Rohler v. TRW, Inc., 77-1947

Citation576 F.2d 1260
Decision Date24 May 1978
Docket NumberNo. 77-1947,77-1947
Parties20 Fair Empl.Prac.Cas. 337, 16 Empl. Prac. Dec. P 8329 Lucille E. ROHLER, Plaintiff-Appellant, v. TRW, INC., William N. Lesley and Ralph M. Lehman, Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

William E. Marsh, Indianapolis, Ind., for plaintiff-appellant.

John F. Bodle, Lafayette, Ind., for defendants-appellees.

Before FAIRCHILD, Chief Circuit Judge, WOOD, Circuit Judge, and REYNOLDS, District Judge. *

REYNOLDS, District Judge.

This is an appeal from the dismissal without prejudice on July 8, 1977, of plaintiff-appellant Rohler's complaint and the denial on July 19, 1977, of her motion for reconsideration of the order of dismissal and for leave to file an amended complaint. We are asked to find that the district court abused its discretion in dismissing the complaint, albeit without prejudice, without granting leave to amend. As a result of the dismissal plaintiff was unable to proceed with her cause of action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., because her ninety-day period for filing suit following receipt of notice of right-to-sue from the Equal Employment Opportunity Commission had expired. 1

The plaintiff filed a pro se complaint on September 27, 1976, on a form from the clerk's office entitled "Form to be Used by Persons Filing a Complaint Pro Se Under the Civil Rights Act, 42 U.S.C. § 1983." Under the heading "CAUSE OF ACTION", subpart D of which contains the printed statement "I allege that the following of my constitutional rights, privileges, or immunities have been violated:" the plaintiff typed in the following:

"Allegation 1: Mr. Ralph Lehman, Pres., Mr. James C. Hayes, Works Personnel Manager, Mr. R. McCarty Div. Personnel Mgr. induced my termination with Ross Gear Div. of TRW, Inc. without just cause.

"Allegation 2: At least since the year 1953 the practice of discrimination as to sex, age, race, etc. was common despite posted notices to the contrary. (It is my understanding that these were required of a supplier to the U.S. Government).

"Allegation 3: Premeditated and continuous harassment on the part of Mr. William M. Lesley causing severe damage to my health."

In answer to subpart E of the form, where it is printed "(t)he following facts form the basis for the allegations listed above in D," the plaintiff attached a typed insert sheet stating as follows:

"Allegation No. 1

"Per letter of August 28, 1972, written by Mr. James Hayes, copy to Mr. Lesley, my employment was terminated as of August 25, 1972. In conference held in October, 1971, called to discuss my request for advancement, Mr. Lesley brought up many vague, completely false and fictitious complaints. My varified (sic) report of over $15,000 savings to the company generated in the year I was allowed to purchase office supplies, furniture, equipment, and machines was ignored. My abilities, education and strict adherence to work far surpassed most other employees.

"Allegation No. 2

"Since my employment in June, 1953 as Secretary to Mr. Roy Reser, an officer of Ross Gear Inc., I was subsequently Mr. Millard McConnell's Secretary and one of three senior secretaries in the Company. After Mr. McConnel's (sic) retirement and the advancement of Mr. Lesley to that dposition (sic), I was denied advancement when there were openings in Purchasing and other Departments. The practice of sexual discrimination was notably consistent throughout Management. Young females were given preferential treatment. Newly employed males were given the title of Buyer after a month, while women with more seniority and much less pay were expected to teach them the job. When I performed the job of buyer, I was not given remuneration usual for this, the title or the recognition.

"Allegation No. 3

"Mr. Lesley assumed Purchasing Managerial duties after about four years in the Department (1968)? and consulted me on numerous matters regarding his decisions, and granting me first choice of vacation time due to my seniority. (later I was given no choice at all) Then a reversal in tactics and in direct conversations it was evident that he was intent on relieving me of employment. Harassment was severe and continuous from that time until my August termination date. Specific instances of these are too numerous to list, but due to my education at Purdue in Personnel Management, I recognized these tactics as exactly a reversal of those intended to inspire efficient, motivated, satisfied workers."

