Janowiak v. Corporate City of South Bend, Civ. No. S82-0209.

• Court: United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
• Writing for the Court: ALLEN SHARP
• Citation: 576 F. Supp. 1461
• Parties: Timothy JANOWIAK, Plaintiff, v. The CORPORATE CITY OF SOUTH BEND, Board of Public Safety, South Bend Fire Department, Mayor Roger Parent, Timothy Brassell, Fire Chief, Robert Potvin, Stanley M. Przybylinski, Defendants.
• Decision Date: 29 December 1983
• Docket Number: Civ. No. S82-0209.

576 F. Supp. 1461

Timothy JANOWIAK, Plaintiff,
v.
The CORPORATE CITY OF SOUTH BEND, Board of Public Safety, South Bend Fire Department, Mayor Roger Parent, Timothy Brassell, Fire Chief, Robert Potvin, Stanley M. Przybylinski, Defendants.

Civ. No. S82-0209.

United States District Court, N.D. Indiana, South Bend Division.

December 29, 1983.

576 F. Supp. 1462

Victor and Patrick McFadden, South Bend, Ind., for plaintiff.

David A. Nowak, Deputy Atty. Gen., Linley E. Pearson, Indiana Atty. Gen., Indianapolis, Ind., for defendants.

MEMORANDUM AND ORDER

ALLEN SHARP, Chief Judge.

I.

This case was filed pursuant to 42 U.S.C. §§ 1983 and 2000e-2(a)(1), by an individual

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seeking redress for the putative violation of his civil rights by an alleged act of employment discrimination. Jurisdiction of this court over the claims presented is predicated on 28 U.S.C. §§ 1331 and 1343 for the civil rights claim, and 42 U.S.C. § 2000e-5(f)(3) for the employment discrimination (Title VII) claim. The matter is presently before this court on defendants' motion for summary judgment.¹

The gravamen of plaintiff's complaint is that he has been subject to reverse discrimination. Specifically, he complains that he was denied employment as a firefighter by the City of South Bend's Fire Department (Fire Department) solely because of his race (caucasian, white). Plaintiff alleges, and the defendants do not deny, that after submitting to a series of physical and written examinations between July 19, 1980 and October 7, 1980, plaintiff was ranked second on the list of thirty-one applicants for the position of firefighter.

Pursuant to an affirmative action plan adopted by the Fire Department earlier that same year, the list of applicants was in turn divided into two lists: a "minority pool" for non-white applicants, and a "non-minority pool" for white applicants. Nine of the thirty-one applicants were minority members, i.e., black or hispanic, while the remaining twenty-two applicants were white.

On October 28, 1980, it was decided in a public hearing that five applicants would be hired by the Fire Department. However, rather than simply hire those five individuals with the highest scores (all of whom were white), the Fire Department decided, in keeping with the affirmative action program mentioned above, to hire the four top-scoring applicants from the "minority pool", and the highest scoring applicant from the "non-minority pool". Thus, despite the fact that plaintiff outscored all but one of the white applicants, and all of the minority applicants, he was not considered for employment as a firefighter.

On July 7, 1981, plaintiff filed a charge of employment discrimination against the named defendants with the Equal Employment Opportunity Commission (EEOC). On February 19, 1982, plaintiff received a notice of right to sue letter from the EEOC, dismissing his discrimination claim. Plaintiff thereupon filed this action, seeking both damages and injunctive relief.

In their motion for summary judgment, defendants raise as their first argument the plaintiff's allegedly untimely filing of his charge with the EEOC. Defendants contend that the plaintiff did not file his employment discrimination complaint with the EEOC within the requisite 180 days, and his failure to do so therefore divests this court of subject matter jurisdiction.

The plaintiff counters by arguing (1) his employment discrimination charge was timely filed with the EEOC; (2) even if not timely filed, the defendants have waived the affirmative defense of the 180-days statute of limitations by failing to raise it during the EEOC proceedings; or, (3) whether the charge was timely filed or not, the actions of one of the defendants' agents were such that the running of the 180-day time limit was equitably tolled. Each of the above will be addressed in its turn.

