Mennor v. Fort Hood Nat. Bank

• Decision Date: 16 October 1987
• Docket Number: No. 86-1595,86-1595
• Citation: 829 F.2d 553
• Parties: 45 Fair Empl.Prac.Cas. 63, 44 Empl. Prac. Dec. P 37,551 Michael E. MENNOR, Plaintiff-Appellee, v. The FORT HOOD NATIONAL BANK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 553

829 F.2d 553

45 Fair Empl.Prac.Cas. 63, 44 Empl. Prac.

Dec. P 37,551

Michael E. MENNOR, Plaintiff-Appellee, v. The FORT HOOD NATIONAL BANK, Defendant-Appellant.

No. 86-1595.

United States Court of Appeals Fifth Circuit.

Oct. 16, 1987.

Carolyn Barefield Luedke, A.J. Harper, II and Peter Bennett, Houston, Tex., for defendant-appellant.

Jon R. Ker, Hewitt, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before GEE, JOHNSON, and HILL, Circuit Judges.

JOHNSON, Circuit Judge:

The defendant Fort Hood National Bank appeals from an adverse judgment in this Title VII case. The plaintiff Michael E Mennor filed his charge with the Equal Employment Opportunity Commission within the 300-day filing period of 42 U.S.C. Sec. 2000e-5(e). The 300-day filing period is available for cases in which state or local agency proceedings have been instituted. This appeal principally presents the question whether this 300-day period applies whether or not these other proceedings are timely instituted under state or local law. We hold that the 300-day filing period applies regardless and affirm the district court's judgment.

I. Facts and Procedural History

Plaintiff Michael E. Mennor's employment with the defendant Fort Hood National Bank came to an end on June 23, 1983. Mennor spoke by telephone about the matter to the Dallas office of the Equal Employment Opportunity Commission (EEOC) and then pursuant to the EEOC's instructions addressed a letter dated August 10, 1983, to that office. In the letter, Mennor charged that the Bank had terminated Mennor's employment in retaliation for Mennor's opposition to the Bank's discriminatory treatment of Hispanic employees. The EEOC eventually responded by sending Mennor a questionnaire. Shortly after his receipt, Mennor returned the completed questionnaire on February 10, 1984. The EEOC then prepared a charge of employment discrimination for Mennor. He signed this charge and returned it to the EEOC, which received the charge on March 29, 1984. The following day, March 30, 1984, the EEOC transmitted the charge to the Texas Commission on Human Rights. On April 8, 1984, however, the EEOC issued a notice stating that the Texas Commission on Human Rights had waived its jurisdiction and that the EEOC would therefore process Mennor's charge. In due time, Mennor received a right-to-sue letter from the EEOC and then filed the present suit in federal district court.

In his complaint, Mennor asserted a claim under Title VII of the Civil Rights Act of 1964, Pub.L. No. 88-352, 78 Stat. 241 (as amended), as well as other claims. The district court dismissed Mennor's other claims. Thereafter, following a bench trial, the district court found in Mennor's favor on the Title VII claim. In its judgment, the district court awarded back pay, an attorney's fee, and costs. The Bank appeals.

II. Discussion

A.

Title VII provides that an unlawful employment practice charge shall be filed with the EEOC

within one hundred and eighty days after the alleged unlawful employment practice occurred ..., except that in a case of an unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings with a State or local agency with authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, such charge shall be filed by or on behalf of the person aggrieved within three hundred 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. ¹

When the unlawful termination of Mennor's employment occurred on June 23, 1983, there was no state or local agency with authority to grant or seek relief from the practice under which Mennor had suffered. Thus, Mennor had 180 days to file his charge with the EEOC. Shortly after the June 23 termination, however, Texas created the Texas Commission on Human Rights (TCHR). ² The Texas act creating the TCHR was effective September 23, 1983. ³ The parties and the district court agree that the TCHR qualified as an agency with authority to grant or seek relief from the unlawful employment practice under which Mennor had suffered. Thus, once the TCHR had come into existence, Mennor could qualify for the 300-day period instead of the 180-day period by instituting proceedings with that state agency. The EEOC did transmit Mennor's March 29 charge to the TCHR on March 30, 1984, and the parties and the district court have treated this transmittal as the institution of proceedings with the TCHR within the meaning of 42 U.S.C. Sec. 2000e-5(e). ⁴ Shortly after the March 30 institution of TCHR proceedings, the EEOC issued its notice stating that the TCHR had waived its jurisdiction and that the EEOC would process Mennor's charge. The waiver of jurisdiction terminated the TCHR proceedings, and the EEOC apparently treated Mennor's charge as thereafter automatically filed with the EEOC. ⁵ This automatic filing took place at the latest on April 8, 1984, when the EEOC issued its notice. Finally, the April 8 filing was "within three hundred days after" ⁶ the termination of Mennor's employment on June 23, 1983. ⁷

