Kirk v. Rockwell Intern. Corp.

• Decision Date: 19 July 1978
• Docket Number: No. 77-2640,77-2640
• Citation: 578 F.2d 814
• Parties: 17 Fair Empl.Prac.Cas. 1380, 17 Empl. Prac. Dec. P 8556 David L. KIRK, Plaintiff-Appellant, v. ROCKWELL INTERNATIONAL CORPORATION, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 814

578 F.2d 814

17 Fair Empl.Prac.Cas. 1380, 17 Empl. Prac.

Dec. P 8556

David L. KIRK, Plaintiff-Appellant, v. ROCKWELL INTERNATIONAL CORPORATION, Defendant-Appellee.

No. 77-2640.

United States Court of Appeals Ninth Circuit.

July 19, 1978.

Stephen H. Silver (argued), of Silver & Wells, Los Angeles, Cal., for plaintiff-appellant.

David J. Shapiro (argued), El Segundo, Cal., for defendant-appellee.

Appeal from the United States District Court for the Central District of California.

Before HUFSTEDLER and WRIGHT, Circuit Judges, and SOLOMON, ^* District Judge.

SOLOMON, District Judge.

Appellant, David L. Kirk, a white male, brought this action against his employer, Rockwell International Corporation (Rockwell) for the violation of his civil rights. Appellant asserts that Rockwell discriminated against him on account of his race in violation of Title VII of the Civil Rights Act of 1964 ¹ and the Civil Rights Act of 1866. ² The District Court granted Rockwell's motion to dismiss the action on the ground that the claims were time-barred.

This appeal raises two issues: (1) whether a state statute of limitations applies to private actions under Title VII, and (2) whether Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975), has retroactive application.

I) Facts

In his complaint, appellant alleges that in 1949 he was employed by Rockwell in California as a Radio and Radar Mechanic. Eventually, Rockwell promoted him to Material Review Engineer, but, in February, 1971, Rockwell demoted him to Inspector.

On or about April 27, 1971 appellant filed a charge with the Equal Employment Opportunity Commission (EEOC). He alleged that Rockwell, when it reduced its staff, systematically demoted whites on the basis of race, ³ and that appellant was a victim of this discriminatory employment practice.

The EEOC referred the charge to the California Fair Employment Practices Commission (FEPC). On about May 26, 1971, the FEPC declined to proceed, and the EEOC assumed jurisdiction of the charge.

On March 30, 1972 the EEOC sent a "Notice of Charge of Employment Discrimination" to Rockwell. Without disclosing appellant's name, the Notice informed Rockwell that it had been charged with discriminating against its employees on the basis of race in "wages, demotion, seniority, qualification/testing, benefits, terms and conditions." The Notice informed Rockwell of the date and place of the violation and included this statement:

"No action on your part is necessary at this time . . . Section 1602.14 of the Commission's Regulations requires the preservation of all relevant personnel records until this charge is resolved." (emphasis added).

Beginning in 1971, appellant made many inquiries on the status of his charge against Rockwell. Not until August 5, 1976 did he learn that he could demand a "Right to Sue Letter" from the EEOC. On August 17, 1976 he received a "Right to Sue Letter" from the EEOC. This was more than 5 years after the date the charge was filed.

The letter notified appellant that the EEOC had not found reasonable cause to believe his charge of discrimination by Rockwell; but, if Kirk wanted to pursue the charge and bring an action against Rockwell, he would have to bring it within 90 days, or he would forfeit his Title VII claim.

Appellant then retained counsel and filed an action within 90 days after he received the letter. In his complaint appellant sought relief under Title VII, and, in a separate count, under 42 U.S.C. § 1981.

Rockwell moved to dismiss the action for failure to state a claim. Rockwell argued that appellant's claims under Title VII and § 1981 were barred by California's statute of limitations.

Rockwell asserts that the longest applicable California statute of limitations is 3 years and that appellant's action filed more than 5 years after the discriminatory act is therefore barred. Rockwell relied on the rule that a federal cause of action for which Congress did not provide a period of limitations borrows the relevant state statute of limitations. E. g., Runyon v. McCrary, 427 U.S. 160, 179-181, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1976).

The District Court agreed with Rockwell and dismissed the action.

II) The Title VII Period of Limitations

Appellant contends that the filing and notice requirements of Title VII constitute a built-in period of limitations, so that it is unnecessary to borrow a state statute. Appellant also asserts that borrowing a state statute of limitations is inappropriate here because it would interfere with the federal policy, expressed in Title VII, of encouraging an aggrieved party to pursue administrative conciliation.

