Smith v. American President Lines, Ltd.

• Citation: 16 FEP Cases 712,571 F.2d 102
• Decision Date: 26 January 1978
• Docket Number: AFL-CI,D,No. 51,51
• Parties: 16 Fair Empl.Prac.Cas. 712, 15 Empl. Prac. Dec. P 8087 Eric E. SMITH, Plaintiff-Appellant, v. AMERICAN PRESIDENT LINES, LTD. and Marine Engineers' Beneficial Association,efendants-Appellees. ocket 77-7182.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 102

571 F.2d 102

16 Fair Empl.Prac.Cas. 712, 15 Empl. Prac.

Dec. P 8087

Eric E. SMITH, Plaintiff-Appellant, v. AMERICAN PRESIDENT LINES, LTD. and Marine Engineers'

Beneficial Association, AFL-CIO, Defendants-Appellees.

No. 51, Docket 77-7182.

United States Court of Appeals, Second Circuit.

Argued Sept. 23, 1977.

Decided Jan. 26, 1978.

William D. Wells, New York City (Nathaniel R. Jones, New York City, on brief), for plaintiff-appellant.

Robert J. Hickey, New York City (Kirlin, Campbell & Keating, New York City, James J. Higgins, Vincent J. Lynch, New York City, of counsel), for defendant-appellee American President Lines, Ltd.

Joel C. Glanstein, New York City (Markowitz & Glanstein, New York City), for defendant-appellee Marine Engineers' Beneficial Association, AFL-CIO.

Before FRIENDLY, SMITH and MULLIGAN, Circuit Judges.

MULLIGAN, Circuit Judge:

This is an appeal from an order of the United States District Court for the Southern District of New York, Hon. Charles M. Metzner, Judge, dismissing for lack of subject matter jurisdiction an action brought under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. (Title VII), in which appellant Eric E. Smith alleged that appellees American President Lines, Ltd. (APL) and Marine Engineers' Beneficial Association, AFL-CIO (MEBA) discriminated against him on account of his race.

The appellant, a member of the MEBA, was employed on June 8, 1970 as a Second Assistant Engineer on a voyage of the vessel, the S.S. President Pierce, which was owned and operated by APL. Appellant was discharged at the end of the voyage on October 5, 1970. Smith, a black seaman, claims that during the voyage he was harassed and abused because of his race and color and that his discharge was racially motivated. APL claims that he was fired for his lack of ability. On October 6, 1970 APL filed a complaint with the United States Coast Guard charging Smith with incompetence as well as misconduct and disobedience during the voyage. On October 14, 1970 appellant filed a charge of racial discrimination with the New York State Division of Human Rights (NYSDHR) against APL but did not name MEBA as a defendant. On September 17, 1971, after a hearing which consumed some 7 days, NYSDHR found that while APL and one of its employees had denied Smith "equal terms, conditions and privileges of employment" because of his color or race, his discharge was not racially prompted and that APL had committed no unlawful discriminatory practice by discharging him. On September 30, 1971 Smith appealed to the State Human Rights Appeal Board. That appeal was later abandoned and on December 4, 1972 he was advised by NYSDHR, that short of an application for judicial review, his rights had been exhausted under state law.

On September 2, 1971 the Coast Guard dismissed APL's charges against Smith. On November 19, 1971 Smith filed two charges of employment discrimination with the United States Equal Employment Opportunity Commission (EEOC). The first alleged that APL had discriminated against him because of his race by denying him equal terms and conditions of employment and by discharging him; the second charged that MEBA had failed to represent him in grievance proceedings in connection with his discharge. Smith filed a third amended charge on November 24, 1972 which named only APL and officers of the S.S. President Pierce. In it Smith alleged that although he had been discharged on the stated ground of incompetence appellant believed he had been discriminated against due to his race.

On May 23, 1974 the EEOC, through its Acting District Director made a determination that there was reasonable cause to believe that APL and MEBA, as alleged by Smith, had violated Title VII. The parties were invited to join the Commission in a collective effort toward a just reconciliation of the matter. On February 25, 1975 EEOC advised all parties that conciliation efforts had failed and on May 6, 1975 advised Smith of his right to sue in the district court.

