Roberts v. North American Rockwell Corp.

• Decision Date: 10 September 1981
• Docket Number: No. 79-3424,79-3424
• Citation: 650 F.2d 823
• Parties: 25 Fair Empl.Prac.Cas. 1615, 26 Empl. Prac. Dec. P 31,885 Vivian L. ROBERTS, Plaintiff-Appellant, v. NORTH AMERICAN ROCKWELL CORPORATION, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 823

650 F.2d 823

25 Fair Empl.Prac.Cas. 1615,

26 Empl. Prac. Dec. P 31,885

Vivian L. ROBERTS, Plaintiff-Appellant, v. NORTH AMERICAN ROCKWELL CORPORATION, Defendant-Appellee.

No. 79-3424.

United States Court of Appeals Sixth Circuit.

Argued Dec. 3, 1980.

Decided June 1, 1981.

Rehearing and Rehearing En Banc Denied Sept. 10, 1981.

Tim Philpot, John C. Anggelis, Anggelis & Philpot, Lexington, Ky., for plaintiff-appellant.

Steven Kahn, Walter B. Connolly, Jr., Pepper, Hamilton & Scheetz, Washington, D. C., Bennett Clark, Stoll, Keenon & Park, Lexington, Ky., for defendant-appellee.

Before LIVELY, ENGEL and KEITH, Circuit Judges.

KEITH, Circuit Judge.

This case presents the question whether plaintiff Vivian L. Roberts' complaint of employment discrimination was filed on time. The district court concluded that Mrs. Roberts had not filed her complaint with the Equal Employment Opportunity Commission on time. Accordingly, the court granted defendant Rockwell's motion for summary judgment. We reverse.

FACTS

In December of 1972, Vivian L. Roberts went to the Winchester, Kentucky Unemployment Office. She wished to apply for a job at the North American Rockwell axle plant located in Winchester. ¹ Unemployment Office personnel told her that the plant did not hire women. They refused to give her an employment application. Shortly after that, Mrs. Roberts returned to the Unemployment Office with her son-in-law. She entered the office first, while the son-in-law waited in the car. Again, she was refused an application and was told that the company did not hire women. Mrs. Roberts left, and had her son-in-law go into the office. He was promptly given an application.

Mrs. Roberts filled out the application and mailed it directly to Rockwell. She heard nothing. From December 1972 until August of 1973, she periodically returned to the Winchester Unemployment Office to inquire as to the status of her application. She was repeatedly told that she would not be hired because she was a woman. On or about September 11, 1973, Mrs. Roberts, her sister, Ophelia Roberts, and a friend, Nancy Wylie, went to the Unemployment Office. The three women stated that they wished to apply for jobs with North American Rockwell. They were all refused applications. The women called the Kentucky Commission on Human Rights which, in turn, called the Unemployment Office. As a result of the Commission's actions, the women got their applications. Ophelia Roberts and Nancy Wylie filled out applications for a position with Rockwell and handed them in. Mrs. Roberts did not fill out an application, since she had filled one out previously, and was aware that it was still on file.

On September 17, 1973, Mrs. Roberts wrote a letter to the Equal Employment Opportunity Commission complaining about Rockwell's policies. She filed a formal charge of discrimination with the EEOC on October 5, 1973. The EEOC deferred action on the complaint, and referred the complaint to the Kentucky Commission on Human Rights. ² On September 23, 1974, the Kentucky Commission on Human Rights and North American Rockwell entered into a conciliation agreement. Under the agreement, Ophelia Roberts was offered a position at the plant. In addition, Rockwell agreed to provide the KCHR with semi-annual reports on hiring, firing and promotions. The KCHR congratulated Mrs. Vivian Roberts, the plaintiff, for her "courageous action" which "resulted in the elimination of the discriminatory practice." The EEOC adopted the conciliation agreement between the Kentucky Commission on Human Rights and Rockwell.

So far as the record shows, Mrs. Vivian Roberts obtained no specific relief in the conciliation agreement. Nor does it appear that she had waived any of her rights. Accordingly, she received her right-to-sue letter from the EEOC and brought this suit against Rockwell on January 6, 1978. The district court granted defendant Rockwell's motion for summary judgment on statute of limitations grounds, and this appeal was brought.

I

Under Title VII, a plaintiff must file with the EEOC a charge of discrimination against an employer within 180 days after the discrimination occurred. ³ Timely filing of a charge with the EEOC and subsequent timely filing of a complaint in federal district court is a pre-requisite to the maintenance of a Title VII action. See e. g. United Airlines v. Evans, 431 U.S. 553, 555 n.4, 97 S.Ct. 1885, 1887 n.4, 52 L.Ed.2d 571 (1977); Alexander v. Gardner-Denver Co., 415 U.S. 36, 47, 94 S.Ct. 1011, 1019, 39 L.Ed.2d 147 (1974).

