Taliaferro v. Dykstra

• Decision Date: 29 January 1975
• Docket Number: Civ. A. No. 73-584-R.
• Citation: 388 F. Supp. 957
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Ruth TALIAFERRO et al. v. Vergil DYKSTRA et al.

388 F. Supp. 957

Ruth TALIAFERRO et al. v. Vergil DYKSTRA et al.

Civ. A. No. 73-584-R.

United States District Court, E. D. Virginia, Richmond Division.

January 29, 1975.

Philip J. Hirschkop, John D. Grad, Alexandria, Va., for plaintiffs.

Walter H. Ryland, Asst. Atty. Gen. of Va., Richmond, Va., for defendants.

MEMORANDUM

MEHRIGE, District Judge.

Plaintiffs in this action, females and former teachers at Virginia institutions of higher education, seek monetary and injunctive relief from alleged deprivations of constitutional rights arising during the course of their employment by said institutions. Jurisdiction is alleged pursuant to 42 U.S.C. §§ 1983 and 1985 and 28 U.S.C. §§ 1331, 1343 and 2201.

In its memorandum of March 6, 1974, the Court ruled on several aspects of defendants' motion to dismiss the complaint on the grounds that relief to all named plaintiffs was barred by the statute of limitations. While resolving this motion in favor of the other named plaintiffs, the Court at that time requested additional memoranda from counsel as to whether a complaint to the Office for Civil Rights (OCR) of the Department of Health, Education and Welfare (HEW), such as that filed by plaintiff Schotta on May 20, 1971, was Congressionally intended as an administrative remedy for the wrong she is alleged to have suffered and, in that regard, whether personal relief was available to plaintiff Schotta through that channel. Those memoranda have been received and the remainder of the motion is now ripe for disposition.

In direct response to the Court's previous inquiry, plaintiff Schotta asserts that complaints of discrimination to HEW, rather than being Congressionally intended, were contemplated under the mechanism established pursuant to Executive Order 11246 (September 24, 1965, 30 Fed.Reg. 12319), as amended by Executive Order 11375 (October 13, 1967, 32 Fed.Reg. 14303).¹ She contends that the Office of Federal Contract Compliance (OFCC) in the Department of Labor is charged with overall supervision over enforcement of the Order's provisions, that HEW is one of fifteen agencies selected by OFCC to insure compliance, and that HEW's jurisdiction includes complaints of discrimination by academic and non-academic employees of educational institutions. Plaintiff Schotta further alleges that when her complaint was filed in 1971, OCR was responsible, within HEW, for investigating and rectifying both individual and class complaints of discrimination.

With regard to the nature of the remedies available to her through this procedure, plaintiff Schotta suggests an examination of the enforcement mechanism provided in Subpart D of Executive Order 11246, Part II, indicates redress was available. She contends that the major weapons wielded by the Secretary of Labor and the compliance agencies to achieve nondiscrimination and affirmative action by federal contractors were the power to cancel, terminate and suspend federal contracts, pursuant to Section 209(a)(5), and the power to refer substantial or material violations to the Department of Justice for suit, pursuant to Section 209(a) (2). Plaintiff Schotta further suggests that it is the threat of contract termination and referral, not previously provided under precursor's of Executive Order 11246, as amended, which gives compliance agencies, such as HEW, the leverage necessary to fashion a remedy for individual complaints through the mechanism of Section 209(b), which states:

Under rules and regulations prescribed by the Secretary of Labor, each contracting agency shall make reasonable efforts within a reasonable time limitation to secure compliance with the contract provisions of this Order by methods of conference, conciliation, mediation, and persuasion before proceedings shall be instituted under Subsection (a)(2) of this Section, or before a contract shall be cancelled or terminated in whole or in part under Subsection (a)(5) of this Section for failure of a contractor or subcontractor to comply with the contract provisions of this Order.

