Reeb v. Economic Opportunity Atlanta, Inc.

• Decision Date: 04 August 1975
• Docket Number: No. 74-2913,74-2913
• Citation: 516 F.2d 924
• Parties: 11 Fair Empl.Prac.Cas. 235, 10 Empl. Prac. Dec. P 10,358 Mrs. Roger McMillan REEB, Plaintiff-Appellant, v. ECONOMIC OPPORTUNITY ATLANTA, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 924

516 F.2d 924

11 Fair Empl.Prac.Cas. 235,

10 Empl. Prac. Dec. P 10,358

Mrs. Roger McMillan REEB, Plaintiff-Appellant, v. ECONOMIC OPPORTUNITY ATLANTA, INC., Defendant-Appellee.

No. 74-2913.

United States Court of Appeals Fifth Circuit.

Aug. 4, 1975.

Elizabeth R. Rindskopf, John R. Myer, Atlanta, Ga., for plaintiff-appellant.

Ronald J. Armstrong, Charles T. Magarahan, Tucker, Ga., for defendant-appellee.

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

Before BROWN, Chief Judge, and WISDOM and COLEMAN, Circuit Judges.

WISDOM, Circuit Judge:

Under Title VII of the Civil Rights Act of 1964, a person seeking relief from employment discrimination was required to file a charge with the Equal Employment Opportunity Commission within ninety days after the alleged unlawful employment practice has occurred. 42 U.S.C. § 2000e-5(d) (1970). ¹ This appeal presents the question whether that provision bars a suit by a plaintiff who has not learned nor in the circumstances could reasonably have been expected to learn the facts that would support a charge of an unlawful employment practice until the ninety day period had already passed. We pretermitted this question in Belt v. Johnson Motor Lines, Inc., 5 Cir. 1972, 458 F.2d 443, 445 n. 3. The case is an unusual posture. A trial on the merits was held before the district court. After the evidence had been heard the defendant orally moved for the first time to dismiss the complaint for want of jurisdiction.

The court found that Mrs. Reeb, a white woman, was employed by Economic Opportunity Atlanta (EOA) from November 7, 1968, through September 24, 1969. She had previously worked for EOA. During the period in question here, she was initially hired on a contract basis to serve as the first director of EOA's newly established consumer services project. The district court further stated the basic facts as follows:

. . . On January 2, 1969, she became a permanent employee and continued in a permanent status until August 29, 1969. Upon transfer from contract status to the position of permanent employment, Mrs. Reeb encountered difficulty establishing her correct salary level. In an effort to recoup the losses resulting from error in her permanent salary level, she returned to contract status. This contract was for a one-month period only, presumably to be renewed each month. After completion of her first monthly contract, she was notified by a letter from EOA that her employment contract would not be renewed because of a 'limitation of funds.' This letter was dated September 24, 1969, and indicated that her termination would be effective immediately. Initially, Mrs. Reeb accepted this rationale for her termination.

In the spring of 1970, Mrs. Reeb, for the first time, learned that the position of Director of Consumer Services had subsequently been refilled on November 10, 1969, by an allegedly less qualified male employee. When the plaintiff learned of her replacement (April 21, 1970) she immediately filed charges (April 28, 1970) of sex discrimination with the Equal Employment Opportunity Commission.

The district court dismissed the case for want of jurisdiction, because Mrs. Reeb had not brought her complaint before the EEOC within ninety days of the alleged discriminatory discharge. We vacate the judgment and remand the case to the district court.

The statute in force at the time the events involved in this case took place provided:

A charge under subsection (a) (governing situations in which no state agency had jurisdiction over the kind of complaint involved) of this section shall be filed within ninety days after the alleged unlawful employment practice occurred . . ..

42 U.S.C. § 2000e-5(d) (1970). This ninety day requirement applied only to charges filed with the EEOC. In terms, at least, it had nothing to do with the jurisdiction of the United States district courts over a suit later authorized by the EEOC.

The only explicit statutory requirements in effect at the time were that the charge had been properly referred to the EEOC for possible voluntary conciliation and, in appropriate circumstances, to a state agency having jurisdiction over the complaint; that the EEOC had issued the so-called right-to-sue letter; and that suit had been brought within thirty days of the notification of right to sue. ²

It is not clear, as this Court has noted before, why the ninety day requirement has any relevance to the jurisdiction of the district court. It might well be argued that once the EEOC, the agency Congress created to administer the Act, determined that a charge was timely, has investigated the charge, and has issued a right-to-sue letter, that its determination and commitment of resources "should be open to jurisdictional challenge (in the district court) only on the ground that (the action of the EEOC) was without a rational basis." Boudreaux v. Baton Rouge Marine Contracting Co., 5 Cir. 1971, 437 F.2d 1011, 1015 n. 6.

