Julian v. City of Houston, Tex.

Decision Date11 December 2002
Docket NumberNo. 01-20541.,01-20541.
Citation314 F.3d 721
PartiesCharles H. JULIAN, Plaintiff-Appellee-Cross-Appellant, v. The CITY OF HOUSTON, TEXAS, et al., Defendants, The City of Houston, Texas, Defendant-Appellant-Cross-Appellee.
CourtU.S. Court of Appeals — Fifth Circuit

Peter Costea, Law Office of Peter Costea, Houston, TX, for Julian.

Timothy James Higley, Houston, TX, for City of Houston.

Appeals from the United States District Court for the Southern District of Texas.

Before DeMOSS, STEWART and DENNIS, Circuit Judges.

DENNIS, Circuit Judge:

A jury found that the City of Houston failed to promote firefighter Charles Julian on the basis of his age in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-34. Both parties appeal. The City contends that the district court lacked subject matter jurisdiction because Julian did not obtain a right-to-sue letter from the Equal Employment Opportunity Commission ("EEOC") prior to filing his ADEA claim. The City also argues that the district court improperly instructed the jury. Julian, on the other hand, contests the district court's denial of his request for front pay. We hold that the receipt of a right-to-sue notice is not a prerequisite to filing an ADEA action. We also find that the City has not demonstrated improper instruction of the jury. And we conclude that the district court must reconsider whether Julian should be awarded front pay. We therefore AFFIRM the district court's judgment in part, VACATE in part, and REMAND.

I. BACKGROUND

Charles Julian is a sixty-year-old fire-fighter who has served the City of Houston since 1968. He became a District Chief of the City's fire department in 1984. Since 1989, however, the City has denied him promotion to Assistant Fire Chief five times.

On October 10, 1995, Julian filed a charge of discrimination with the EEOC, alleging that he had not been promoted to the Assistant Chief level in September 1995 because he is black. The United States Department of Justice issued him a right-to-sue notice in December 1998. In accordance with the notice, Julian instituted this action against the City under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e to 2000e-17. In his suit, filed in the Southern District of Texas on March 1, 1999, Julian complained of promotion denials occurring between 1989 and May 1998. But his right-to-sue notice only covered his allegation that he was denied promotion in September 1995 because of his race. Therefore, Julian filed a second charge with the EEOC on March 5, 1999, that included all of the promotion denials. In addition to alleging race discrimination, Julian also claimed that the City had discriminated against him on the basis of his age in violation of the ADEA. On July 27, 1999, the Department of Justice issued Julian another right-to-sue notice. The notice, however, only addressed Julian's Title VII claims.

On August 10, 1999, Julian filed an unopposed motion to amend his federal court complaint to include an ADEA claim. Two days later, the district court granted the motion, and Julian filed his First Amended Complaint.

In February 2000, the City moved for summary judgment on all of Julian's claims. The district court granted the motion in part and dismissed Julian's Title VII claims. The case proceeded to jury trial on the ADEA claim alone. On May 25, 2000, a jury found that the City intentionally failed to promote Julian to the position of Assistant Fire Chief on the basis of his age and awarded him $109,222.00 in back pay and benefits. The district court entered judgment on the verdict, but denied Julian's request for front pay. The City then filed a renewed motion for judgment as a matter of law, arguing, among other grounds, that the district court did not have subject matter jurisdiction. The City also moved for a new trial on the basis of improper jury instructions. The district court denied the City's post-judgment motions on April 23, 2001. Both parties filed timely notices of appeal.

II. ANALYSIS
A. Right-to-Sue Notice and the ADEA

We review de novo the denial of the City's motion for judgment as a matter of law, applying the same standard that the district court used.1 "[T]he issue of subject matter jurisdiction is subject to plenary review by this court."2

The City contends, as it did in its JMOL motion, that the judgment in Julian's favor should be set aside due to his failure to obtain a right-to-sue notice from the EEOC prior to asserting his ADEA claim. In the City's view, the right-to-sue notice is a jurisdictional prerequisite to bringing an ADEA action in federal court. This contention lacks merit. Although Title VII provides that the right to bring suit does not arise until after the EEOC has issued a right-to-sue notice,3 the ADEA has no such requirement.

