Vogel v. Torrance Bd. of Ed.

• Decision Date: 01 March 1978
• Docket Number: No. CV 77-4023-AAH.,CV 77-4023-AAH.
• Citation: 447 F. Supp. 258
• Court: U.S. District Court — Central District of California
• Parties: Frances VOGEL, Plaintiff, v. TORRANCE BOARD OF EDUCATION, Torrance Unified School District, Naomi Leavitt, Stanley Dunn, Dorothy Baker, Dr. Owen Griffith, Dr. Robert McLemore, Defendants.

447 F. Supp. 258

Frances VOGEL, Plaintiff, v. TORRANCE BOARD OF EDUCATION, Torrance Unified School District, Naomi Leavitt, Stanley Dunn, Dorothy Baker, Dr. Owen Griffith, Dr. Robert McLemore, Defendants.

No. CV 77-4023-AAH.

United States District Court, C. D. California.

March 1, 1978.

Geffner & Satzman by Judy Rochlin, Los Angeles, Cal., for plaintiff.

Paul, Hastings, Janofsky & Walker by Robert F. Walker, Los Angeles, Cal., and

McKay, Byrne & Udkovich by Gail D. Solo, Los Angeles, Cal., for defendants.

DECISION GRANTING SUMMARY JUDGMENT

HAUK, District Judge.

This sex discrimination case involves claims by the plaintiff, Frances Vogel, a part-time campus aide at Torrance High School, that the Torrance Unified School District, the Torrance Board of Education, and the individual members of the Torrance Board of Education¹ discriminated against her because of her sex. Specifically, plaintiff alleges that male campus aides earn higher wages, receive more hours of work, receive better fringe benefits, and obtain more favorable treatment with respect to hiring, promotion, and transfer.² In addition, plaintiff alleges that the defendants have refused to take affirmative action to correct their past discriminatory practices and policies.³ Plaintiff alleges that she filed a complaint with the EEOC on November 1, 1972, and that the EEOC sent her a "right-to-sue" letter on August 1, 1977.⁴ Plaintiff bases this suit on provisions of the Civil Rights Act of 1866, as amended, 42 U.S.C. § 1981, Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., and the Fourteenth Amendment and seeks both injunctive relief and damages.⁵

Defendant Torrance Unified School District⁶ (hereinafter "defendant") has moved to dismiss the complaint, or, in the alternative, for summary judgment. Defendant offers several reasons for the granting of these motions. Defendant also moves, in the event the Court does not grant either the motion to dismiss or the motion for summary judgment, to strike certain portions of the complaint as irrelevant.

After full consideration of all of the pleadings and affidavits filed by all parties, and the arguments thereof, the Court finds that most of the defendant's arguments are meritorious. The Court treats the instant motion as a motion for summary judgment,⁷ finds that no material question of fact or law exists, and grants the defendant's motion for summary judgment for the following reasons:

(1) 42 U.S.C. § 1981 does not encompass sex discrimination;

(2) the relevant statute of limitations bars plaintiff's Title VII claim;

(3) the relevant statute of limitations bars plaintiff's Fourteenth Amendment claim;

(4) plaintiff's Fourteenth Amendment claim, even if not barred by the statute of limitations, fails to state a claim upon which relief could be granted because it does not allege purposeful discrimination and none can be inferred; and

(5) plaintiff failed to name the individual defendants in her EEOC complaint.

Because of this disposition of the case, the Court finds it unnecessary to rule on defendant's motion to strike. In addition, the Court denies defendant's request for attorneys' fees.

I. Applicability of § 1981 to Sex Discrimination Claim

Defendant's initial argument is that 42 U.S.C. § 1981, one of the grounds upon which plaintiff's action relies,⁸ does not encompass sex discrimination. This contention is absolutely correct.

The language of 42 U.S.C. § 1981⁹ addresses race discrimination, not sex discrimination. Numerous cases within the Ninth Circuit have held that § 1981 does not cover discrimination based on sex. E. g., Zubero v. Memorex, 12 F.E.P. Cases 604 (N.D.Cal. 1976); Waters v. Heublein, 8 F.E.P. Cases 908 (N.D.Cal.1974); League of Academic Women v. Regents of the University of California, 343 F.Supp. 636, 638-40 (N.D. Cal.1972); Williams v. San Francisco Unified School District, 340 F.Supp. 438, 440 (N.D.Cal.1972); National Organization of Women v. Bank of California, 6 F.E.P. Cases 26 (N.D.Cal.1972).¹⁰ Therefore, the Court grants summary judgment to the defendant on plaintiff's § 1981 claim.

II. Statute of Limitations on Title VII Claim

Defendant also contends that the statute of limitations applicable in Title VII litigation in federal courts in California bars this action insofar as the Title VII claim is concerned. The Court agrees with this contention and grants summary judgment in favor of the defendant on plaintiff's Title VII claim.