Plaintiff Schotta asserts that in her first contact with HEW concerning his complaint, her letter of May 24, 1971 to Dr. Eloise Severinson, Regional Director of OCR, she left no doubt that it was personal relief she was seeking when she stated that her "particular goals are: promotion to associate professor which was discriminatorily denied me, tenure which was discriminatorily denied me and back pay." She also submits numerous pieces of correspondence in which reference is made to her individual complaint and the fact that OCR was proceeding to review Virginia Polytechnic Institute (VPI) compliance with Executive Order 11246, as amended, at least in part on the basis of her complaint.²

Finally, plaintiff Schotta attaches to her memoranda a sworn affidavit from Ronald R. Gilliam, Deputy Regional Civil Rights Director of the Office for Civil Rights, Region III, HEW, in which he states that, as a part of his regular duties, he is involved in the investigation of sex discrimination complaints filed by female university employees against universities that receive federal funds. Noting that his office was still in the process of investigating plaintiff Schotta's complaint of May 20, 1971 against VPI, the affiant stated:

Without reflecting on the merits of Dr. Schotta's claims, it is the aim of this office to seek, where appropriate, remedies including back pay, reinstatement, tenure, lost wages, interest, adjustment in salary, promotion, compliance expenses (legal fees), and guarantees concerning future treatment for those complainants who this office finds have suffered from institutions' employment practices in violation of . . . Executive Orders 11246 and 11375. Should Dr. Schotta be found to have suffered discrimination on the basis of sex in violation of Executive Order 11246, as amended, this office will attempt by virtue of its contract compliance responsibilities to negotiate with the university in order to achieve appropriate relief for her grievances.

Defendants, responding to plaintiff Schotta's contention, argue that an individual complainant is not a party to any action taken by the Government under Executive Order 11246. They allege that Executive Order 11246 creates no obligation on the part of the Government to investigate a complaint and provides no mechanism giving an individual a right to proceed under its terms. Defendants contend, therefore, that Executive Order 11246 provides no individual remedy, although federal agencies have adopted regulations by which they receive the right to order conciliation on behalf of individuals.³

On the basis of the memoranda and evidence submitted therewith, the Court concludes that plaintiff Schotta's complaint to HEW was an available, albeit non-mandatory, administrative procedure for her to have followed to seek redress for the alleged discrimination she suffered through VPI's termination of her employment. There remains, however, the critical question with regard to defendants' motion to dismiss which is whether the filing of plaintiff Schotta's complaint with HEW tolled the statute of limitations applicable to her filing of the instant civil rights suit.

Historically, periods of limitations have on occasion been described as established to cut off rights, justifiable or not, which might otherwise be asserted and as requiring strict adherence by the judiciary. Kavanagh v. Noble, 332 U.S. 535, 539, 68 S.Ct. 235, 92 L.Ed. 150 (1947). In recent years, however, a marked preference has attached to the view that statutory limitations are primarily designed to assure fairness to defendants and that they "promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared." Burnett v. New York Central R. Co., 380 U.S. 424, 428, 85 S.Ct. 1050, 1054, 13 L.Ed.2d 941 (1965), citing Order of Railroad Telegraphers v. Railway Express Agency, Inc., 321 U.S. 342, 348-349, 64 S.Ct. 582, 88 L.Ed. 788 (1944). While this is, of course, not to suggest that a limitation period is to be lightly regarded, a judicial power, which may be exercised under appropriate circumstances, clearly exists to toll statutes of limitations in federal courts. See American Pipe & Construction Co. v. Utah, 414 U.S. 538, 558, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974). Moreover, this authority has been exercised on a number of occasions where administrative remedies created by either the states,⁴ congressional enactment,⁵ or private contractual agreement⁶ have been diligently pursued in a constructive effort to obtain a settlement prior to the institution of a federal suit.

In Mizell v. North Broward Hospital District, supra, plaintiff, a surgeon, alleged violations of his constitutional rights in the defendants' suspension of his surgical privileges nearly six years prior to the institution of his civil rights suit in 1967. During the interim period, however, plaintiff pursued state administrative and judicial review procedures challenging both his suspension and the defendants' refusal to grant him reinstatement. In remanding to the trial court for consideration of whether, under these circumstances, the statute of limitations was tolled as to the overt act of suspension in 1961, the Fifth Circuit offered this guidance:

Having in mind the salutary rule that under our system of federalism aggrieved persons should be encouraged to utilize state procedures before appealing to federal courts . . ., we are persuaded that in cases arising under the constitution or laws of the United States, a federal rule on tolling a state statute of limitations (when applicable) should be observed, if such rule clearly carries out the intent of Congress or of the constitutional principle at stake. 427 F.2d at 474.

While Mizell was, in large measure, decided upon principles of federalism, the Fifth Circuit placed...