Before the district court, the defendant Bank resisted the above timeliness analysis by moving to dismiss the Title VII claim on the singular ground that Mennor's March 30 institution of TCHR proceedings was untimely under state law. ⁸ The Bank contended that the 300-day period of 42 U.S.C. Sec. 2000e-5(e) was available only when the institution of state or local proceedings is timely under state or local law. The district court rejected the contention, and the Bank now renews it before this Court.

Mennor opposes the Bank's contention first by arguing in favor of the district court's ruling and second by arguing that his August 10 letter to the EEOC constituted a filing within the 180-day period of 42 U.S.C. Sec. 2000e-5(e), even without resort to that subsection's 300-day period. Moreover, this asserted August filing took place before the creation of the TCHR and thus before any duty to file with the state agency came into being. ⁹ We do not reach Mennor's second argument concerning the August 11 letter because we uphold the district court's ruling and now formally adopt for this Circuit the rule of a growing number ¹⁰ of circuits: The 300-day filing period of 42 U.S.C. Sec. 2000-5(e) for cases in which state or local agency proceedings have been instituted applies whether or not these other proceedings are timely instituted under state or local law. ¹¹

B.

The Bank also makes a diffuse challenge to the district court's allowance of certain costs, specifically its allowance of costs for general copying ($104.00), taking depositions ($1,153.15), attorney postage ($17.62), attorney long distance telephone use ($73.33), and attorney mileage ($256.25). The Bank makes no challenge to the district court's allowance of an attorney's fee. ¹² Review of an allowance of costs is narrow. ¹³ The appellate court may test the district court's discretionary power to allow certain costs. ¹⁴ An allowance of costs within that power is reviewable only for abuse of discretion. ¹⁵

Section 1920 of Title 28 authorizes the district court to tax as costs certain enumerated expenses. Federal Rule of Civil Procedure 54(d) in turn provides that "costs shall be allowed as of course to the prevailing party unless the court otherwise directs." The Supreme Court has held that section "1920 defines the term 'costs' as used in Rule 54(d)." ¹⁶ This Court has determined that the costs of general copying ¹⁷ and taking depositions ¹⁸ are among the expenses enumerated in 28 U.S.C. Sec. 1920.

The remaining costs at issue here, sometimes called an attorney's out-of-pocket costs, are apparently not included in the enumeration of 28 U.S.C. Sec. 1920. ¹⁹ In the present case, however, section 1920 was not the sole source of the district court's power to allow costs. Also available to the court was the power supplied by 42 U.S.C. Sec. 2000e-5(k) to allow costs. The court clearly exercised this supplemental power to allow an attorney's fee as costs. The general language ²⁰ in a statute such as 42 U.S.C. Sec. 2000e-5(k) may not be interpreted to authorize what is disallowed by the specific language of 28 U.S.C. Sec. 1920. ²¹ As noted, however, section 1920 does not regulate out-of-pocket attorney costs. On the other hand, section 2000e-5(k) has been interpreted to include the power " 'to award those reasonable out-of-pocket expenses incurred by the attorney which are normally charged to a fee-paying client, in the course of providing legal services.' " ²² The district court therefore had the discretionary power to allow the costs at issue here.

In exercising that power, the district court made an express finding of fact ²³ that the costs were "reasonable and necessary and related only to the successful prosecution of Plaintiff's Title VII suit." There is support in the record for this finding. The Bank has not shown an abuse or clear abuse of discretion.

C.

Finally, the Bank challenges certain district court findings of fact on the merits of Mennor's Title VII claim. Suffice it to say that there is adequate support in the record to uphold these findings under the clear error standard. ²⁴

III. Conclusion

We uphold the district court's ruling on the timeliness under 42 U.S.C. Sec. 2000e-5(e) of Mennor's filing with the EEOC, the court's allowance of costs, and its findings of fact. The judgment of the district court is therefore

AFFIRMED.

GEE, Circuit Judge, concurring:

I concur in the Court's opinion and judgment, although--were I writing upon a clean slate--I would not. Chief Judge Roney, of the Eleventh Circuit, expresses my views exactly:

The district court noted that because...