Krzyzewski v. Metropolitan Government of Nashville and Davidson County

• Decision Date: 03 October 1978
• Docket Number: Nos. 77-1091,77-1092,s. 77-1091
• Citation: 584 F.2d 802
• Parties: 18 Fair Empl.Prac.Cas. 175, 18 Empl. Prac. Dec. P 8653 Lorraine A. KRZYZEWSKI, Plaintiff-Appellant Cross-Appellee, v. METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, Metropolitan Nashville-Davidson County Police Department, Joe Casey, James C. Abernathy, Defendants-Appellees Cross-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 802

584 F.2d 802

18 Fair Empl.Prac.Cas. 175, 18 Empl. Prac.

Dec. P 8653

Lorraine A. KRZYZEWSKI, Plaintiff-Appellant Cross-Appellee, v. METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY,

Metropolitan Nashville-Davidson County Police

Department, Joe Casey, James C.

Abernathy,

Defendants-Appellees

Cross-Appellants.

Nos. 77-1091, 77-1092.

United States Court of Appeals, Sixth Circuit.

Argued June 15, 1978.

Decided Oct. 3, 1978.

George E. Barrett, Charles R. Ray, Barrett & Barrett, P. C., Nashville, Tenn., Lutz Alexander Prager, Washington, D. C., Leopoldo Fraga, Jr., EEOC, Washington, D. C., for plaintiff-appellant cross-appellee.

Lorraine Krzyzewski, for E.E.O.C. as amicus curiae.

Donald W. Jones, Metropolitan Dept. of Law, Nashville, Tenn., for defendants-appellees cross-appellants.

Before PHILLIPS, Chief Judge, and LIVELY and KEITH, Circuit Judges.

LIVELY, Circuit Judge.

This is a Title VII action charging discrimination on the basis of sex. Following a bench trial on all issues raised by the pleadings the district court dismissed the action for failure of the plaintiff to file a charge with the Equal Employment Opportunity Commission (EEOC) within the time prescribed by the statute. ¹ The Civil Rights Act of 1964, as amended by the Equal Employment Opportunity Act of 1972, requires the filing of a charge in the following language:

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) (1970 ed. Supp. V).

The dispute in this case centers on the question of when the "alleged unlawful employment practice occurred."

The plaintiff, an unmarried woman, was employed by the Nashville police department on January 1, 1974 and began training at the police academy on April 1, 1974. She was graduated from the academy as a patrol officer on August 9, 1974 and assigned, at her request, to the "south station." Under applicable civil service regulations plaintiff was in a probationary status for six months after August 9th during which her performance and aptitude were subject to periodic reviews.

On August 14th plaintiff and a male officer were told to report to the chief of police, the defendant Casey. In the presence of several other high ranking officers Casey told plaintiff and the male officer that he had received complaints that they were seeing each other socially and that this was a violation of regulations. Casey referred specifically to the following police department rule:

A member shall always conduct himself in accordance with the highest degree of morality which is required of the law enforcement profession. He shall not act in a manner which will reflect discredit upon himself, the Metropolitan Police Department or the Metropolitan Government.

Both parties were also advised that there was an "unwritten rule" that unmarried and married police officers of the opposite sex should not socialize together on their off-duty time. The plaintiff admitted that she and the male officer had begun seeing each other while she was still in training and had continued to do so after she learned that he was married. She stated that they were in love, "and he meant more to me than the job did even."

The following day, August 15th, plaintiff returned to the chief's office and was told that she was being terminated, effective that day. She asked if she could have the holidays and "off days" she had accrued and was told she would be paid to August 29th for this accrued time. At this interview she was told that her male friend had been suspended for ten days without pay on the same charge for which she had been discharged. Plaintiff testified she was not satisfied with this treatment and employed counsel.

