Truvillion v. King's Daughters Hosp.

• Decision Date: 28 March 1980
• Docket Number: No. 77-2941,77-2941
• Citation: 614 F.2d 520
• Parties: 22 Fair Empl.Prac.Cas. 554, 22 Empl. Prac. Dec. P 30,798 Mrs. Shirley Baker (TRUVILLION), Plaintiff-Appellant, v. KING'S DAUGHTERS HOSPITAL, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 520

614 F.2d 520

22 Fair Empl.Prac.Cas. 554,

22 Empl. Prac. Dec. P 30,798

Mrs. Shirley Baker (TRUVILLION), Plaintiff-Appellant, v. KING'S DAUGHTERS HOSPITAL, Defendant-Appellee.

No. 77-2941.

United States Court of Appeals, Fifth Circuit.

March 28, 1980.

John L. Walker, Phillip J. Brookins, Jackson, Miss., for plaintiff-appellant.

Vella M. Fink, E. E. O. C., Washington, D. C., for amicus curiae.

M. Curtiss McKee, Armin J. Moeller, Jr., Jackson, Miss., for defendant-appellee.

Appeal from the United States District Court for the Southern District of Mississippi.

Before WISDOM, TJOFLAT, and REAVLEY, Circuit Judges.

WISDOM, Circuit Judge:

This is a job discrimination case. Count I of the complaint raises the question whether, in the unusual circumstances this case presents, the plaintiff may bring suit under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000 et seq. The Equal Employment Opportunity Commission (E.E.O.C.) had previously brought a Title VII suit on behalf of Ms. Shirley B. Truvillion, the charging party, and others similarly situated, seeking the same relief Ms. Truvillion now seeks in the instant suit. The district court dismissed Suit I because of the E.E.O.C.'s failure to comply with preconditions (termed "jurisdictional") requisite to the court's going forward to determine the substantive claim. The first prerequisite was compliance with the requirement of the Commission's regulation, 29 C.F.R. § 1601.23 (1974), that it notify the respondent promptly in writing of its unsuccessful attempt to obtain a conciliation agreement. Federal agencies, of course, must obey their own regulations. The second prerequisite was a good faith investigation of the charges, particularly including consideration of the qualifications of the charging party for the job for which she was rejected. The court concluded therefore that the E.E.O.C. had failed to establish a prima facie case of racial discrimination as defined by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 1973, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668. In the action now before us, Suit II, the district court granted summary judgment for the defendant on the ground that the earlier judgment was res judicata as to the plaintiff's Title VII claim. We hold that the district court erred in applying the res judicata doctrine; the court in the earlier case never reached the merits of the complaint.

Count II of the complaint was brought under the Civil Rights Act of 1870, 42 U.S.C. § 1981. We hold that the district court erred in applying the Mississippi three year statute of limitations, applicable to unwritten contracts, rather than the Mississippi six year catch-all statute, applicable to actions not covered specifically by a statute of limitations.

I.

In October 1972 Ms. Shirley Baker Truvillion filed charges with the E.E.O.C. alleging that King's Daughters Hospital in Lincoln County, Mississippi, had refused to hire her as a laboratory technician because of her race. The Commission sent the hospital a letter noting that it found reasonable cause to believe that the hospital had discriminated against Ms. Truvillion. The letter further noted that the hospital practiced discrimination by maintaining segregated departments, classifying jobs by race and sex, and engaging in recruitment policies that effectively excluded minority group applicants.

Ms. Truvillion received a copy of the letter. She also spoke to E.E.O.C. personnel on several occasions about possible conciliation with the hospital. In November 1974 the E.E.O.C. notified her that her "charge of racial discrimination was being forwarded to the Equal Employment Opportunity Commission Litigation Center in Atlanta, Georgia, for possible suit".

In January 1975, the E.E.O.C. filed suit against the hospital (Suit I) under Section 706(f)(1) of Title VII of the Civil Rights Act, as amended, 42 U.S.C. § 2000e-5(f)(1). ¹ Ms. Truvillion did not learn of the suit until she telephoned the Commission's Atlanta Litigation Center. She called back several times, and was told that the suit was still pending, but at no time was she informed of her right to intervene. Since she repeatedly received similar reports on the suit's progress, she stopped calling and relied on the E.E.O.C. to inform her as to the status of the proceedings. ²

The district court entered summary judgment against the Commission in February 1976 "for failure of the E.E.O.C. to meet the jurisdictional prerequisites to suit." 12 FEP Cases 484. The court found, first, that the E.E.O.C. had not complied with its own regulation, 29 C.F.R. § 1601.23, which requires that the Commission give written notice to respondent, the hospital, that conciliation efforts had failed and would not be resumed except upon request. Second, the court found that the Commission had not made a "good faith investigation" to determine whether the charging party was qualified for the job she was seeking. Under McDonnell Douglas this was an essential link to establish a prima facie case of racial discrimination.

