Jurinko v. Edwin L. Wiegand Company
Decision Date | 17 April 1973 |
Docket Number | 72-1044.,No. 72-1043,72-1043 |
Citation | 477 F.2d 1038 |
Parties | Josephine JURINKO and Ida M. Seibert, Appellants, v. EDWIN L. WIEGAND COMPANY, a corporation and Local 1020, UAW, an unincorporated association. Josephine JURINKO and Ida M. Siebert v. EDWIN L. WIEGAND COMPANY, Appellant, a corporation and Local 1020, UAW, an unincorporated association. |
Court | U.S. Court of Appeals — Third Circuit |
COPYRIGHT MATERIAL OMITTED
Irving L. Bloom, Dent & Bloom, Greensburg, Pa., Robert Allen Sedler, College of Law, University of Kentucky, Lexington, Ky., for cross appellants in No. 72-1043 and appellees in No. 72-1044.
Arnold D. Wilner, Theodore Goldberg, Baskin, Boreman, Wilner, Sachs, Gondelman & Craig, Pittsburgh, Pa., Roger Edgar, Bryan, Cave, McPheeters & McRoberts, St. Louis, Mo., Eric P. Reif, Reed, Smith, Shaw & McClay, Pittsburgh, Pa., for appellees in No. 72-1043 and appellant in No. 72-1044.
Before BIGGS and GIBBONS, Circuit Judges, and HUYETT, District Judge.
The plaintiffs-appellees cross-appellants, Mrs. Josephine Jurinko and Mrs. Ida M. Seibert, alleged in Count II of their complaint1 filed against Edwin L. Wiegand Company (Wiegand) that Wiegand refused to employ them in its factory because they were married women, thereby discriminating against them on the basis of sex in violation of Title VII of the Civil Rights Act of 1964, 42 U.S. C. § 2000e-2(a)(1).2 Jurisdiction is based on 42 U.S.C. § 2000e-5(f) and 28 U.S.C. §§ 1343(3) and 1331(a).
The Equal Employment Opportunity Commission found probable cause to believe that Wiegand had engaged in a discriminatory employment practice but could not mediate the matter.3 On February 14, 1969, Wiegand offered employment to Mrs. Jurinko and Mrs. Siebert, but on the advice of a representative of EEOC both rejected the offer. This action was instituted on February 28, 1969, and after trial to the court, Judge Teitelbaum found that Wiegand had no general policy of discriminating against married women, but he did find that Mrs. Jurinko and Mrs. Siebert were discriminated against and that such discrimination was not based on a "bona fide occupational qualification."4 Judgment was entered in the plaintiffs' favor awarding them $15,784 representing back wages, together with an award of an additional sum in the amount of $3,946 for attorney fees. Judge Teitelbaum also directed Wiegand to offer Mrs. Jurinko and Mrs. Siebert employment "at the next nearest opportunity."5, 6
Wiegand appealed the court's judgment at our No. 72-1044, asserting (1) that the plaintiffs' claims are barred because charges were not filed with the Commission within 90 days of the occurrence of the alleged unlawful employment practice as required by 42 U.S.C. § 2000e-5(d), (2) that the evidence does not support the district court's conclusion that the plaintiffs were discriminated against on account of their marital status, (3) that if there was such discrimination, it was based on a "bona fide occupational qualification" which the plaintiffs did not satisfy, and (4) that the damages awarded plaintiff Siebert were excessive. The plaintiffs have appealed at our No. 72-1043 insofar as the judgment holds that Wiegand's general hiring policy for production department jobs did not discriminate against married women and insofar as it denied recovery of back pay after Feb. 14, 1969, and held that plaintiffs' reinstatement should be as new employees without seniority. It should be noted that the plaintiffs have not appealed from the failure of the district court to treat this suit as a class action under Rule 23, F. R.Civ.P., 28 U.S.C.7 A pre-trial stipulation was entered into by the parties and filed, and reference will be made to it from time to time. The material facts are substantially uncontested, and as Judge Teitelbaum stated: "It is the inferences to be drawn or not to be drawn from the facts that are the core of the controversy." 331 F.Supp. at 1185.
According to the stipulation the plaintiffs were employees of Wiegand for a number of years prior to December 10, 1953; that at that time both were discharged from employment because of their respective marriages; that Wiegand's policy of discharging women upon their marriages and of not hiring married women was instituted at the close of World War II for the purpose of providing jobs for "bread winners" returning after the war and that this policy was lawful at least until July 2, 1965, the effective date of the Civil Rights Act of 1964. In July, 1965, the plaintiffs approached Wiegand's Personnel Director and requested that they be reinstated in their former jobs. The Personnel Director refused this request, stating they were not entitled to reinstatement and in any event the company was not then hiring employees. Thereafter, on September 7, 1965, Mrs. Jurinko submitted a written application for employment with Wiegand, and Mrs. Seibert submitted a similar request to Wiegand on January 10, 1966. At this time, both plaintiffs were informed that the company was not then hiring any employees but that their applications would be kept on file for future reference. In June, 1966, the plaintiffs again contacted the Personnel Director seeking employment and were again informed that Wiegand was not hiring at that time. The plaintiffs filed a charge of discrimination against Wiegand with the Equal Employment Opportunity Commission on July 29, 1966.
The district court stated as follows in respect to the contention of Wiegand that the charges were not timely filed: 331 F.Supp. at 1186, n. 3.
We are in agreement with the district court's conclusion, for there were three separate and distinct acts, the latter of which occurred within the 90-day period. Therefore the 90-day statutory period commenced to run anew from the last allegedly unlawful employment practice. Molybdenum Corp. of America v. Equal Employment Opportunity Commission, 457 F.2d 935 (10 Cir. 1972). The ground raised by Wiegand, that the plaintiffs' failed to timely pursue their administrative remedy, is thus without merit.8
Turning to the contentions in the matter of the district court's conclusions regarding discrimination, the statistical evidence and the attitude of Wiegand's personnel directors are well set out in Judge Teitelbaum's opinion, 331 F.Supp. at 1186, as follows:
On the basis of the above facts, the court concluded: ...
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