(A)

Title VII was enacted as part of the Civil Rights Act of 1964. ⁴ Title VII prohibited racial discrimination in employment and established procedures for enforcement of this prohibition.

As enacted, Title VII required an aggrieved party to file his charge of discrimination with the EEOC within 90 days of the discriminatory act. ⁵ The EEOC was required to notify the employer of the charge ⁶ and was also required to attempt to conciliate the grievance within 30 days. ⁷ The 30-day requirement was not mandatory; it was only directory. Cunningham v. Litton Industries, 413 F.2d 887, 890 (9th Cir. 1969).

If, after the 30 days, the EEOC determined that conciliation was unlikely, it was required to notify the aggrieved party. The aggrieved party then had 30 days to file an action. ⁸ However, the 30-day period did not begin to run until the aggrieved party received a "Right to Sue Letter", which informed him of his rights. Cunningham v. Litton Industries, supra, at 890-891.

(B)

The legislative history of the 1964 Act shows that the requirement of filing a charge within 90 days of the discriminatory act was intended to serve as a statute of limitations.

In 1964, the House Judiciary Committee favorably reported the bill ⁹ which became the Civil Rights Act of 1964. Section 707(d) of the bill provided:

"No civil action (by an aggrieved party) shall be based on an unlawful employment practice occurring more than six months prior to the filing of the charge with the Commission and the giving of notice thereof to the respondent, unless the person aggrieved thereby was prevented from filing such charge by reason of service in the Armed Forces, in which event a period of military service shall not be included in computing the six-month period."

The bill also provided for a private action if the aggrieved party obtained permission from the EEOC, and required the EEOC to give notice of the charge to the employer.

The House approved the bill, and it was submitted to the Senate.

Senators Clark and Case, floor managers of Title VII of the bill, explained the filing requirement to the Senate:

"The suit . . . would have to be based on an unlawful employment practice occurring within 6 months prior to the filing of the charge with the Commission . . . This limitation will avoid the pressing of stale claims." 110 Cong.Rec. 7213 (1964) (emphasis added).

Senators Clark and Case then participated ¹⁰ in drafting the amended version of the bill, which required the aggrieved party to file his charge within 90 days of the discriminatory act, and to file his action within 30 days of notice from the EEOC. ¹¹ Senator Humphrey, who also participated in the drafting of the final version of the Civil Rights Act of 1964, described the requirement that the charge be filed within 90 days of the discriminatory act as a "period of limitations." 110 Cong.Rec. 12723 (1964).

(C)

In 1972, Title VII was amended by the Equal Employment Opportunity Act of 1972. ¹² Congress made the amendments apply to all charges, including charges which were pending before the EEOC on the effective date, March 24, 1972, of the amendments. See Inda v. United Air Lines, 565 F.2d 554, 560 (9th Cir. 1977).

Unlike the 1964 Act, the amendments gave the EEOC the power to bring an enforcement action. The amendments also extended the time to file a charge of employment discrimination from 90 to 180 days, ¹³ and specified that the EEOC shall give notice of the charge to the employer within 10 days of the date the charge was filed. ¹⁴ The 1964 Act had not specified when the EEOC had to notify the employer.

Congressman Erlenborn, who sponsored the 1972 amendments in the House explained to his colleagues that the specific time limit was for the purpose of:

". . . giving notice to the party charged (so) that he would have an opportunity to gather and preserve the evidence . . ." 117 Cong.Rec. 31972 (1971).

In Occidental Life Insurance Co. v. EEOC, 432 U.S. 355, 97 S.Ct. 2447, 53 L.Ed.2d 402 (1977), the Supreme Court held that state statutes of limitations do not apply to EEOC enforcement actions. The Court permitted the EEOC to bring an action more than 3 years after receipt of the charge. The Court said that the initial filing requirement, and the requirement that the EEOC notify the employer of the charge, were intended by Congress to function as a statute of limitations.

"Congress did express concern for the need of time limitations in the fair operation of the Act, but that concern was directed entirely to the initial filing of a charge with the EEOC and prompt notification thereafter to the alleged violator . . ."

"The fact that the only statute of limitations discussions in Congress were directed to the period immediately preceding the filing of an initial charge is wholly consistent with the Act's overall enforcement structure a sequential series of steps beginning with the filing of a charge with the EEOC. Within this procedural framework, the benchmark, for purposes of a statute of limitations, is not the last phase of the multistage scheme, but the commencement of the proceeding before the administrative body." Occidental Life Insurance Co. v. EEOC, supra, 432 U.S. at 371-372, 97 S.Ct. at 2457-58.

Appellant filed his charge of discrimination with the EEOC...