Montgomery v. Atlanta Family Restaurants, Inc.

• Decision Date: 04 December 1990
• Docket Number: Civ. A. No. 1:89-CV-2264-JTC.
• Citation: 752 F. Supp. 1575
• Parties: Jackie MONTGOMERY, Plaintiff, v. ATLANTA FAMILY RESTAURANTS, INC., Defendant.
• Court: U.S. District Court — Northern District of Georgia

752 F. Supp. 1575

Jackie MONTGOMERY, Plaintiff, v. ATLANTA FAMILY RESTAURANTS, INC., Defendant.

Civ. A. No. 1:89-CV-2264-JTC.

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

December 4, 1990.

David H. Bedingfield, Atlanta, Ga., for plaintiff.

Martha C. Perrin, Atlanta, Ga., for defendant.

ORDER

CAMP, District Judge.

This action is presently before the Court on the Magistrate's Report and Recommendation. The defendant has filed an objection. The Court has performed a careful de novo review of the record, and for the reasons stated below, AFFIRMS the Magistrate's holding.

The Court finds the Magistrate's Report to be correct in all respects, and ADOPTS it in its entirety as the opinion of the Court.

Defendant's attempts to convince the Court that the Magistrate has misapplied cases and information to reach an erroneous conclusion are unpersuasive. Most of defendant's arguments asserted in its objection are a reiteration of the arguments asserted by defendant in its Motion for Summary Judgment.

In making a recommendation on defendant's Motion for Summary Judgment, the Magistrate correctly found that the conduct in which the defendant was allegedly involved would constitute a "continuing violation," thus allowing the plaintiff's EEOC charge to relate back to the 8th of November, 1988. Further, the Magistrate correctly determined that the elements necessary for the stating of a charge in plaintiff's attorney's letter of November 8th were satisfied. As such, the Magistrate was correct in DENYING defendant's Motion for Summary Judgment based on allegations of an untimely filed EEOC report.

The Magistrate was similarly correct in GRANTING defendant's Motion for Summary Judgment with respect to plaintiff's Section 1981 claims for failure to promote based on the recent holding in Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989). Plaintiff does not object to this conclusion.

Similarly, the Magistrate correctly determined that the defendant's Motion for Summary Judgment should be DENIED as to plaintiff's Section 1981 claims for discharge and loss of income during her employment. Defendant argues that the recent case of Otubu v. Wakefern Food Corp., 741 F.Supp. 57, 53 F.E.P. (BNA) 1560 (S.D.N.Y. 1990) directly contradicts the holding of the Magistrate with respect to the discharge of plaintiff. In that case, a black employee alleged employment harassment and termination on the basis of his race. The plaintiff there alleged the doctrine of continuing violations in an attempt to save the portions of the claim that survived Patterson. Id. 741 F.Supp. 57, 53 F.E.P. (BNA) at 1562. However, the Court there determined that the doctrine of continuing violations was not applicable to that case because all of the alleged violations occurred outside of the statutory period. Id.

The Otubu case is distinguishable from the present action. In this instance, the plaintiff alleges continuing violations that extend into the statutory period; that is, plaintiff alleges violations that occurred within the two-year period prior to the institution of this suit. Accordingly, the defendant's attempted reliance on the holding in Otubu is misplaced.

As such, the Court adopts the Magistrate's report and recommendations. Defendant's Motion for Summary Judgment is DENIED as to plaintiff's Title VII action and Section 1981 actions for discharge and loss of income during employment. However, partial Summary Judgment is GRANTED in favor of defendant on the issue of failure to promote asserted in plaintiff's Section 1981 claim.

SO ORDERED.

MAGISTRATE'S ORDER AND REPORT AND RECOMMENDATION

JOHN E. DOUGHERTY, United States Magistrate Judge.

Plaintiff brings this action for alleged violations of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (Title VII), and the Civil Rights Acts of 1866, 42 U.S.C. § 1981.¹ Plaintiff, a black female, alleges that defendant discriminated against her because of her race. Specifically, plaintiff contends that she was constructively discharged on July 7, 1988, due to defendant's repeated acts of racial discrimination throughout her career. In addition, plaintiff maintains that defendant had a stated policy and practice of denying equal opportunity to blacks, both in hiring and in advancement. The case is currently before the magistrate on defendant's Motion for Summary Judgment and defendant's Motion to Stay Proceedings, as well as on plaintiff's Motion to Amend Complaint and plaintiff's Motion for Class Certification.

Defendant's Motion to Stay Proceedings

On July 3, 1990, defendant moved to stay plaintiff's motions to add a party, for class certification, and for summary judgment. In addition, defendant requests the court to impose sanctions against plaintiff or her attorney under Rule 11 of the Federal Rules of Civil Procedure.

