Reed v. Lockheed Aircraft Corp.

Citation613 F.2d 757
Decision Date16 January 1980
Docket NumberNo. 77-4035,77-4035
Parties22 Fair Empl.Prac.Cas. 1049, 22 Empl. Prac. Dec. P 30,602 Margaret Christine REED, Individually, Plaintiff-Appellant, v. LOCKHEED AIRCRAFT CORPORATION, Defendant-Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Marilyn V. Freytag, Goldman, Stone & Freytag, Pasadena, Cal., for plaintiff-appellant.

Scott H. Dunham, O'Melveny & Meyers, Los Angeles, Cal. (argued), for defendant-appellee; Richard C. White, Los Angeles, Cal., on brief.

Appeal from United States District Court for Central District of California.

Before WRIGHT, HUG and FLETCHER, Circuit Judges.

EUGENE A. WRIGHT, Circuit Judge:

We review the grant of defendant's motion for summary judgment in this employment discrimination case. The trial court concluded there was no issue of fact which, if resolved in plaintiff's favor, could lead to a plaintiff's verdict. We disagree and reverse and remand.


Margaret Reed was an employee of Lockheed for almost 35 years from 1943 until her retirement in 1978. Her advancement was slow. She began as a clerk in the Stock Transfer Department in 1948, attained a supervisory position of Assistant Transfer Officer in 1953, and was "promoted" to Transfer Officer in 1963.

The word "promoted" is used advisedly, because Reed alleges she was given no raise to accompany the change in title. Although counsel for appellee refer to the 1963 event as a "promotion," Howard Lockwood, appellee's personnel director, testified in his declaration that Reed received a "change in title only, without a corresponding change in duties and salary grade." This means that she continued at the same job with the same duties from 1953 until she retired in 1978. Whether a male supervisor would have held the same position for 25 years is unclear. 1

In addition to her failure-to-promote allegation, Reed alleged that men with the same or less responsibility earned higher salaries than she did. 2 Specifically, she alleged that Lockheed discriminated against her by bringing a man from the East Coast to become Director of Investment Relations. The position carried no greater responsibility than hers, yet the salary was twice as much. Ms. Reed's claim is two-fold: she, not the new man, should have been given the position or, in the alternative, her salary should be commensurate with his.

She also alleged that Lockheed discriminated against her and all women employees by closing special training programs to women. In evidence are Lockheed brochures which describe the programs as available to "men under 35 . . ." or in other masculine terms. 3

Based on Ms. Reed's deposition, the court found that she had not been rejected either for a training program or a promotion. Reed contends that at Lockheed one did not usually apply for promotions or training programs. The company ordinarily approached employees with offers to participate in a program or to be promoted. She further contends it was futile for women to seek advancement. 4 Whether or not the company discriminated against her, then The final factual issue concerns Reed's August, 1975 request for a salary increase. Lockheed contends, and the trial court found, that she was indeed given a pay increase, and she has nothing about which to complain. 5 Reed alleges that the increase was a "token," and that the company discriminated by not advancing her salary as they would that of a man. She also contends that the salary differential between her and her lowest-level subordinate is much smaller than between any male supervisor and his lowest-paid subordinate. 6

turns in part on the factual issue of how one is promoted at Lockheed, and whether women have a justifiable belief that promotion is not available to them.

Reed filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) on January 24, 1976. Title VII provides a statute of limitations. A charge of discrimination must be filed within 180 days of the alleged discrimination or within 300 days if there is a state compliance agency. (Title VII, 42 U.S.C. § 2000e-5(e)). 7 The trial court found that Reed's discrimination claims were time-barred and, alternatively, that the claims had no merit even if not time-barred. It granted Lockheed's motion for summary judgment.


In our review we must view the evidence in the light most favorable to Reed, to determine if there was a genuine issue as to any material fact. We are mindful that the trial court's function was similarly limited:

In ruling on a motion for summary judgment, it is not the function of the court to resolve existing factual issues through a "trial by affidavits." (Citation) The court is to determine whether a genuine issue of material fact exists, viewing all evidence and factual inferences "in the light most favorable to the party opposing the motion."