The courts, however, have to make their own determination whether the district court has jurisdiction, rather than defer to the EEOC in the first instance. A uniform rationale in interpreting the ninety day limitation has not emerged. The Seventh Circuit has suggested the source of some of the confusion in its analysis of the legislative history of the timing requirements of the 1964 Act in general. It has noted that "as part of a compromise which made it possible to pass the Civil Rights Act of 1964, its sponsors agreed to the inclusion of provisions which impose an extremely short limitations period on private claims and require a resort to state procedures, where available, as a condition precedent to a private action in the federal courts." Moore v. Sunbeam Corp., 7 Cir. 1972, 459 F.2d 811, 820-21.

The terminology applied to the ninety day requirement has not been consistent. Some courts, like the district court in the present appeal, refer to it in a loose sense as "jurisdictional", usually meaning that unless the complaint is filed with ninety days after the alleged discriminatory act, a suit cannot be maintained in any circumstances. But this characterization has often been employed in cases involving "continuing" discriminatory practices which are said to "toll" the running of the ninety day period, and in such cases may therefore be regarded as dictum. See, e. g., Cox v. United States Gypsum Co., 7 Cir. 1969, 409 F.2d 289. Some courts have drawn an analogy between the ninety day requirement and statutes of limitations. These courts may or may not use the term "jurisdictional" in conjunction with their analysis, but they frequently apply the equitable doctrines that have grown up in the common law regarding estoppel and tolling to prevent an injustice that might otherwise be worked by a literal application of the statute.

Conceptual confusion springs from a court's describing the ninety day requirement as "jurisdictional" but proceeding on the basis of an analogy to how statutes of limitations have been construed. Statutes of limitations, designed as they are primarily to prevent stale claims, are traditionally thought to be subject to much more flexible construction than statutes which confer subject matter jurisdiction upon courts. For example, many courts hold that a party may waive the defense of the statute of limitations, but virtually all courts insist that a lack of subject matter jurisdiction may never be waived and must be invoked by the court itself if the parties fail to raise it.

The cases in this circuit have not clearly characterized the time limitations contained in the Act. In Culpepper v. Reynolds Metals Co., 5 Cir. 1970, 421 F.2d 888, this Court decided that the ninety day requirement must give way in a case where the employee had first sought to utilize grievance procedures established under a labor contract rather than proceed immediately before the EEOC. "We, therefore, hold that the statute of limitations, which has been held to be a jurisdictional requirement, is tolled once an employee invokes his contractual grievance remedies in a constructive effort to seek a 'private settlement of his complaint.' " 421 F.2d at 891. No earlier case in this circuit had held that the requirements were "jurisdictional", although other circuits had used that term. The thrust of the Culpepper holding, however, is revealed in the use of the term "statute of limitations". The Court said that the timing provisions will be subject to the same sort of equitable modifications that are applied to statutes of limitations, with the important additional requirement that these modifications will be applied in the interest of effectuating the broad remedial purposes of the statute. Thus, even in circumstances where a modification might be denied application at the common law, the modification might still be applied if the court felt that doing so would further the purposes of the statute considered as a whole. For example, in Culpepper itself, it might be said that the plaintiff elected an alternative remedy and might have been denied the benefit of tolling at common law on that ground. In Culpepper, one statutory purpose this Court found that justified applying the equitable modification was the "great emphasis in Title VII on private settlement and the elimination of unfair practices without litigation." 421 F.2d at 891, citing Oatis v. Crown Zellerbach, 5 Cir. 1968, 398 F.2d 496.

Later, in Boudreaux v. Baton Rouge Marine Contracting Co., 5 Cir. 1971, 437 F.2d 1011, 1015, this Court noted that the statement in Culpepper regarding a "jurisdictional requirement" was dictum and went on to say that "(s)ince we have determined for other reasons that appellant has properly stated a claim for relief and that summary judgment was improperly granted, we do not find it necessary to decide for the first time whether the 90-day requirement is in fact a 'jurisdictional prerequisite' to suit under ...