Roberts v. Arizona Bd. of Regents, Civ. 76-824 Phx. WPC.

• Decision Date: 06 July 1979
• Docket Number: No. Civ. 76-824 Phx. WPC.,Civ. 76-824 Phx. WPC.
• Parties: Carole Patricia ROBERTS, Plaintiff, v. ARIZONA BOARD OF REGENTS, Defendant.
• Court: U.S. District Court — District of Arizona

477 F. Supp. 28

Carole Patricia ROBERTS, Plaintiff, v. ARIZONA BOARD OF REGENTS, Defendant.

No. Civ. 76-824 Phx. WPC.

United States District Court, D. Arizona.

July 6, 1979.

Ronald J. Logan, of Logan & Aguirre, Phoenix, Ariz., for plaintiff.

Stephen K. Smith, Asst. Atty. Gen., Phoenix, Ariz., for defendant.

MEMORANDUM AND ORDER

COPPLE, District Judge.

Plaintiff Carole Patricia Roberts was employed by defendant Arizona Board of Regents in the Police Department of Arizona State University. She has alleged that the Board of Regents discriminated against her in her employment with the police department. In response to Interrogatory No. 7 of the defendant's first set of interrogatories, Roberts listed twenty-five instances of alleged discrimination. The Board of Regents has now moved for summary judgment against Roberts on all twenty-five instances as well as the instance of termination from the university police department which Roberts seeks to add to her response to Interrogatory No. 7.

Defendant Board of Regents has first argued that many of the alleged incidents of discrimination are barred by the statute of limitations. According to Title VII, 42 U.S.C. § 2000e et seq., a charge of discrimination must be filed with the Equal Employment Opportunity Commission ("EEOC") within one hundred and eighty days of the alleged unlawful employment. 42 U.S.C. § 2000e-5(e). The time to file a discrimination claim with the EEOC is extended to three hundred days after the alleged unlawful employment practice occurred or thirty days after receiving notice that the state has terminated proceedings under state law where the state has an agency for reviewing employment discrimination claims. Id. Arizona does have a deferral agency, the Arizona Civil Rights Division; however, Roberts did not initially file her discrimination charge with that agency. Rather, she filed her charge with the EEOC on September 10, 1975. Roberts did not file her charge with the Arizona Civil Rights Division until November 28, 1975. The EEOC could have forwarded the plaintiff's charge to the Arizona Civil Rights Division. See Love v. Pullman Co., 404 U.S. 522, 92 S.Ct. 616, 30 L.Ed.2d 679 (1972). That would have created an effective filing date. The EEOC did not, though, forward the charge. It is clear that filing the charge with the EEOC alone did not constitute a filing in light of the provision in Title VII stating:

In the case of an alleged unlawful employment practice occurring in a State . . . which has a State . . . law prohibiting the unlawful employment practice alleged and establishing or authorizing a State . . . authority to grant or seek relief from such practice . . . no charge may be filed with the EEOC by the person aggrieved before the expiration of 120 days after proceedings have been commenced under the State . . . law.

42 U.S.C. § 2000e-5(c). Thus, any instance of discrimination in employment occurring prior to June 1, 1975, is barred by the statute of limitations. See Olson v. Rembrandt Printing Co., 511 F.2d 1228, 1233 (8th Cir. 1975) ("A charge of employment discrimination must be filed within 180 days whether or not the complainant is in a deferral state. If in a deferral state it must be filed with the state or local agency within 180 days.").

Plaintiff Roberts has in effect argued that the Board of Regents is liable for discriminatory practices so long as those practices remain in effect. To the extent that a practice identical to that occurring outside the statute continues to exist within the statute of limitations, there is a cause of action. The Supreme Court, however, has indicated that "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." United Airlines, Inc. v. Evans, 431 U.S. 553, 558, 97 S.Ct. 1885, 1889, 52 L.Ed.2d 571 (1971). Thus, although a continuing violation can give rise to a cause of action, those instances that are part of the continuing violation which occurred prior to June 1, 1975, cannot be the basis for a charge of discrimination in employment. The first, second, fourth, eighth through fifteenth, eighteenth and nineteenth incidents of discrimination all are clearly alleged by Roberts to have occurred prior to June 1, 1975, and there is no allegation that instances of the discriminatory acts or practices occurred within the statute of limitations period. Thus, defendant Board of Regents is entitled to summary judgment as to a claim of discrimination in employment based on these incidents.

The third and sixteenth incidents of alleged discrimination concerned the failure of the Board of Regents to confer full senior officer status upon Roberts after May 29, 1975, and the failure to be paid as a senior officer according to representations made by her superior who acted on behalf of the Board of Regents. The Board of Regents has alleged, however, that on January 19, 1976, Roberts was granted senior officer pay retroactive to May 25, 1975. This allegation is supported by the affidavit of George Bays and is sufficient to moot the claim of discrimination in employment based on the failure to confer full senior officer status upon Roberts...