The E.E.O.C. neither appealed nor informed Ms. Truvillion about the judgment. Instead, eight months later, in October 1976, the Commission on its own initiative sent her a right-to-sue letter. The letter stated that the E.E.O.C. would not proceed with the case, and informed her that she could bring her own action within 90 days of receiving the letter. ³

Ms. Truvillion brought suit in January 1977 on her own behalf and on the behalf of all those similarly situated. ⁴ Seeking relief under Title VII and 42 U.S.C. § 1981, Ms. Truvillion alleged that the hospital had denied her and other black persons equal employment opportunities because of race.

The district court granted the hospital's motion for summary judgment against Ms. Truvillion in Suit II. The court's decision on her Title VII claim is based on three holdings. First, the "summary judgment granted by the court in the prior suit is considered a final judgment on the merits" and because Ms. Truvillion was in privity with the E.E.O.C. "she is subject to the res judicata effect of the prior judgment". Second, the filing by the E.E.O.C. of Suit I cut off Ms. Truvillion's private right of action under the statute. She waived her statutory rights by failing to intervene in Suit I. Third, the E.E.O.C. could not issue her a valid right-to-sue letter after having brought Suit I. Because the receipt of a valid right-to-sue letter is a "jurisdictional" prerequisite to a private Title VII suit, the court concluded that it lacked "jurisdiction" over Ms. Truvillion's Title VII claim.

The court found that Ms. Truvillion's claim based on Section 1981 was barred by the statute of limitations. In the absence of a special federal statute of limitations, the court turned to state law and, reasoning that her Section 1981 claim was on an unwritten employment contract, applied the Mississippi statute of limitations that governs such actions. The limit is three years. ⁵ Ms. Truvillion's Section 1981 claim was brought four years and three months after the Hospital rejected her application for employment.

II.

A.

We consider first the district court's determination that the judgment in Suit I is a bar to Ms. Truvillion's Title VII claim. We hold that the district court misapplied the doctrine of res judicata. ⁶

A recent decision of our court states the accepted doctrine of res judicata:

For a prior judgment to bar an action on the basis of res judicata, the parties must be identical in both suits, the prior judgment must have been rendered by a court of competent jurisdiction, there must have been a final judgment on the merits and the same cause of action must be involved in both cases.

Kemp v. Birmingham News Co., 5 Cir. 1979, 608 F.2d 1049 at 1052. Contrary to the district court's view, there was no judgment on the merits in Suit I. The requirements of E.E.O.C.'s notice to the respondent and a good faith investigation by the E.E.O.C. in a loose sense might be treated as jurisdictional. They are, however, nothing more than procedural prerequisites to the court's determination of the substantive issues. They do not touch the merits.

(1) The E.E.O.C. notice protects the employer by warning him of his last chance to obtain an amicable resolution of the E.E.O.C.'s complaint. E.E.O.C. v. Western Electric Co. Inc., D.Md.1974, 382 F.Supp. 787, 796. The court reasoned correctly that if notice was imperfect, attempts had not yet "failed" within the meaning of § 706(f)(1) of Title VII. Because notice signals a failure at conciliation and such failure triggers the E.E.O.C.'s authorization to sue, notice is a prerequisite to suit. E.E.O.C. v. Container Corp. of America, M.D.Fla.1972, 352 F.Supp. 262, 265. See E.E.O.C. v. Louisville & Nashville R. Co., 5 Cir. 1974, 505 F.2d 610, 617. Its absence therefore requires dismissal of the complaint.

But such a dismissal does not involve the substantive claim of discrimination. Essentially the dismissal was based upon the failure of the E.E.O.C. to comply with its own regulation.

Even if the prerequisites were considered jurisdictional, the judgment in Suit I did not operate as an adjudication on the merits. Under Rule 41(b), Fed.R.Civ.P., a dismissal, "except for lack of jurisdiction (or) venue", or failure to join a necessary party, "operates as an adjudication upon the merits" unless the court specifies that the dismissal is without prejudice. The Supreme Court has characterized as "jurisdictional", for purposes of Rule 41(b), "those dismissals which are based on a plaintiff's failure to comply with a precondition requisite the Court's going forward to determine the merits of his substantive claim". Costello v. United States, 1961, 365 U.S. 265, 285, 81 S.Ct. 534, 545, 5 L.Ed.2d 551. See also Stebbins v. Nationwide Mutual Ins. Co., 4 Cir. 1975, 528 F.2d 934, 937, cert. denied, 1976, 424 U.S. 946, 96 S.Ct. 1417, 47 L.Ed.2d 353; Stebbins v....