The district court concluded that Mrs. Roberts had not filed her complaint or charge with the EEOC on time that is, within 180 days after an act of discrimination occurred. The court measured the 180-day time period from December of 1972, when Mrs. Roberts sent in her application to the defendant. This issue is the sole question raised in this appeal.

We cannot agree with the district court's analysis. If the district court were correct that the 180-day period had to be measured from December of 1972, then we would affirm. Mrs. Roberts' charge with the EEOC was not filed until October of 1973 far more than 180 days from the date she sent in her application to the company.

The problem is that both the complaint filed in this case and the limited record before us support the plaintiff's contention that she was subjected to an ongoing pattern of discrimination.

Mrs. Roberts mailed in her application to the company in December of 1972. But things did not end there. She repeatedly visited the Unemployment Office, only to be repeatedly told that Rockwell did not hire women. And there appears to be no question that she, her sister, Ophelia Roberts, and Nancy Wylie were all refused applications on September 11, 1973, when they visited the Unemployment Office as a group. As noted above, only a telephone call from the Kentucky Human Rights Commission led the Unemployment Office to give application forms to the women.

If a company discriminates by firing an employee because of his/her race or sex, the discriminatory act takes place when the employee is fired. The statute of limitations ordinarily starts running from this date. See Delaware State College v. Ricks, -- U.S. --, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980); United Airlines v. Evans, supra; Hart v. J. T. Baker Chemical Corp., 598 F.2d 829 (3d Cir. 1979); Krzyzewski v. Metropolitan Gov't, 584 F.2d 802 (6th Cir. 1978); Prophet v. Armco Steel, 575 F.2d 579 (5th Cir. 1978); Olson v. Rembrandt Printing Co., 511 F.2d 1228, 1234 (8th Cir. 1975). See also Int'l Union of Electrical Workers v. Robbins & Meyers, Inc., 429 U.S. 229, 234-35, 97 S.Ct. 441, 446, 50 L.Ed.2d 427 (1976).

The issue becomes more difficult when a company fails to hire or promote someone because of their race or sex. In many such situations, the refusal to hire or promote results from an ongoing discriminatory policy which seeks to keep blacks or women in low-level positions or out of the company altogether. In such cases, courts do not hesitate to apply what has been termed the continuing violation doctrine. See 2 Larson, Employment Discrimination 9A § 48.54 (1980); Shlei & Grossman, Employment Discrimination Law 227-34 (Supp.1979).

This doctrine has been applied in a series of early decisions. See Rich v. Martin Marietta, 522 F.2d 333 (10th Cir. 1975) ("Plaintiffs here challenge the entire promotion system, maintaining that it continually operated so as to hold them in lower echelons.") Macklin v. Spector Freight Systems, Inc., 478 F.2d 979, 987 (D.C. Cir. 1973); (layoff of black workers and prolonged union grievance proceedings "amounted merely to single episodes in an alleged conspiracy to deny applicants over-the-road driver jobs because of their race continuing at least up to and including the date the EEOC complaint was filed."); Belt v. Johnson Motor Lines, Inc., 458 F.2d 443 (5th Cir. 1972) ("no reason to lock the courthouse door to his claim solely because he has alleged a contemporary course of conduct as an act of discrimination."); Bartmess v. Drewrys USA Inc., 444 F.2d 1186 (7th Cir.), cert. denied, 404 U.S. 939, 92 S.Ct. 274, 30 L.Ed.2d 252 (1971) (maintenance of an allegedly discriminatory retirement plan is a continuous discriminatory practice). See also EEOC v. West'n Pub. Co., Inc., 502 F.2d 599 (8th Cir. 1974).

Rockwell challenges these early decisions and urges us not to follow them. Rockwell claims that a hiring case is exactly like a discharge case. That is, the date of failure to hire is necessarily the date from which the alleged discrimination is measured. Thus Rockwell claims that Mrs. Roberts had to file a timely charge with the EEOC when she was first told that Rockwell did not hire women. According to Rockwell, it was irrelevant that Mrs. Roberts returned to the Unemployment Office on numerous occasions, only to be told that no women need apply. According to Rockwell, it was irrelevant that Mrs. Roberts and her two female companions were initially denied employment applications when they returned to the Unemployment Office in September of 1973.

We cannot agree. Neither logic nor precedent supports Rockwell's position. First, by definition, if there is a continuing violation, the company is continually violating Title VII so long as its discriminatory policy remains in effect. An applicant for employment or promotion will, in many circumstances, be interested in any suitable position which opens up. As job openings become available, the applicant will automatically be rejected because of his/her race, sex or national origin. We see no reason to formalistically require an applicant to continuously apply, only to be continuously rejected. We do not think that Title VII requires that suit be filed when the applicant is initially discriminated against. If an ongoing discriminatory policy is in effect, the violation of Title VII is ongoing as well.

This case illustrates the continuing violation...