Love v. Pullman Company, No. 209-69

• Decision Date: 30 July 1970
• Docket Number: 226-69.,No. 209-69
• Citation: 430 F.2d 49
• Parties: Earl A. LOVE, Plaintiff-Appellant, v. The PULLMAN COMPANY, an Illinois corporation, Defendant-Appellee, and United States of America, and Equal Employment Opportunity Commission, Intervenors. The PULLMAN COMPANY, an Illinois Corporation, Defendant-Cross Appellant, v. Earl A. LOVE, Plaintiff-Cross Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

430 F.2d 49 (1970)

Earl A. LOVE, Plaintiff-Appellant, v. The PULLMAN COMPANY, an Illinois corporation, Defendant-Appellee, and United States of America, and Equal Employment Opportunity Commission, Intervenors.

The PULLMAN COMPANY, an Illinois Corporation, Defendant-Cross Appellant, v. Earl A. LOVE, Plaintiff-Cross Appellee.

Nos. 209-69, 226-69.

United States Court of Appeals Tenth Circuit.

September 22, 1969.

On Rehearing July 30, 1970.

Hugh J. McClearn, Denver, Colo. (Frederick Miles and Van Cise, Freeman, Tooley & McClearn, Denver, Colo., with him on the briefs), for appellant and cross-appellee.

Edward C. Eppich, Denver, Colo., (Neef, Swanson, & Myer, Denver, Colo., with him on the brief), for appellee and cross-appellant, The Pullman Co.

Benjamin W. Mintz, Atty., Dept. of Justice, Washington, D. C. (Stephen P. Passek, Atty., Dept. of Justice, Washington, D. C., and James L. Treece, U. S. Atty., with him on the brief), for intervenor, the United States.

Russell Specter, Acting Gen. Counsel, Washington, D. C. (Marian Halley, Washington, D. C., Atty., with him on the brief), for intervenor, Equal Employment Opportunity Commission.

Before FAHY, Senior Circuit Judge^*, and LEWIS and SETH, Circuit Judges.

On Rehearing in No. 209-69 July 30, 1970.

SETH, Circuit Judge.

Appellant brought suit pursuant to 42 U.S.C.A. § 2000e-5(f), a portion of Title VII of the Civil Rights Act of 1964, alleging that he was discriminated against in employment because he was a Negro. The appellee moved to dismiss the complaint on the ground that the charge was not timely filed with the Equal Employment Opportunity Commission and that appellant's cause of action was moot. The trial court treated appellee's motion as a motion for summary judgment, and granted it. This appeal was then taken. The Equal Employment Opportunity Commission has filed a brief as amicus curiae.

Appellant was employed by the appellee for more than forty years as a Pullman porter. He resigned from this position in November 1968. In 1951 the appellant was classified and began to perform the duties of a "porter in charge." Appellant states that the duties of a porter in charge are for all purposes identical to those of a Pullman conductor, and that porters in charge must at all times be available to work as such a conductor. Porters in charge however receive substantially lower wages than do conductors.

In his suit, appellant asserts that he has been restricted to the classification of porter in charge because of his race and that the classification of conductor is primarily an all-white classification from which Negroes were excluded.

The trial court found that in 1963 the appellant filed a written charge of discrimination with the Colorado Civil Rights Commission and that in 1965 he orally restated his complaint to that same commission. The court found also that this oral statement did not literally comply with the Colorado statute governing the same, but it was substantial compliance. The court found that the appellant's case was thereby reopened in 1965, but the commission was unable to reach an arrangement with The Pullman Company that was satisfactory to the appellant. The company advised the commission they would promote the appellant to conductor, but by reason of the union contracts he would be very low in seniority as a conductor and that he would probably be laid off. The commission so advised the appellant by letter. This was found by the trial court to have terminated the proceedings on appellant's complaint in July 1965.

Thereafter, on May 23, 1966, appellant sent a letter complaint to the Equal Employment Opportunity Commission (EEOC) in Washington making the same complaint that he had to the Colorado commission. When the EEOC received appellant's letter it, in some way undisclosed in the record, informed the Colorado commission that it had received a charge of discrimination which appeared to be within the jurisdiction of the Colorado commission. By letter of June 1, 1966, the Colorado commission advised the EEOC that in light of its prior contacts with the appellant and his failure to return to file a complaint, the commission would not "accept" the sixty day deferment period, waived it, and asked the EEOC to proceed.