On May 28, 1975 Smith commenced this action against APL and MEBA by filing a complaint in the United States District Court for the Southern District of New York asserting jurisdiction under Title VII. On August 20, 1976 APL filed a motion to dismiss or in the alternative for summary judgment contending that the court had no jurisdiction since the charges had been filed with the EEOC after expiration of the statutory time period set forth in 42 U.S.C. § 2000e-5(e). Judge Metzner initially denied the motion on December 13, 1976. However, on reconsideration on January 21, 1977 he found that the plaintiff's charge was filed in excess of 300 days after his termination and thus, did not satisfy the time limits in 42 U.S.C. § 2000e-5(e). It is from this judgment that Smith appeals. ¹

I. TIMELINESS OF FILING

A. MEBA

The sole issue presented on this appeal is whether the appellant's Title VII claims against APL and MEBA are time barred under 42 U.S.C. § 2000e-5(e), which in relevant part is set forth in the margin. ² Smith filed his charge against MEBA on the 19th of November, 1971, alleging that Mr. Costello, the Union Patrolman assigned to cover the S.S. President Pierce, had advised him on October 6, 1970 to withdraw his charges against APL and the ship officers since it would be a question of his word "against theirs." His charge fixed September 18, 1970 as the "most recent date on which this discrimination took place."

We are mindful that we must construe the procedural requirements of Title VII with liberality in view of its beneficial purposes in exposing unlawful discrimination. See Love v. Pullman, 404 U.S. 522, 92 S.Ct. 616, 30 L.Ed.2d 679 (1972). We further note that EEOC charges are normally made by those untutored in the niceties of pleading. See, e. g., Egelston v. State University College at Geneseo, 535 F.2d 752, 754-55 (2d Cir. 1976). However, in this case the face of the charge reveals that the latest date on which MEBA allegedly failed to investigate and process the grievance of Smith was on October 6, 1970. Under § 2000e-5(e), Smith's charge to the EEOC had to be filed within 180 days after October 6, 1970 and thus the November 19, 1971 filing was untimely. Since the filing of a timely EEOC charge is a necessary prerequisite to a Title VII action in the district court, e. g., United Air Lines, Inc. v. Evans, 431 U.S. 553, 555 n.4, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977); Alexander v. Gardner-Denver Co., 415 U.S. 36, 47, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974), the complaint as to MEBA was properly dismissed.

Appellant urges, however, that the refusal of MEBA to process the grievance and to represent Smith in his attempt to seek redress were links in a chain of continuous discriminatory conduct by MEBA which persisted until December 10, 1971 when counsel for MEBA declined by letter to represent Smith on his appeal to the Appeal Board from the NYSDHR dismissal of his charge against APL. Indeed, the EEOC determination stated:

The record shows the Charging Party made a constructive effort to seek the assistance of Respondent Labor Organization until December 10, 1971. On that date, Respondent Labor Organization's counsel informed Charging Party that his case was without merit and declined to act on his behalf.

There is authority in this circuit for the proposition that a plaintiff may defeat a time bar to a Title VII civil suit by asserting subsequent identifiable acts of discrimination related to a time barred incident. ³ Egelston v. State University College at Geneseo, supra, at 755; Noble v. University of Rochester, 535 F.2d 756, 757-58 (2d Cir. 1976); Weise v. Syracuse University, 522 F.2d 397, 410 n.20 (2d Cir. 1975). ⁴ This precedent is not apposite, however, to appellant's position here. In the cases relied upon by appellant the charging party either had filed an amended or second charge with the EEOC which was timely as to subsequent discriminatory conduct by the defendant, or had filed an initial charge within the time frame of § 2000e-5(e) as to certain enumerated acts within an alleged discriminatory pattern. ⁵ These cases therefore, demonstrate that if initially Smith had either set forth in his charge to the EEOC events which indicated that MEBA's refusal to investigate and process his grievance on October 6, 1970 was part of a continuing pattern of identifiable discriminatory conduct, or if he had filed an amended or second charge with respect to the Union's failure to represent him in separate proceedings against APL, ⁶ there would be no question of timeliness.

However, those are not the facts we face here. Smith's initial charge, as we have indicated, made no reference at all to any event after October 6, 1970 and intimated no subsequent refusals by MEBA to represent him in separate proceedings against APL. Smith did file a second charge on November 24, 1972. It did not, however, name MEBA as a respondent but was limited to allegations against APL and officers of the S.S. President Pierce. ⁷ We conclude therefore that the Title VII complaint against MEBA was properly dismissed.

B. APL

Smith filed with the EEOC two charges of discrimination against APL dated November 19, 1971. The first names APL as the sole respondent and complains of harassment on the S.S. President Pierce voyage which culminated in his discharge. The last date of discrimination is given as October 6, 1970. The second charge names APL, ship's officers and MEBA. It again refers to harassment and discharge but, as we have previously indicated, gives the most recent date of discrimination as September 18, 1970. A third amended charge was filed against APL on November 24, 1972 and is limited to the allegation that Smith's discharge was due not to incompetence but to his race. ⁸ The last date of discrimination is given as September 17, 1970 and "continuing." Since Smith had instituted proceedings with a state agency against APL, his time to file...