Ramirez v. National Distillers and Chemical Corp., 586 F.2d 1315, 1318 (9th Cir. 1978).

Courts are reluctant to dismiss by summary judgment Title VII discrimination suits where, as in antitrust actions, motive and intent are crucial elements and the proof is in the hands of the alleged wrongdoers. See Calnetics Corp. v. Volkswagen of America, Inc., 532 F.2d 674, 683 (9th Cir.), Cert. denied 429 U.S. 940, 97 S.Ct. 355, 50 L.Ed.2d 309 (1976).

1. The Statute of Limitations

The district court ruled that, because Reed did not file a charge of discrimination within the appropriate time period, her claim is time-barred. In so concluding, the court determined that Reed's complaint alleged only three instances of discrimination, in 1963, 1969 and 1972. If true, then Reed's claim would indeed be time-barred.

The complaint should not be read so narrowly. Her allegations included a sweeping attack on Lockheed's systems of promotion, compensation and training. She alleged that the violations took place throughout her service at Lockheed and until the day she filed her complaint.

Reed alleges, for example, that under Lockheed's promotion practice the company approached worthy candidates to ask them if they wished promotion. The employee need not seek it. If true, (and there is at least a genuine issue of fact as to the truth of this claim) and if it is also true that Reed was not promoted for 25 years, then each day without promotion constituted a new violation of Title VII, assuming that similarly situated males were promoted with more regularity.

The fact that Reed sought to establish her case by listing specific incidents antedating the limitations periods is irrelevant. The 1963, 1969 and 1972 events are not the basis of her charge of discrimination. They are but evidence that a Policy of discrimination pervaded Lockheed's personnel decisions. The violations of which she complains occurred each day of her employment, including the days within the appropriate limitations period.

Appellee asserts that this kind of allegation comes under the doctrine of "continuing violations," a doctrine which, it asserts, the Supreme Court rejected in United Air Lines, Inc. v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977). Appellee errs on two counts: First, this case is distinguishable from Evans and is not controlled by it. 8 Second, the continuing violation doctrine, properly understood, has been approved by many post-Evans courts.

In Evans, an employee of United Air Lines was dismissed when she married, under a company policy later declared to be in violation of Title VII. After reinstatement, the employee sought consideration for seniority purposes of the years she was away from her job. She contended that a denial of seniority benefits for the period during which the company illegally kept her from working was a continued violation of her rights.

The Supreme Court disagreed, holding that, if United's present policy did not discriminate, Evans could not seek relief for past violations (then time-barred) which had a present adverse impact. The Court stated:

A discriminatory act which is not made the basis for a timely charge is the legal equivalent of a discriminatory act which occurred before the statute was passed. It may constitute relevant background evidence in a proceeding in which the status of a current practice is at issue, . . .

431 U.S. at p. 558, 97 S.Ct. at p. 1889.

The Court did not, as appellee contends, reject the doctrine of continuing violations. It merely defined the nature of continuing violations:

Respondent emphasizes the fact that she has alleged a Continuing violation. United's seniority system does indeed have a continuing impact on her pay and fringe benefits. But the emphasis should not be placed on mere continuity; the critical question is whether any present Violation exists.

Id. (Emphasis in original.)

For the purposes of this action, then, the critical question is whether Lockheed, within 300 days of Reed's filing her charge, engaged in the unlawful conduct of failing to promote women in situations where men would be promoted. The Evans decision held merely that continuing Impact from past violations is not actionable. Continuing violations are.

The distinction between continuing Violations and continuing Impact from past violation has been recognized by post-Evans courts. In Clark v. Olinkraft, Inc., 556 F.2d 1219 (5th Cir. 1977) the court quoted language appropriate here:

"Plaintiffs here challenge the entire promotion system maintaining that it continually operated so as to hold them in lower echelons. Hence, the 90 day period (now 180 days) period (sic) prior to the filing of the EEOC charges looms inconsequential in this kind of case."

Id. at 1222, quoting Rich v. Martin Marietta Corp., 522 F.2d 333, 348 (10th Cir. 1975).

We agree with the Clark court's conclusion:

The allegations of the complaint and testimony in the deposition show that continuing discrimination is under attack.

The appellant's action is therefore not time-barred.

Id. at...

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