Tolbert v. Daniel Construction Company

• Decision Date: 09 September 1971
• Docket Number: Civ. A. No. 71-267.
• Citation: 332 F. Supp. 772
• Court: U.S. District Court — District of South Carolina
• Parties: Calvin H. TOLBERT, Plaintiff, v. DANIEL CONSTRUCTION COMPANY, Defendant.

332 F. Supp. 772

Calvin H. TOLBERT, Plaintiff, v. DANIEL CONSTRUCTION COMPANY, Defendant.

Civ. A. No. 71-267.

United States District Court, D. South Carolina, Greenville Division.

September 9, 1971.

John B. Culbertson, Greenville, S. C., for plaintiff.

Joseph Ray Terry, Jr., Atlanta, Ga., for Equal Employment Opportunity Commission, amicus curiae.

James J. Baldwin, Greenville, S. C., for defendant.

ORDER

BLATT, District Judge.

The plaintiff filed his original complaint on March 22, 1971, alleging that the defendant's refusal to hire him in December of 1966 was because of his race and was, therefore, a violation of Title VII of the Civil Rights Act of 1964 42 U.S.C. § 2000e et seq.. The defendant filed a timely motion to dismiss, and the plaintiff then filed an amended complaint. His amended complaint alleges (1) a cause of action under the Civil Rights Act of 1866 42 U.S.C. § 1981 as well as under Title VII of the 1964 Civil Rights Act, (2) that the suit is brought as a class action "* * * on behalf of all present and potential black employees and applicants for employment at defendant sic job sites throughout the United States,"¹ (3) that the defendant not only refused to hire him but also that the defendant later hired him and then fired him because of his race, and (4) that the defendant discriminated against him and the class he claims to represent in initial hiring assignments, promotions and terms and conditions of employment.

The defendant responded to the amended complaint by filing an amended motion to dismiss. This motion came on for hearing on September 1, 1971.

In its motion, the defendant contended that (1) the plaintiff's cause of action under Title VII should be dismissed because it had not been timely filed, (2) the plaintiff's cause of action under 42 U.S.C. § 1981 should also be dismissed, (3) the action should not be allowed to proceed as a class action because the plaintiff fails to meet the prerequisites of Rule 23 of the Federal Rules of Civil Procedure, and (4) that certain allegations, primarily the one concerning the plaintiff's alleged discharge by the defendant, should be stricken from the complaint. On these points the court heard lengthy oral argument from counsel for the plaintiff and counsel for the defendant, as well as from an attorney from the Equal Employment Opportunity Commission, which had been granted leave to participate as amicus curiae. The points raised by the defendant's amended motion will be discussed in the order in which they are listed above.

I. The Title VII Claim. The Plaintiff filed a charge of discrimination with the EEOC, dated January 17, 1967, in which he complained that the defendant had refused to hire him, in December, 1966, because of his race. By letter dated November 16, 1967, the plaintiff was notified of his "right to sue", within thirty days, on the basis of the EEOC's failure to achieve voluntary compliance with the defendant concerning the charge. The plaintiff then requested that counsel be appointed to represent him in the matter, and the court issued an order appointing counsel on December 11, 1967. This action was not commenced, however, until March 22, 1971, when the plaintiff filed his original complaint.

In its brief the EEOC cited numerous cases to support its argument that a Title VII plaintiff, who has requested appointed counsel within the thirty-day statutory limitations period,² has complied with that statute of limitations, even if the suit itself was not formally initiated until after the thirty-day period had expired. In none of the cases cited, however, have those plaintiffs delayed the filing of suit for as much as three years and four months, as is the situation in this case.³ In Prescod v. Ludwig Industries, 325 F.Supp. 414 (N. D.Ill.1971) for example, the complaint was filed approximately a month and a half after the thirty-day period had expired. In another case, similar to the case at bar, the plaintiff, after requesting appointed counsel within the thirty-day statutory period, did not file his complaint until a reasonably short period⁴ after the thirty-day period had expired. Reyes v. Missouri-Kansas-Texas R.R. Co., 53 F.R.D.2d 293 (D.C.Kan. 1971). There the court held that the filing of a complaint "within a reasonable time" after appointed counsel was requested by the plaintiff, constitutes substantial compliance with Title VII.

In this case, the plaintiff did not file his complaint until about three years and four months after he had requested appointed counsel. Such a long delay does not appear reasonable under the circumstances. Therefore, the plaintiff has failed to comply with the statutory limitation period under Title VII. For this reason, the defendant's motion to dismiss the plaintiff's claim under Title VII will be granted.

II. The Claim Under 42 U.S.C. § 1981. The plaintiff amended his original complaint to, among other things, allege a cause of action under the Civil Rights Act of 1866 42 U.S.C. § 1981.⁵ This old Act contains no procedural requirements whatever for bringing suit under it. Thus, the plaintiff contends that, whatever are his procedural failures under Title VII, he may still maintain a cause of action under § 1981. The defendant contends that a plaintiff, suing for alleged private employment discrimination, cannot resort to § 1981 after he finds that his procedural omissions are fatal to his Title VII claim, unless he can establish a "reasonable excuse" for his failures under Title VII.

Apparently, three Circuits have considered the availability of 42 U.S.C. § 1981 to a person alleging private employment racial discrimination. Two of those Circuits would allow such a plaintiff unconditional access to § 1981. Young v. International Tel. & Tel. Co., 438 F.2d 757 (3d Cir.1971); Caldwell v. National Brewing Co., 443 F.2d 1044 (5th Cir. 1971). The Seventh Circuit, however, has determined that federal courts do not have subject matter jurisdiction over plaintiffs alleging private employment racial discrimination under § 1981 unless such plaintiffs allege and prove that they have a "reasonable excuse" for failing to comply with the jurisdictional prerequisites under Title VII. Waters v. Wisconsin Steel Works, 427 F. 2d 476 (7th Cir.1970). This court, on the basis of the authority cited above, holds that § 1981 creates for the plaintiff a separate and independent cause of action, which is, without doubt, available to him since he has established a "reasonable excuse" for his failure to comply with the jurisdictional prerequisites under Title VII. Here the plaintiff himself was not responsible for the long delay in the filing of this action. The defendant's motion to dismiss the plaintiff's claim under 42 U.S.C. § 1981 is, therefore, denied.

III. The Class Action Allegation. In the amended complaint, the plaintiff alleges that he is suing "* * * on behalf of all present and potential black employees and applicants for employment at defendant sic job sites throughout the United States."⁶ The defendant contends that the class action allegation should be stricken because the plaintiff fails to meet the prerequisites under Rule 23 of the Federal Rules of Civil Procedure.

According to the plaintiff's deposition, he has worked for the defendant only in its brick mason crews. Moreover, his last contact with the defendant was approximately three years ago, in November, 1968, when he worked for only one week. Under such circumstances, it appears that the plaintiff is not in a position to fairly and adequately protect the interests of the class, as required by Rule 23(a) (4) of the Federal Rules of Civil Procedure.

In 1970, a court in this district ruled on a class question very similar to this one. Brewster v. Winn-Dixie Stores, Inc., Civil Action 70-296 (Order filed September 11, 1970). There the plaintiff, who had been discharged nearly three years prior to the time he brought suit under Title VII, claimed to represent a class composed of the defendant's current and future employees. The court dismissed the class action allegation of the complaint finding that the plaintiff could not fairly and adequately represent the class.

In another case similar to the one at bar, a Connecticut District Court was faced with a situation where a Title VII plaintiff, bringing a class action, had not been employed by the defendant since his voluntary...