Leake v. University of Cincinnati

Decision Date10 October 1979
Docket NumberNo. 76-2430,76-2430
Citation605 F.2d 255
Parties20 Fair Empl.Prac.Cas. 964, 20 Empl. Prac. Dec. P 30,249 Jane Acomb LEAKE, Plaintiff-Appellant, v. UNIVERSITY OF CINCINNATI et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Sixth Circuit

Charles E. Guerrier, Barbara Kaye Besser, Jane M. Picker, Cleveland, Ohio, for plaintiff-appellant.

Abner W. Sibal, Beatrice Rosenberg, E. E. O. C., Washington, D.C., for amicus curiae E. E. O. C.

S. Arthur Spiegel, Cohen, Todd, Kite & Spiegel, Paul Nemann, Cincinnati, Ohio, for defendants-appellees.

Before CELEBREZZE, LIVELY and KEITH, Circuit Judges.

KEITH, Circuit Judge.

Plaintiff, a history professor at Raymond Walters General and Technical College of the University of Cincinnati appeals from a judgment of the district court dismissing her sex discrimination complaint. The district court held that her claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e Et seq., was untimely, 1 and that her claim under Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 Et seq., must fail because Title IX does not create a private right of action. 2 We reverse.

Plaintiff, head of the History, Philosophy and Political Science Department of Raymond Walters General Technical College (hereinafter College), has been employed by the University of Cincinnati (hereinafter University) since 1961. She was a visiting professor at the main campus of the University from 1965 to 1969, at which time she was hired as an associate professor at the College where she was elected head of the History Department in 1970. For some time, plaintiff had indicated an interest in obtaining an appointment to the regular staff of the History Department at the main campus of the University. 3

During the academic year 1971-1972, Professor Park, an assistant professor of history at the University's main campus, was on leave of absence and the University sought a one-year replacement for him. Plaintiff did not apply for this position as she desired a regular appointment rather than a temporary one-year appointment. Guido Ruggiero was hired by the University to fill the one-year vacancy. However, in the winter of 1972, Professor Park's leave was extended for another year, and the University again sought a person to fill the new temporary opening. Twenty persons responded to the University's publicity concerning the new opening, but the search committee only interviewed Professor Ruggiero and recommended his appointment to the second one-year opening. In March of 1972, the Department of History, however, recommended that Professor Ruggiero be given a regular two-year appointment rather than the one-year temporary position. This appointment was made following certain budget modifications and without additional publicity regarding the opening for the regular position.

During the summer of 1972, plaintiff became aware that a regular appointment in medieval history might be made at the main campus and on August 7, 1972, she wrote to Professor Aeschbacher, head of the History Department at the main campus, to inquire about the job. Professor Aeschbacher responded to plaintiff's letter in September, 1972, indicating that no opening existed in medieval history but that should an opening occur, he would inform her of it and consider her application.

On October 3, 1972, the Board of Directors of the University approved Professor Ruggiero's regular appointment. Upon learning of this appointment, plaintiff contacted Professor Aeschbacher seeking an explanation. Professor Aeschbacher replied on November 15, 1972, that at the time he responded to plaintiff's letter in September, he was of the opinion that no vacancy existed in the History Department because Professor Ruggiero's appointment had been recommended by the Department the previous March.

Plaintiff thereupon retained counsel. Following conversations between plaintiff's counsel and counsel for the University, the University's counsel wrote to plaintiff's counsel on December 27, 1972, as follows:

This letter is to confirm our telephone conversation in which I informed you that this matter has just recently been referred to my desk for consideration. Please understand that while your client's complaints have no doubt taken quite some time to fruit, the matter is a novelty to me and I will need to start at the beginning. University vacation schedules will require that I take a week or two to respond.

It is my understanding that you will give me sufficient time to research the matter in return for the assurance I gave you on the phone that time for my investigation will not be used by the University to in any way prejudice your client's rights with regard to any statute of limitations.

