claim under 42 U.S.C. § 1981, alleging that the defendant failed to promote, or in the alternative, discharged the plaintiff because of her race.

The District Court dismissed the plaintiff's three claims. The Court held that, under Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989), § 1981 did not extend to the plaintiff's failure to promote and discriminatory discharge claims. The Court dismissed the ADEA and Title VII actions as time-barred. With respect to the ADEA claim, it held that the plaintiff failed to file her ADEA charge with the EEOC within 300 days of her discharge. As for the Title VII claim, the District Court stated that the plaintiff's allegation that the defendant doctored her exam scores amounted to an ill-disguised attempt to extend the 90 day limitations period of the first right to sue notice. The Court relied on Gonzalez v. Firestone Tire & Rubber Co., 610 F.2d 241 (5th Cir.1980), for the proposition that the issuance of a new notice by the EEOC could be challenged as an improper attempt to extend the initial notice period. Characterizing as "baseless" the plaintiff's exam allegation, the Court held that the plaintiff could not avoid the limitation period established by the first notice. Because the first 90-day limitation period had expired when the plaintiff filed her District Court Complaint, the Court held the Title VII action time-barred.

The plaintiff appeals the dismissal of her claims. The EEOC requested leave to file a brief as amicus curiae supporting the plaintiff's position that the District Court erred in declaring the Title VII action untimely. We granted this request and offered the defendant an opportunity to respond to the EEOC's brief.

II. Section 1981 Claim

The District Court dismissed the plaintiff's § 1981 action on the ground that she failed to state a claim meeting the requirements set forth by the Supreme Court in Patterson. Our standard of review of a motion to dismiss under Fed.R.Civ.P. 12(b)(6) is that "to be granted, there must be no set of facts which would entitle the plaintiff to recover. Matters outside the pleadings are not to be considered, and all well-pleaded facts must be taken as true." Hammond v. Baldwin, 866 F.2d 172, 175 (6th Cir.1989) (citations omitted). As it happens, we need not address the holding of Patterson, the plaintiff's attempt to bypass Patterson, or Congress' overruling of Patterson, 1 for we find that the plaintiff's § 1981 action is time-barred.

"Because § 1981 ... does not contain a statute of limitations, federal courts should select the most appropriate or analogous state statute of limitations." Goodman v. Lukens Steel Co., 482 U.S. 656, 660, 107 S.Ct. 2617, 2620, 96 L.Ed.2d 572 (1987). This Circuit has held that a state's limitations period for personal injury actions is "the most analogous statute" to § 1981. Johnson v. Railway Express Agency, Inc., 489 F.2d 525, 529 (6th Cir.1973). Accord Goodman, 482 U.S. at 661-64, 107 S.Ct. at 2621-22 (rejecting the application of Pennsylvania's 6-year statute of limitations governing claims on contracts and affirming the Second Circuit's application of Pennsylvania's 2-year limitations period governing personal injury actions). Tennessee law provides that civil actions brought under the federal civil rights statutes shall be commenced within one year after the cause of action accrued. TENN. CODE ANN. § 28-3-104 (1985).

Ms. Jackson was discharged in February 1984. She did not bring her § 1981 claim until August 1989. Even if we were to accept the plaintiff's argument that her § 1981 action relates back to the filing of her Title VII Complaint (August 1985) her § 1981 action would be time-barred. Consequently, we affirm the District Court's dismissal of the plaintiff's § 1981 action, albeit for other reasons. See Foster v. Kassulke, 898 F.2d 1144, 1146 (6th Cir.1990).

III. ADEA Claim

The District Court dismissed plaintiff's ADEA action as time-barred. In considering a motion to dismiss for lack of subject matter jurisdiction, the complaint is to be liberally construed and all uncontroverted factual allegations on the face of the complaint are to be taken as true. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974).

The timely filing of a charge of age discrimination with the EEOC is ordinarily a condition precedent to an ADEA lawsuit. The ADEA statute sets out two limitations periods for the filing of a charge: 180 days after the alleged unlawful practice occurred, or 300 days after the alleged unlawful practice occurred. 29 U.S.C. § 626(d). The 300 day period applies where the alleged unlawful practice occurs in a state which has enacted its own laws prohibiting age discrimination in employment, and has authorized a state agency to seek relief for the individual suffering the discrimination. 29 U.S.C. § 633(b). Such a state is commonly known as a "deferral" state. The purpose of the longer limitation period is to give deferral states time to act upon the ADEA complaint, in accordance with Congress' intent that "informal methods of conciliation, conference, and persuasion" be used to eliminate the discriminatory practice before an action is initiated in the courts. 29 U.S.C. § 626(b). While failure to adhere to the limitation period may result in the suit's dismissal as time-barred, the 300/180 day filing periods under the ADEA are not "jurisdictional prerequisites" to maintaining a legal action. Rather, the ADEA filing period is more in the nature of a statute of limitations that is subject to equitable modification. See Wright v. State of Tennessee, 628 F.2d 949 (6th Cir.1980) (en banc); Kale v. Combined Ins. Co. of America, 861 F.2d 746 (1st Cir.1988) (plaintiff may modify the length of ADEA filing period through equitable estoppel and equitable tolling). See also Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 1132, 71 L.Ed.2d 234 (1982) (analogous filing period under Title VII is subject to...

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