Plaintiff filed a complaint with EEOC on February 18, 1974, charging that she was fired because she was a woman. The EEOC charge was timely if August 29, 1974 was the date of the "alleged unlawful employment practice," but was out of time if August 15th was the date of the controlling event. The defendant Casey signed a "change of status" form on August 15, 1974 which reflected plaintiff's dismissal on charges of conduct unbecoming a police officer. This form showed August 15th as the last day worked and August 29th as the effective date of termination and noted that plaintiff was being paid for nine days of accrued time. The compensation for accrued time was effected by carrying plaintiff on the payroll for nine working days (and two weekends) after her last day of work and paying her at the end of that period. The plaintiff received no written notice of her termination.

Both the plaintiff and EEOC, as Amicus curiae, urge us to reverse the district court and to hold that August 29th was the date of the occurrence which triggered the 180-day filing deadline. They rely principally on the decision in Moses v. Falstaff Brewing Corp., 525 F.2d 92 (8th Cir. 1975). Moses was an age discrimination case. The Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. § 621 Et seq., contains a requirement that no action may be filed in a district court unless the person who claims discrimination gives the Secretary of Labor 60 days notice of intent to file such action. This notice must be given "within one hundred and eighty days after the alleged unlawful practice occurred." 29 U.S.C. § 626(d)(1). The plaintiff Moses was advised of her discharge on November 12, 1973; her final day of work was November 16th and she was paid for accrued vacation through November 30th, the date she was "administratively terminated." Her notice to the Secretary of Labor was filed within 180 days of November 30th, but was more than 180 days after November 12th and 16th.

Citing the remedial nature and humanitarian purposes of ADEA, the court of appeals reversed the district court's dismissal of the Moses action. The court of appeals found that the 180-day language created "procedural ambiguities" which should be resolved in favor of the complaining party. The court also concluded that no goal of the ADEA would be furthered by construing the notice requirement narrowly. Finally the court held that the date of administrative termination is easily ascertainable and doubt as to the effective date would be removed by accepting the date of administrative termination shown in the records of the employer as the date of the allegedly unlawful employment practice.

The decision in Moses cannot be reconciled with Greene v. Carter Carburetor Co., 532 F.2d 125 (8th Cir. 1976). Greene was a Title VII case in which the plaintiff was discharged on February 6, 1970 and did not work after that date. He was continued on the payroll until March 3, 1970, "likely because of fringe benefits." The court held that the time for filing a charge with EEOC ran from February 6th citing its earlier en banc decision in Olson v. Rembrandt Printing Co., 511 F.2d 1228 (8th Cir. 1975). Moses is not referred to in the Greene opinion.

We think the better rule is one which seeks to determine when the alleged unlawful employment practice actually occurred rather than accepting the administrative date shown on an employee's personal or payroll records. Thus we are in agreement with the following statement in Bonham v. Dresser Industries, Inc., 569 F.2d 187, 191-92 (3d Cir. 1977), Appeal pending, 46 U.S.L.W. 3695 (June 9, 1978):

Although no simple rule can be formulated which will deal adequately with all factual situations, where unequivocal notice of termination and the employee's last day of work coincide, then the alleged unlawful act will be deemed to have occurred on that date, notwithstanding the employee's continued receipt of certain employee benefits such as periodic severance payments or extended insurance coverage. See Davis v. RJR Foods, Inc., 420 F.Supp. 930, 931 n. 1 (S.D.N.Y.1976), Aff'd without opinion, 556 F.2d 555 (2nd Cir. 1977); Doski v. M. Goldseker Co., 11 FEP Cas. 468 (D.Md.1975), Aff'd in relevant part and remanded, 539 F.2d 1326, 1328 n. 3 (4th Cir. 1976); Payne v. Crane Co., 560 F.2d 198, 199 (5th Cir. 1977) (per curiam).

We reject the rule propounded in Moses v. Falstaff Brewing Corp., 525 F.2d 92 (8th Cir. 1975), which looks exclusively to the company's official termination date as reflected in company records. Because, as in the case Sub judice, a company may use different termination dates for different purposes, the Moses rule does not adequately resolve the issue. Moreov...