McArthur v. Southern Airways, Inc.

• Decision Date: 09 March 1978
• Docket Number: No. 75-3933,75-3933
• Citation: 569 F.2d 276
• Parties: 17 Fair Empl.Prac.Cas. 12, 16 Empl. Prac. Dec. P 8296 Patricia C. McARTHUR et al., Plaintiffs, Fay Mathews Eubanks et al., for themselves and all other female employees similarly situated, Plaintiffs-Appellants Cross Appellees, v. SOUTHERN AIRWAYS, INC., et al., Defendants-Appellees Cross Appellants, and Myra Blackburn et al., Intervenors-Co-Defendants-Appellees Cross Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 276

569 F.2d 276

17 Fair Empl.Prac.Cas. 12, 16 Empl. Prac.

Dec. P 8296

Patricia C. McARTHUR et al., Plaintiffs,

Fay Mathews Eubanks et al., for themselves and all other

female employees similarly situated, Plaintiffs-Appellants Cross Appellees, v. SOUTHERN AIRWAYS, INC., et al., Defendants-Appellees Cross Appellants, and Myra Blackburn et al., Intervenors-Co-Defendants-Appellees

Cross Appellants.

No. 75-3933.

United States Court of Appeals,

Fifth Circuit.

March 9, 1978.

J. R. Goldthwaite, Jr., Atlanta, Ga., for plaintiffs.

Vella M. Fink, EEOC, Washington, D. C., for amicus curiae.

John B. Shepard, Erle Phillips, Atlanta, Ga., for Southern Airways.

Duane C. Aldrich, Richard R. Boisseau, Atlanta, Ga., for Blackburn, et al.

Asher W. Schwartz, John F. O'Donnell, Renee F. Rivkis, Malcolm A. Goldstein, New York City, for Transport Workers Union.

Appeals from the United States District Court for the Northern District of Georgia.

Before BROWN, Chief Judge, and COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, MORGAN, CLARK, RONEY, GEE, TJOFLAT, FAY, RUBIN, and VANCE, Circuit Judges. ^*

PER CURIAM:

The opinion of the panel, 5 Cir., 556 F.2d 298, is withdrawn in its entirety. That opinion is vacated so as to leave open in this circuit all issues decided there.

This Title VII case is controlled by United Air Lines v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977), decided subsequent to the appeal in this cause. The district court decision in Evans, which was reinstated by the decision of the Supreme Court, dismissed Ms. Evans' complaint on the ground that it had no jurisdiction of her time-barred claim. ¹

The Evans Court concluded:

A discriminatory act which is not made the basis for a timely charge is the legal equivalent of a discriminatory act which occurred before the statute was passed. It may constitute relevant background evidence in a proceeding in which the status of a current practice is at issue, but separately considered, it is merely an unfortunate event in history which has no present legal consequences.

Since no plaintiff in this cause made a timely filing with the Equal Employment Opportunity Commission (EEOC), ² the district court should have dismissed this cause for lack of jurisdiction. Plaintiffs sought to excuse their belated agency action by claiming that the discriminatory practices here were continuing wrongs which extended the time for filing. Evans also rejected this theory under precisely similar facts.

In the present appeal, plaintiffs concede Evans completely controls the present case, ³ but urge that we deny retroactive effect to this precedent on the equitable ground that they changed jobs and moved their homes in reliance on the district court's action. Neither does equity compel nor law permit such a result. This decision of the district court was duly appealed and has been at all times subject to appellate revision. Under these facts, we are legally bound to apply the law as it is given at the time we adjudicate. Thorpe v. Housing Authority of City of Durham, 393 U.S. 268, 89 S.Ct. 518, 21 L.Ed.2d 474 (1969); United States v. Hinds County School Board, 560 F.2d 619 (5th Cir. 1977).

The judgment of the district court is vacated and the appeal is dismissed.

ALVIN B. RUBIN, Circuit Judge, with whom VANCE, Circuit Judge, joins, dissenting:

Insofar as the majority opinion holds that the consent decree must be vacated because the trial court lacked jurisdiction of this case, and that this court now lacks jurisdiction over any appeal from its action, I must respectfully dissent.

United Air Lines, Inc. v. Evans, 1977, 431 U.S. 553, 556, 97 S.Ct. 1885, 1888, 52 L.Ed.2d 571, decided two years after the district court acted in this matter, held that the failure to file a charge with the EEOC within the time prescribed by the statute "foreclosed any relief under Title VII." ¹ The dismissal in Evans was for failure to show compliance with the statute; it was, therefore, a dismissal for lack of legal merit in the claim. This was noted in the dissent in Evans, 431 U.S. at 561, 97 S.Ct. at 1890, 52 L.Ed.2d at 580, note 1, "Although the district court dismissed (the claim) for lack of jurisdiction . . . , the basis for his ruling was that the complaint was time barred. Thus, the dismissal closely resembles a dismissal for failure to state a claim upon which relief can be granted . . . ." See also, International Union of Elec. Workers v. Robbins & Myers, Inc., 1976, 429 U.S. 229, 97 S.Ct. 441, 50 L.Ed.2d 427.

Here, however, the majority dismisses the suit for lack of jurisdiction on the thesis that, if the EEOC complaint in this case was not timely filed (a conclusion that was not certain at the time the district court acted but is now established as a result of the Evans decision), the district court lacked jurisdiction of the case from the beginning. Because I do not read either Evans or the statute as making timely filing with the EEOC a jurisdictional prerequisite to court action, but merely a bar to successful litigation, I respectfully dissent.