It was not until February 9, 1973, that the University's counsel rejected plaintiff's claim of discrimination. Plaintiff's charge was filed with the EEOC on April 17, 1973.

The district court found that the alleged act of discrimination occurred on October 3, 1972, at the latest, when the University's Board of Trustees approved Professor Ruggiero's appointment to the regular staff. Since plaintiff did not file her charges with the EEOC until April 17, 1973, more than 180 days after the alleged discriminatory act, the district court concluded that plaintiff's claim was time-barred under 42 U.S.C. § 2000e-5(e). 4 Acting in reliance upon this Court's decision in Guy v. Robbins & Myers, Inc., 525 F.2d 124 (6th Cir. 1975), Rev'd sub nom. International Union of Electrical, Radio and Machine Workers, AFL-CIO, Local 790 v. Robbins & Myers, Inc., 429 U.S. 229, 97 S.Ct. 441, 50 L.Ed.2d 427 (1976), the district court rejected plaintiff's argument that the 180-day limit was tolled during the time that she engaged in private, voluntary negotiations with the University on the University's assurance that it would not assert a time-bar claim against her. The district court also rejected plaintiff's argument that the alleged violation was a continuing one and that the 180-day time period, therefore does not apply. Instead, the court found that the alleged violation was an isolated transaction.

On appeal, plaintiff alleges that her Title VII claims should not have been dismissed for failure to file her charges with the EEOC within 180 days of October 3, 1972, 5 because negotiations between plaintiff and the University and the affirmative conduct of defendant as set forth in the University counsel's letter previously quoted tolled the time period within which plaintiff was required to file charges. We agree.

Title VII was enacted to assure equal employment opportunities by eliminating discrimination based on race, color, religion, sex, or national origin. Johnson v. Railway Express Agency, 421 U.S. 454, 457, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975); Alexander v. Gardner-Denver Co., 415 U.S. 36, 44, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974). In Electrical Workers, the Supreme Court noted that equitable tolling principles did not apply where a plaintiff engages in grievance proceedings pursuant to a collective bargaining agreement. The Court noted however, that unlike Burnett v. New York Central Railroad Co., 380 U.S. 424, 85 S.Ct. 1050, 13 L.Ed.2d 941 (1965), plaintiff had not been prevented from asserting her rights. 429 U.S. 237, n. 10, 97 S.Ct. 441 and accompanying text. This result is consistent with the Supreme Court's prior holding in Johnson v. Railway Express Agency, Inc.,421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975), where the Court addressed the issue of whether the timely filing of charges with the EEOC tolls the statute of limitations in suits based upon the same facts brought pursuant to42 U.S.C. § 1981.

Plaintiff did not bring her dispute to the University's attention pursuant to a collective bargaining agreement. Moreover, the correspondence between plaintiff and the University clearly put the University on notice that plaintiff was asserting rights pursuant to Title VII and provided the University with the protections which limitation periods are intended to provide. Johnson v. Railway Express Co., Inc., 421 U.S. at 466-67, n. 12-14, 97 S.Ct. 441; Burnett v. New York Central Railway Co., supra; Tipler v. E. I. DuPont DeNemours & Co., 443 F.2d 125 (6th Cir. 1971). See also, Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 372-373, 97 S.Ct. 2447, 53 L.Ed.2d 402 (1977); United Airlines, Inc. v. McDonald, 432 U.S. 385, 394-395, 97 S.Ct. 2464, 53 L.Ed.2d 423 (1977). It was during the period of voluntary negotiations that plaintiff and the University agreed that she would give the University sufficient time to investigate her complaints, and the University agreed that it would not use the time it spent in its investigation to prejudice plaintiff with respect to any statute of limitations. It appears to us that the University's express statements, and plaintiff's reliance thereon, could reasonably have led plaintiff to delay in the filing of her charges with the EEOC.

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