By Order dated February 23, 1990, the undersigned magistrate ruled, pursuant to the parties' consent, that class issues would be deferred until resolution of the defendant's Motion for Summary Judgment. The magistrate directed plaintiff to move to certify this case as a class action pursuant to Fed.R.Civ.P. 23(c)(1) within ninety (90) days after the final determination of defendant's motion. Nonetheless, plaintiff filed its Motion for Class Certification on June 19, 1990. While plaintiff obviously disregarded the court's direction, filing this motion early is not a basis for the imposition of sanctions under Rule 11. Defendant's request is therefore DENIED.

Defendant's Motion to Stay is hereby GRANTED, however. In the event the district judge adopts the magistrate's recommendation as to defendant's Motion for Summary Judgment, the court DIRECTS defendant to file a response to plaintiff's motions within twenty (20) days after final determination of defendant's Motion for Summary Judgment.

Defendant's Motion for Summary Judgment

Defendant moves for summary judgment, arguing that plaintiff's claim of race discrimination is barred because plaintiff did not timely file her charge of discrimination with the Equal Employment Opportunity Commission (EEOC). Defendant also contends that plaintiff's claims under 42 U.S.C. § 1981 are untimely. Additionally, defendant argues that plaintiff's claims relating to the terms and conditions of her employment are not actionable under 42 U.S.C. § 1981 since that statute cannot encompass post-contract formation conduct.

Summary Judgment Standard

Under Fed.R.Civ.P. 56(c), summary judgment may be granted only if there is no issue as to any material fact and the law favors the moving party. Although summary judgment motions may be granted in Title VII cases, and often are, such cases raise the issue of discriminatory intent which may be difficult to discern from affidavits. Thornbrough v. Columbus & Greenville Railroad Co., 760 F.2d 633 (5th Cir.1985); Sweat v. Miller Brewing Co., 708 F.2d 655 (11th Cir.1983). The plaintiff need not prove a prima facie case at summary judgment stage; rather, she need only demonstrate that there are material issues of fact as to the existence of a prima facie case to defeat defendant's motions. The factfinder should accept the truth of plaintiff's testimony; however, summary judgment should be entered if plaintiff fails to make a sufficient showing of an essential element to her case. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

Whether Plaintiff's Charge of Discrimination Was Timely Filed

Defendant moves for summary judgment on plaintiff's contention that she was a victim of race discrimination, claiming that plaintiff failed to file a charge of discrimination with the EEOC within the required 180-day time limit set forth in 29 U.S.C. § 626(d)(1). The requirement that an EEOC charge be timely filed is a condition precedent to the maintenance of a civil action under Title VII. IMPACT v. Firestone, 893 F.2d 1189, 1196 (11th Cir.1990); Alexander v. Gardner-Denver Co., 415 U.S. 36, 47, 94 S.Ct. 1011, 1019, 39 L.Ed.2d 147 (1974). It is well-settled that this 180-day period begins to run when the discriminatory act occurred. Delaware State College v. Ricks, 449 U.S. 250, 257, 101 S.Ct. 498, 503, 66 L.Ed.2d 431 (1980). See also Lorance v. AT & T Technologies, Inc., 490 U.S. 900, 109 S.Ct. 2261, 2264, 104 L.Ed.2d 961, 970 (1989).

Plaintiff was terminated from her position as a waitress by defendant on July 7, 1988, when she left work before the end of her shift and failed to return. On February 2, 1989, 209 days after she walked off the job, plaintiff filed a charge with the EEOC alleging constructive discharge based on race. (Plaintiff's Exhibit, hereinafter P.E., 4). Although defendant maintains that this charge is untimely, plaintiff contends that the charge relates back to November 8, 1988, when plaintiff's lawyer wrote to the EEOC. (See P.E. 1).

According to plaintiff, the original charge of discrimination filed on plaintiff's behalf by her then attorney, Craig Jones, was not a completed filing because it contained no sworn verification from plaintiff. As plaintiff notes, 29 C.F.R. § 1601.12(b) allows for an amendment to cure technical defects in the original charge, including failure to verify the charge, and specifically allows the amendment to relate back to the date the charge was first received. In its reply, however, defendant argues that plaintiff incorrectly represents that only a verification was necessary to perfect the letter of plaintiff's attorney. On November 10, 1988, Lenora Martin responded to plaintiff's attorney's letter on behalf of the EEOC, explaining that "the information you provided is not sufficient for filing a charge of discrimination." (P.E. E).

This letter by Lenora Martin appears to be a form letter, and it does not specify what information is lacking from Attorney Jones' letter dated November 8, 1988. Rather, the letter requests plaintiff to contact the EEOC to arrange for an...