Pollard v. City of Hartford

• Decision Date: 01 June 1982
• Docket Number: Civ. No. H-81-330.
• Citation: 539 F. Supp. 1156
• Parties: Ola M. POLLARD and Lydia DeJesus v. CITY OF HARTFORD, et al.
• Court: U.S. District Court — District of Connecticut

539 F. Supp. 1156

Ola M. POLLARD and Lydia DeJesus v. CITY OF HARTFORD, et al.

Civ. No. H-81-330.

United States District Court, D. Connecticut.

June 1, 1982.

COPYRIGHT MATERIAL OMITTED

Charles Krich, Hartford, Conn., for plaintiffs.

Dennis L. Pieragostini, Asst. Corp. Counsel, City of Hartford, James F. Meehan, Sp. Counsel, Hartford, Conn., for defendants.

RULING ON DEFENDANTS' PENDING MOTIONS

BLUMENFELD, Senior District Judge.

In this action the plaintiffs challenge a written examination given by the City of Hartford in December 1980 to candidates for entry positions as officers with the Hartford Police Department. The named plaintiffs are a black female and an Hispanic female, respectively, who took and failed this examination. They seek to represent a class of "all persons similarly situated who constitute a class of those black or Hispanic or female persons failing the entry level examination." The plaintiffs allege that the examination had the effect and the intent of discriminating against them on the basis of national origin, race and/or sex. The City of Hartford and various officials of the City and its police department are named as defendants.

The plaintiffs filed their original complaint on May 12, 1981. The defendants filed a motion to dismiss under Rules 12(b)(1) and (6) of the Federal Rules of Civil Procedure. Alternative motions to strike certain allegations pursuant to Rule 12(f) and for a more definite statement under Rule 12(e) were filed by the defendants at the same time. Argument was heard on these motions on October 19, 1981. While these motions were pending, plaintiff's counsel informed the court that a motion for leave to file an amended complaint would be filed shortly and that the proposed amended complaint would resolve some of the issues presented by the defendants' motion to dismiss. The court, therefore, delayed ruling on the defendants' pending motions, and on February 10, 1982 the plaintiffs filed their motion for leave to amend. The court granted this motion on March 30, 1982, and the amended complaint was filed on the same date by the Clerk of the Court.

The plaintiffs' amended complaint alleges that the employment practices and policies of the defendants, specifically as they relate to the written entrance examination given in December 1980, are unlawful in that they violate (1) Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d et seq.;¹ (2) Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq.; (3) Section 1 of the Civil Rights Act of 1871, 42 U.S.C. § 1983; (4) Section 16 of the Civil Rights Act of 1870, 42 U.S.C. § 1981; (5) the fourteenth amendment to the United States Constitution; (6) the settlement stipulation approved by this court in Cintron v. Vaughan, Civil No. 13,578; and (7) the regulations, rules, charter provisions and policies of the City of Hartford, specifically Rule VI of the City's personnel rules.

The defendants have not amended their motions to address the amended complaint so the court will rule on the pending motions as they apply to the amended complaint. The portion of the defendants' motion to dismiss which is addressed to plaintiffs' original claims under section 122 of the State and Local Fiscal Assistance Act of 1972, as amended, 31 U.S.C. § 1242, is now moot because the plaintiffs do not plead this statute in their amended complaint.

I. TITLE VII CLAIM

The defendants move to dismiss the plaintiffs' claim under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (Title VII), on the grounds that the plaintiffs' failure to comply with the administrative procedures mandated by that statute defeats the court's jurisdiction and/or the plaintiffs' attempt to state a claim under Title VII. The amended complaint alleges that on May 18 and May 22, 1981, respectively, the named plaintiffs filed timely complaint affidavits with the Connecticut Commission on Human Rights and Opportunities and that Notices of the Right to Sue were issued on November 13, 1981 by the United States Department of Justice pursuant to 29 C.F.R. § 1601.28(d)(2). The original complaint contained no such allegations and, in fact, was filed a few days prior to the time the plaintiffs filed their complaints with the state agency. The question now presented to the court, however, is whether the allegations of the amended complaint are sufficient to support the court's jurisdiction and to state a claim under Title VII.