But there are preconditions to bringing suit under the ADEA. Title 29 U.S.C. § 626(d) provides: "No civil action may be commenced by an individual under this section until 60 days after a charge alleging unlawful discrimination has been filed with the Equal Employment Opportunity Commission."4 Thus, a person seeking relief under the ADEA must first file an administrative charge with the EEOC.5 And § 626(d) establishes time limits for filing the EEOC charge. For cases arising in Texas, a complainant must file within 300 days of the last act of discrimination.6 After timely filing the EEOC charge, the complainant must then wait sixty days before filing a civil action. Under the plain language of § 626(d), "the claimant's independent right to sue arises automatically upon the expiration of sixty days after filing of the charge with the EEOC."7 Accordingly, a complainant who timely files the EEOC charge and then observes the sixty-day waiting period has satisfied the statutory preconditions to filing suit.8

In this case, Julian filed a charge of age discrimination with the EEOC on March 5, 1999, and the City does not dispute the timeliness of the charge.9 He did not amend his federal suit to include an ADEA claim until August 10, 1999, well beyond the sixty-day period. Julian's decision to assert his claim by amending the pending suit instead of filing a new one does not complicate our analysis. He clearly had the right to sue in August 1999, and we do not fault him for choosing the more efficient of his two options. We therefore find that Julian satisfied the statutory preconditions to commencing an ADEA action.

In arguing that the receipt of a right-to-sue notice is an additional precondition to filing an ADEA suit, the City calls our attention to 29 U.S.C. § 626(e). Section 626(e) provides that if a charge filed with the EEOC is dismissed or the proceedings are otherwise terminated, the EEOC must notify the complainant, who may then bring a civil action within ninety days after receipt of the EEOC notice.10 Although this section establishes a ninety-day limitations period for the ADEA complainant who actually receives notice from the EEOC, it does not require a complainant to receive such notice before filing suit.11 Thus, in cases such as this one, where a plaintiff commences a civil action after the sixty-day waiting period, but before the EEOC responds to his charge, § 626(e) is irrelevant because the action has been timely filed.12

In short, we decline the City's invitation to create the additional requirement it advocates and hold that the receipt of a right-to-sue notice is not a prerequisite to filing an ADEA action. The district court properly denied the City's motion for JMOL on this issue.

B. Jury Instructions

We review the district court's jury charge for abuse of discretion.13 "If a party wishes to complain on appeal of the district court's refusal to give a proffered instruction, that party must show as a threshold matter that the proposed instruction correctly stated the law."14 If a party makes this threshold showing, he must then demonstrate that the actual charge "as a whole creates substantial and ineradicable doubt whether the jury has been properly guided in its deliberations."15 But if the charge correctly states the substance of the law, we will not reverse.16

The City argues that the district court erred in refusing to give the following "business judgment" instruction:

You are instructed that an employer is free to direct its work force as it considers best to meet its objectives. You are not being asked to judge whether acts by the Defendant were wise, whether they represented good management, or whether you would have handled matters in a different fashion. The City is free to use its own judgment, so long as it did not act with the intent to discriminate against Mr. Julian because of his age.

The City cites only one case, Walker v. AT&T Technologies,17 in support of its argument that the district court's failure to give this instruction constitutes reversible error. But the City's reliance on the Eighth Circuit's opinion in Walker is misplaced. The Walker court ordered a new trial because the district court refused to instruct the jury that the defendant had a right to make employment decisions for any nondiscriminatory reason.18 Here, the district court's jury charge effectively communicated this principle of substantive law:

Your verdict should be for the defendant if you find that the defendant has proved that plaintiff would not have received the promotion regardless of his age. You should not find that the decision is unlawful just because you may disagree with the defendant's stated reason or because you believe the decision was harsh or unreasonable, as long as defendant would have reached the same decision regardless of plaintiff's age.

. . . .

It is not against the law for an employer to fail to promote an employee who is over forty years of age if the reason for doing so is unrelated to the employee's age....

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