Finally, under the printed subpart "F. REQUEST FOR RELIEF", plaintiff typed in "do not" in the space left blank in the printed provision for request for leave to proceed without prepayment of fees and costs pursuant to 28 U.S.C. § 1915. 2 She typed in a request for relief in the form of reimbursement for loss of income, bonuses, cost of living increases, Company paid portion of stock purchases, loss due to lack of advancement, Company paid pension and social security benefits, and damages to health and mental anguish.

The defendants filed an answer to the complaint in October, 1976. A pretrial conference was held the following May, 3 at which time plaintiff hired an attorney to represent her, and on June 23, 1977, the defendants filed a motion and supporting memorandum for judgment on the pleadings. Plaintiff's attorney acknowledged receipt of the motion but did not respond to it until July 8, 1977, when he filed a motion for leave to amend the complaint, without, however, submitting a proposed amended complaint. On that same day the district court granted defendants' motion and dismissed the complaint without prejudice for failure to state a claim entitling the plaintiff to relief. On July 19, 1977, plaintiff submitted a proposed amended complaint and a motion to vacate the order of dismissal and for leave to amend. The motion was denied.

In its order of July 8, 1977, the district court found that the plaintiff had failed to state a claim under 42 U.S.C. §§ 1981, 1983 or 1985, "(s)ince her complaint, fairly construed, alleges only discrimination on the basis of sex and age." That portion of the order has not been appealed from and we do not consider it.

The district court also considered plaintiff's allegations in light of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. 4 The court found as follows:

"The complaint does not purport to state a cause of action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. or under the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq. Before a district court can entertain a claim under either of these statutes, certain jurisdictional prerequisites must be met. Under Title VII, an aggrieved person may not maintain a civil action in federal court unless he or she has filed a charge of discrimination with the Equal Employment Opportunity Commission within 180 days after the alleged employment practice has occurred. 42 U.S.C. § 2000e-5(e). (Citations omitted.) The time for filing such a charge has long since passed. Similarly, under the Age Discrimination Act, an individual may not commence a civil action unless he or she has given the Secretary of Labor sixty days notice of intent to file such an action and such notice is filed within the time limitations prescribed by 29 U.S.C. § 626(d). These limitations have also long since passed.

"It therefore appears, after a careful reading of the complaint, that plaintiff has not only failed to state a claim under 42 U.S.C. § 1983 pursuant to which she expressly brought this action, but she also has stated no cause of action under other statutes which might initially appear relevant to her factual assertions. * * *."

In the proposed amended complaint submitted on July 18, 1977, the plaintiff alleged that she had filed a complaint with the EEOC within 180 days of termination of her employment on August 25, 1972, that she received notice of dismissal of her complaint by the EEOC on June 29, 1976, and that she informed the Department of Labor of the unlawful practices of her employer in 1972, and it referred her to the EEOC to pursue her complaint. The district court declined to permit amendment of the complaint, stating that as it had lacked jurisdiction at the time that it dismissed the action, it was without authority to permit amendment.

Appellant claims that the district court erred in dismissing her complaint because of failure to cite appropriate statutory jurisdiction since she had offered a proposed amended complaint based on proper statutory allegations and containing the requisite allegations of exhaustion. She asserts that while the exhaustion of administrative remedies as required in 42 U.S.C. § 2000e-5 and 29 U.S.C. § 626(d) is a jurisdictional prerequisite to suit, the allegation of exhaustion in the complaint is not. The respondents argue that the plaintiff in her complaint attempted to state a cause of action only under the Civil Rights Act of 1870-71, 42 U.S.C. §§ 1981 et seq., and that she is now asking this court to relate back her Title VII and age discrimination claims to the date of filing of the original complaint, in order to avoid the time limitations on commencement of an action set forth in 42 U.S.C. § 2000e-5(f)(1) and 29 U.S.C. § 626(d). Further they argue that the district court acted properly in dismissing the original complaint in light of appellant's express assertion in the complaint that her action was based on 42 U.S.C. § 1983 and her failure to refer therein either to 42 U.S.C. § 2000e et seq. or 29 U.S.C. § 621 et seq., or to set forth factual allegations to establish the jurisdictional prerequisites to suit imposed by those statutes.

Under Rule 8(a)(1) of the Federal Rules of Civil Procedure, it is not essential that a complainant set forth the statutory basis for the court...

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