Plaintiff's argument that his complaint was timely filed with the EEOC is without merit. It is axiomatic that the untimely filing of a charge with the EEOC renders the Title VII claim or the civil

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rights claim appended thereto subject to dismissal for failure to meet the statute of limitations. United Airlines v. Evans, 431 U.S. 553, 558, 97 S.Ct. 1885, 1889, 52 L.Ed.2d 571 (1977); Heymann v. Tetra Plastics Corp., 640 F.2d 115, 120 (8th Cir. 1981); Stanislaus v. Steorts, 530 F.Supp. 72, 74 (N.D.Ill.1981)

In order to determine just when the 180-day limit begins to run, one looks first to the language of Section 706(e) of the Civil Rights Act of 1964: "A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred...." 42 U.S.C. § 2000e-5(e) (emphasis added). The Supreme Court has construed "occurred" to mean just that: "the proper focus is upon the time of the discriminatory acts, not upon the time which the consequences of the acts become most painful." Delaware State College v. Ricks, 449 U.S. 250, 258, 101 S.Ct. 498, 504, 66 L.Ed.2d 431 (1980) (emphasis by the court), quoting Abrahamson v. University of Hawaii, 594 F.2d 202, 209 (9th Cir.1979).

Applying the above to the facts of this case, it is clear that the allegedly discriminatory acts occurred either on October 28, 1980, when it was decided to hire four minority applicants and only one non-minority applicant, or sometime in November, 1980, when the actual hiring took place. Irrespective of which date is used, however, plaintiff had substantially exceeded the 180-day time limit when he filed his claim with the EEOC on July 7, 1981. See this court's opinion in Battle v. Clark Equipment, Brown Trailer Division, 524 F.Supp. 683, 686 (N.D.Ind.1981).

Notwithstanding the above, plaintiff argues that the alleged discriminatory act was ongoing, from its inception on October 28, 1980, to its "conclusion" in February of 1981, when one of the original four minority applicants was replaced by another minority applicant due to the former's failure to pass one of the subsequent screening examinations. Suffice it to say that this position finds no support in the case law.

Until the Supreme Court's decision in Delaware State College v. Ricks, supra, the general rule was that a discriminatory act was not final, i.e., the 180-day statute of limitations did not begin to run, until the employment position sought by the complainant had been filled. Gates v. Georgia-Pacific Corp., 492 F.2d 292, 294-5 (9th Cir.1974). Accord, see Dumas v. Town of Mt. Vernon, Ala., 612 F.2d 974, 978 n. 2 (5th Cir.1980); Bethel v. Jefferson, 589 F.2d 631, 636 (D.C.Cir.1978); Egelston v. State Univ. College at Geneso, 535 F.2d 752, 755 (2d Cir.1976). Irrespective of whether this case law is still valid for the above-stated proposition,² it is clear from the facts of this case that the discretionary acts of selecting and hiring four minority applicants were completed in November, 1980. The act of replacing one of these four minority members with a fifth minority applicant in February of 1981 was a purely ministerial function which did not act to toll the statute of limitations, as it was nothing more than the implementation of the selection and hiring decisions of October 28, 1980. Research by this court has disclosed no cases holding that such a purely ministerial act starts the rerunning of the statutory 180-day time limit. Accordingly, plaintiff's contention that his charge was timely filed with the EEOC is without merit, and must fail.

As his second line of defense to defendants' motion for summary judgment, plaintiff argues that, because defendants did not raise the 180-day statute of limitation defense during the course of the EEOC proceedings, they have waived it as an affirmative defense in this action. This position is also without merit.

At the outset it must be noted that this court is not sitting in appellate review of the administrative decision rendered by the EEOC in the underlying discrimination

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charge. Rather, this court is...