The EEOC then served a copy of the charge on the appellee and began an investigation. A charge on an EEOC form signed by appellant dated July 23, 1966, also appears in the record, and we assume this supplemented his original letter of May 23, 1966.

A "Final Investigative Report" by a Regional Director of the EEOC found no violation of Title VII. He instead found that the Sleeping Car Porters Union and The Pullman Company were in violation of the Act by reason of their union contract. He recommended that a commissioner's charge be brought on this basis. The commission thereafter found otherwise and issued its Decision that there was instead reasonable cause to believe that there was discrimination. On May 3, 1968, the EEOC notified the appellant that it had been unable to secure the appellee's voluntary compliance with Title VII and that the appellant had thirty days in which to bring suit.

The appellant then duly filed a complaint and later an amended complaint on behalf of himself and of all persons similarly situated who had suffered from the appellee's alleged discriminatory employment practice. The appellant also prayed that appellee be enjoined from classifying its employees on the basis of race and sought back pay for himself and for the class of persons situated as himself in the amount of the difference between the wages they had earned and what they would have earned but for appellee's discrimination.

The trial court in granting summary judgment in favor of the appellee ruled that since the Colorado Civil Rights Commission had terminated its proceedings on appellant's complaint on July 30, 1965, and inasmuch as appellant did not file his charge with the EEOC until May 23, 1966, or more than thirty days after termination, appellant had failed to comply with section 706(d) 42 U.S.C.A. § 2000e-5(d).

The trial court also ruled that since the appellant had resigned from employment with the appellee in November 1968, his request for injunctive relief was moot.

We must affirm the trial court on the timeliness of filing issue, and to thereby give effect to the time limits expressed in the statute.

It is clear that the Colorado Civil Rights Commission acts under a Colorado statute prohibiting the employment practice alleged and establishing state authority to grant or seek relief all as contemplated in section 706(d) of the 1964 Civil Rights Act 42 U.S.C.A. § 2000e-5. Since the Colorado statute and the State commission so come within the terms of section 706(b) of the Act, no charge can be filed with the EEOC under section 706 (a) until after the expiration of sixty days after proceedings are commenced in the State, unless the State proceedings terminate within such time. Further the Act in section 706(d) 42 U.S. C.A. § 2000e-5(d) provides that filing with the EEOC must be made under these circumstances within two hundred ten days after the alleged unlawful employment practice occurred, "or within thirty days after receiving notice that the State or local agency has terminated the proceedings under the State or local law, whichever is earlier, * * *."

The trial court found, and the record shows, that the Colorado commission terminated its proceedings on plaintiff's complaint on July 30, 1965, and so notified him. We also agree that this second period of consideration was an effective reopening of prior proceedings on the same complaint. Thus if appellant had filed his complaint with the EEOC within thirty days thereafter there would be no question as to its authority to act on such a complaint. Appellant did not do so but waited until some time later and mailed a letter of complaint to the EEOC.

The appellant, and the EEOC as amicus curiae, argue here that this letter to the EEOC started a new chain of events, and they ignore the prior failure by appellant to comply with the time requirements. The EEOC, to sustain this position, urges that upon receipt of a complaint letter directly from an individual as the appellant here, it may hold it in some sort of suspense and "advise" the State commission concerned. Then at the end of the period the State has to consider complaints (sixty days) the commission can then automatically "assume jurisdiction," as if the complaint had been made directly to the State agency and, thereafter within the time limit, filed with the commission.

As indicated above, we must affirm the trial court in its holding that the time limit was ignored as to the complaint appellant himself filed with the Colorado commission. We also hold that the device used by the EEOC to start a new time sequence was ineffective to do so. Under the Act, when the appellant's letter to the EEOC was received it was thereby filed as the filing date cannot be manipulated by the commission. Its own regulations state "* * * a charge is deemed filed when the Commission receives from the person aggrieved a written statement sufficiently precise to identify the parties and to describe generally the action or practices complained of." The charge was apparently definite enough for the EEOC to advise the Colorado commission although the record does not show how this was done. The EEOC in its brief also states: "It is established beyond question that a charge, originally in the form of a letter, may later be reduced to proper form, and that the later official charge will relate back to the date of the letter." Thus the charge here concerned was filed when received, and at that time the EEOC had no authority over the matter because it had then not yet been presented to the Colorado commission.

In International Bhd. of Elec. Workers, Local Union No. 5 v. United States Equal Employment Opportunity Comm., 398 F.2d 248,...