Section 706 of Title VII sets forth a complex administrative process which must be complied with prior to instituting a private civil action under Title VII. 42 U.S.C. § 2000e-5. A person aggrieved by an employment practice allegedly in violation of the Act must (1) file a charge with the Equal Employment Opportunity Commission (EEOC) within 300 days of the alleged discrimination where there is a state or local agency with jurisdiction over the subject matter of the charge,² and (2) file a civil action in the district court within 90 days of receiving notice from the EEOC of its failure to reach a conciliation agreement with respect to the charge. 42 U.S.C. § 2000e-5(f). Federal regulations provide that a state or local agency may be designated as an agent of the EEOC for purposes of receiving the charge and that, therefore, filing with such a "§ 706 agency" shall constitute receipt by the EEOC. 29 C.F.R. § 1601.13. The charge is deemed to be filed with the EEOC after 60 days or after termination of the state agency proceedings, whichever occurs first. 29 C.F.R. § 1601.13(b). The Connecticut Commission on Human Rights and Opportunities is a recognized "§ 706 agency," 29 C.F.R. § 1601.74(a), and, therefore, the complaints filed by the plaintiffs with this agency satisfied the statutory requirement that a charge be filed with the EEOC.

A. Timeliness of the Plaintiffs' Charges

The plaintiffs have filed their charges in a timely fashion because they were filed well within the 300-day period applicable to a case where there is a state agency with jurisdiction. The date on which the examination was given³ can be taken as the date on which the discriminatory practices complained of occurred. Although the discriminatory practices arguably can be considered to have continued past that date, the court need not resolve the question of whether a continuing course of discrimination is involved here because even if the earliest possible date is used, i.e. the date of the examination, the charges filed with the Connecticut Commission on Human Rights and Opportunities were clearly timely as they were filed well within the 300-day period which applies to this case, 42 U.S.C. § 2000e-5(e).

B. Timeliness of the Complaint

In addition to the requirement of filing a timely charge, Title VII plaintiffs must comply with the 90-day limitations period by filing their complaint not more than 90 days after receiving the statutory notice of their right to sue. 42 U.S.C. § 2000e-5(f). The plaintiffs here filed their original complaint on May 12, 1981, received the statutory notice on November 13, 1981,⁴ and filed a motion for leave to amend on February 10, 1982, pleading, inter alia, compliance with the procedural requirements of section 706. The amended complaint itself was not filed until March 30, 1982 due to the court's delay in acting upon the motion for leave to amend.

It is a well established principle that the procedural requirements of Title VII should be construed flexibly in order to effectuate the remedial purposes of the statute. See, e.g., Love v. Pullman, 404 U.S. 522, 526-27, 92 S.Ct. 616, 618-19, 30 L.Ed.2d 679 (1972); Kane v. Douglas Elliman, Hollyday & Ives, 635 F.2d 141, 142 (2d Cir. 1980); Egelston v. State University College at Genesco, 535 F.2d 752, 754-55 (2d Cir. 1976). In this case the complaint can be held to be timely under either of two theories. First, the date on which the plaintiffs filed their motion for leave to amend can be considered to be the date on which they initiated this action. Since the motion for leave to amend was filed 89 days after issuance of the statutory notice, the complaint is timely on that basis alone. In addition, however, the amended complaint arises out of the same "conduct, transaction, or occurrence" set forth in the original pleading and, therefore, relates back to the date of the original complaint under Rule 15(c) of the Federal Rules of Civil Procedure. If receipt of the statutory notice six months subsequent to the filing of the original complaint validates the pending action, defendants' motion to dismiss the Title VII claim can be overcome on this theory as well.

I have little difficulty concluding that filing a motion for leave to amend a complaint constitutes the bringing of a civil action for purposes of complying with the 90-day limitations period. There is substantial authority, in an analogous situation, holding that the filing of a petition for appointment of counsel either constitutes the bringing of a civil action under Title VII or, at least, tolls the running of the limitations period until counsel is appointed. E.g., Wingfield v. Goodwill Industries, 666 F.2d 1177, 1179 n.3 (8th Cir. 1981); Harris v. Walgreen's Distribution Center, 456 F.2d 588, 592 (6th Cir. 1972). In such a situation the courts have concluded that, since there is no prejudice to the defendant who has been put on notice by the filing of a charge with the EEOC, a plaintiff's attempt to initiate his action by doing all he can without further leave of court satisfies the requirement that a civil action be brought within 90 days from the date statutory notice was received. Wingfield v. Goodwill, 666 F.2d at 1179 n.3.

The situation in the case at bar is similarly one where the plaintiffs have taken all the steps they could within the 90-day period. Their amended complaint could not be filed until they had obtained permission from the court. Fed.R.Civ.P. 15(a). Under ...