Courts, including this one, have said repeatedly that timely filing with the EEOC is a "jurisdictional" prerequisite to a Title VII action, see, e. g., Cutliff v. Greyhound Lines, Inc., 5 Cir. 1977, 558 F.2d 803, 806; compare Pacheco v. Phelps Dodge Refining Corp., 5 Cir. 1976, 531 F.2d 709; East v. Romine, Inc., 5 Cir. 1975, 518 F.2d 332, 336; Belt v. Johnson Motor Lines, Inc., 5 Cir. 1972, 458 F.2d 443, 445, note 3; Boudreaux v. Baton Rouge Marine Contracting Co., 5 Cir. 1971, 437 F.2d 1011, 1014-1015, note 6; Culpepper v. Reynolds Metals Co., 5 Cir. 1970, 421 F.2d 888. What they mean by using the term "jurisdictional" is not clear, but it does not appear that, absent timely filing, a federal district court lacks jurisdiction of the subject matter of such a suit. Certainly, timely compliance with the conditions to legal action set forth in the Act is indispensable. This is clear not only from the express language of Section 2000e-5, but is a logical conclusion from the expressed legislative favor for voluntary conciliation. ² Compare Beverly v. Lone Star Lead Const. Corp., 5 Cir. 1971, 437 F.2d 1136, with Mickel v. South Carolina State Employment Service, 4 Cir. 1967, 377 F.2d 239, cert. denied, 389 U.S. 877, 88 S.Ct. 177, 19 L.Ed.2d 166.

Thus, a claim that is not timely filed is subject to dismissal either on the ground that the plaintiff has not stated a claim for which relief could be granted, or, if the facts do not appear on the face of the pleadings, on motion for summary judgment. But these are dismissals because the claim has no merit, not because the court lacks subject matter jurisdiction.

The jurisdictional portion of the statute ³ is not qualified. It contains no provision withdrawing jurisdiction with respect to claims that are either not timely filed or are without merit for some other reason. ⁴ When it has considered other statutes, the Supreme Court has held that a claim's lack of merit (because it does not meet statutory prerequisites) does not imply a lack of jurisdiction in the court to consider and reject it. Romero v. International Terminal Operating Co., 1959, 358 U.S. 354, 359, 79 S.Ct. 468, 473, 3 L.Ed.2d 368; Lauritzen v. Larsen, 1953, 345 U.S. 571, 574, 73 S.Ct. 921, 924, 97 L.Ed.2d 1254. See, EEOC v. L. & N. R. Co., 5 Cir. 1974, 505 F.2d 610, cert. denied, 1975, 423 U.S. 824, 96 S.Ct. 39, 46 L.Ed.2d 41, where this court held the 180 day period provided for suits by the EEOC, 42 U.S.C. § 2000e-5(f) (1) is not a jurisdictional limitation. That same result should be reached here.

Indeed, this court has recognized:

(The filing requirement in Title VII) is not 'jurisdictional' in the sense that compliance with it vel non determines the jurisdiction of the district court, without respect to any other circumstances in a particular case. We accept the view that the requirement should be analogized to statutes of limitation. Equitable modifications, such as tolling and estoppel, should also be applied here.

(I)t is clear that the Supreme Court and this court have not treated time limitations contained in Title VII as inflexible 'jurisdictional' absolutes, but have modified them in the interest of giving effect to the broad remedial purposes of the Act.

Reeb v. Economic Opportunity Atlanta, Inc., 5 Cir. 1975, 516 F.2d 924, at 928-929. ⁵

Although this court has characterized the requirement as "jurisdictional" subsequent to Reeb, it has done so only after noting no circumstances that would justify modifying or waiving the requirement; hence, the complaint in those cases would have been dismissed regardless whether the filing requirement was characterized as jurisdictional or as a condition of bringing suit. Cutliff v. Greyhound Lines, Inc., 5 Cir. 1977, 558 F.2d 803, 805 ("conditions precedent or jurisdictional prerequisites"). Pacheco v. Phelps Dodge Refining Corp., 5 Cir. 1976, 531 F.2d 709; East v. Romine, Inc., 5 Cir. 1975, 518 F.2d 332, 336. See also, Eastland v. Tennessee Valley Authority, 5 Cir. 1977, 553 F.2d 364, 368, cert. denied, 1977, --- U.S. ----, 98 S.Ct. 611, 54 L.Ed.2d 479. Reeb has been followed by at least one other circuit court. See Dartt v. Shell Oil Co., 10 Cir. 1976, 539 F.2d 1256, aff'd per curiam, 1977, --- U.S. ----, 98 S.Ct. 600, 54 L.Ed.2d 472.

The thesis that timely filing is a prerequisite to subject matter jurisdiction is inconsistent with the rulings of the Supreme Court in other Title VII class actions, and, also, with its views concerning jurisdictional requirements in other kinds of class actions. Thus, timely filing by one member of a Title VII class makes eligible for consideration the claims of those class members who did not themselves file claims. Franks v. Bowman Transp. Co., Inc., 1976, 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d 444; U. S. v. Georgia Power Co., 5 Cir. 1973, 474 F.2d 906, 925; compare, Inda v. United Air Lines, Inc., 9 Cir. 1977, 565 F.2d 554, 559...