Mixson v. Southern Bell Telephone & Telegraph Co.

• Decision Date: 01 December 1971
• Docket Number: Civ. A. No. 11443.
• Citation: 334 F. Supp. 525
• Parties: Mrs. Lois MIXSON v. SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY et al.
• Court: U.S. District Court — Northern District of Georgia

334 F. Supp. 525

Mrs. Lois MIXSON v. SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY et al.

Civ. A. No. 11443.

United States District Court, N. D. Georgia, Atlanta Division.

December 1, 1971.

Beryl H. Weiner, Rick S. Sexton, Rose M. Higby, Atlanta, Ga., for plaintiff.

Kilpatrick, Cody, Rogers, McClatchey & Regenstein, Atlanta, Ga., for defendants.

ORDER

EDENFIELD, District Judge.

Plaintiff in this Title VII case alleges that defendants have maintained an employment practice which violates the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a) (1970). More specifically, she says that defendants have denied her an annuity benefit on the basis of provisions in their pension plan which discriminate against her spouse and male employees as a class because of their sex. She claims that defendants denied her the annuity because they said her husband, who was employed by defendant Southern Bell when he died, was 59 years and 10 months old when he died and had not reached retirement age which is fixed under the pension plan at 60 years for males and 55 years for females. The matter is now before the court on:

(1) Defendants' motion to dismiss the complaint for lack of subject matter jurisdiction and failure to state a claim upon which relief could be granted;

(2) Plaintiff's motion to compel answers to interrogatories and motion for an award of expenses incurred in securing an order compelling such answers; and

(3) Defendants' motion for a protective order deferring their obligation to answer interrogatories, to which they have raised objections, pending the outcome of their motion to dismiss.

Defendants' motion to dismiss the complaint for lack of subject matter jurisdiction is based, first, on the proposition that plaintiff did not file her complaint with the Equal Employment Opportunity Commission "EEOC" within 90 days after the alleged unlawful employment practice occurred, as required by 42 U.S.C. § 2000e-5(d). They argue that the requirement of filing with the EEOC within 90 days after the occurrence of the alleged unlawful practice is a jurisdictional prerequisite to the maintenance of a civil suit in a federal district court under Title VII. They say that the employment practice which plaintiff claims is unlawful could have occurred only during the lifetime of her husband, which ended June 29, 1966. Since plaintiff did not file with the EEOC until March 20, 1968, defendants contend that a civil suit cannot be maintained in this court under 42 U.S.C. § 2000e-5(e) and (f).

A number of district courts have held that the filing of a charge with the EEOC specifically within 90 days after the occurrence of the alleged unlawful employment practice is a jurisdictional prerequisite to the maintenance of a civil suit in a federal district court under Title VII. McCarty v. Boeing Co., 321 F.Supp. 260 (W.D.Wash.1970); Tippett v. Liggett & Myers Tobacco Co., 316 F. Supp. 292 (M.D.N.C.1970); Sciaraffa v. Oxford Paper Co., 310 F.Supp. 891 (D. Me.1970); Banks v. Local Union 136, Intl. Bro. of Electrical Wk'rs, 296 F. Supp. 1188 (N.D.Ala.1968). The Fifth Circuit has not yet explicitly endorsed this position and has, in fact, cast some doubt upon its correctness. Boudreaux v. Baton Rouge Marine Contracting Co., 437 F.2d 1011, 1014-1015, n. 6 (5th Cir. 1971).

But even if the 90-day filing requirement is a jurisdictional prerequisite, it does not automatically apply in every case. For example, if an employee chooses to invoke his contractual grievance remedies immediately after the occurrence of the alleged unlawful employment practice and the grievance procedures take longer than 90 days, the limitations period for filing with the EEOC is tolled and a federal district court has jurisdiction over a subsequent civil suit. Hutchings v. United States Industries, Inc., 428 F.2d 303 (5th Cir. 1970); Culpepper v. Reynolds Metals Co., 421 F.2d 888 (5th Cir. 1970). Again, and more pertinent for present purposes, if the alleged unlawful employment practice is continuous in nature, the 90-day limitations period for filing with the EEOC does not apply since there is no single date after which the period might begin to run. Cox v. United States Gypsum Co., 409 F.2d 289 (7th Cir. 1969); Tippett v. Liggett & Myers Tobacco Co., supra; Sciaraffa v. Oxford Paper Co., supra; King v. Georgia Power Co., 295 F. Supp. 943 (N.D.Ga.1968). See Banks v. Lockheed-Georgia Co., 46 F.R.D. 442 (N.D.Ga.1968).

In the instant case, plaintiff's allegations, which the court must accept as proven on a motion to dismiss, are that defendants' pension plan was in force both at the time her husband died and at the time she instituted this action, and that it continues to violate the Civil Rights Act of 1964 by denying her certain benefits purely because of the sex of her husband. The EEOC, in its decision in this case, characterized the date of the alleged unlawful employment practice maintained by defendants as "continuing." Mixson v. Southern Bell Telephone & Telegraph Co., Case No. YAT9-127 (EEOC, April 8, 1971). The EEOC also noted that...