Title VII of the Civil Rights Act of 1964, as amended, does not contain its own statute of limitations. In determining the relevant statute of limitations on a private individual's Title VII Federal District Court action, the Court must look to the state statute of limitations applicable in similar litigation brought under state law of the state in which the district court sits. EEOC v. Occidental Life Insurance Co., 535 F.2d 533, 537 (9th Cir. 1976), aff'd, 432 U.S. 355, 97 S.Ct. 2247, 53 L.Ed.2d 402 (1977) (EEOC as plaintiff); Clayton v. McDonnell Douglas Corp., 419 F.Supp. 28, 29 (C.D.Cal.1976), appeal pending, No. 77-3225 (9th Cir. 1977) (private party as plaintiff). See also Johnson v. Railway Express Agency, 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975). Under California law, the statutes of limitations possibly relevant to a Title VII claim are Code of Civil Procedure § 340(3) (one-year statute for injuries caused by the wrongful act of another),¹¹ § 338(1) (three-year statute for actions brought upon a statute),¹² and § 343 (four-year statute for actions not otherwise provided for).¹³

With regard to the statute of limitations defense in Title VII litigation, the determinative question is often, and is here, whether the filing of an EEOC claim by a plaintiff tolls the relevant statute of limitations. At least three recent Central District cases have been held that the filing of an EEOC claim does not toll the relevant statute of limitations; hence, the statute runs continuously from the date of the allegedly discriminatory acts. Jarrett v. Rockwell International Corp., 433 F.Supp. 275 (C.D.Cal.1977); Kirk v. Rockwell International Corp., 432 F.Supp. 627 (C.D.Cal. 1977), appeal pending, No. 77-2640 (9th Cir. 1977); Clayton v. McDonnell Douglas Corp., 419 F.Supp. 28 (C.D.Cal.1976), appeal pending, No. 77-3225 (9th Cir. 1977). While these cases did not specifically hold which California limitations period should apply in a Title VII suit, each of the three cases did hold that even the three-year statute of limitations set forth in Code of Civil Procedure § 338(1), the period most favorable to the plaintiffs, would bar the plaintiffs' claims in those three cases.¹⁴

In this case, plaintiff's complaint does not allege any specific dates upon which allegedly discriminatory acts occurred. The complaint does state, however, that the plaintiff filed an EEOC complaint on November 1, 1972; thus, the Court must find that the allegedly discriminatory acts occurred on or before that date.¹⁵ Since the plaintiff did not file this action until October 27, 1977, approximately five years have passed since the allegedly discriminatory acts. Consequently, under the rule set forth in the Jarrett, Kirk, and Clayton cases discussed above, the relevant statute of limitations, whether one year, three years, or four years, bars plaintiff's Title VII claim, even though the plaintiff brought this suit within the 90-day period specified by the EEOC in its letter to the plaintiff on August 4, 1977.

Plaintiff argues that this result is unfair because the EEOC has just told her that she had 90 days within which to bring suit in district court and she did bring suit within the 90-day period. Furthermore, she argues, she should not be penalized because the EEOC took nearly five years to send her a "right-to-sue" letter. While these claims possess superficial appeal, the Court wishes to point out the countervailing considerations to the plaintiff. First, plaintiffs in Title VII cases have the right to demand a final response from the EEOC 180 days after the filing of their EEOC complaint. 42 U.S.C. § 2000e-5(f)(1);¹⁶ 29 C.F.R. § 1601.25b(c) (1977).¹⁷See Occidental Life Insurance Co. v. EEOC, 432 U.S. 355, 361, 97 S.Ct. 2247, 53 L.Ed.2d 402 (1977); Johnson v. Railway Express Agency, 421 U.S. 454, 458, 95 S.Ct. 1716, 44 L.Ed.2d 495 (1975). Second, the EEOC must make an initial determination of the validity of a plaintiff's claim "as promptly as possible and, so far as practicable, not later than one hundred and twenty days from the filing of the charge." 42 U.S.C. § 2000e-5(b).¹⁸See Occidental Life Insurance Co. v. EEOC, 432 U.S. 355, 359, 97 S.Ct. 2247, 53 L.Ed.2d 402 (1977). Utilizing these administrative procedures should enable a diligent plaintiff to bring a Title VII action in the federal courts within the probably applicable three-year statute of limitations period. Third, as Judge Williams pointed out in Clayton, employers are entitled to some degree of certainty regarding possible employment discrimination claims against them. 419 F.Supp. at 29. Fourth, in extreme cases, a Federal District Court may compel action by the EEOC on a plaintiff's claim. EEOC v. Occidental Life Insurance Co., 535 F.2d 533, 540, aff'd, 432 U.S. 455, 97 S.Ct. 2247, 53 L.Ed.2d 402 (1977). Thus, the policy considerations underlying the rule set forth in Jarrett, Kirk and Clayton are not as one-sided as plaintiff would have the Court believe; from a public policy standpoint, the result may not be unfair at all. Indeed, Courts in other Districts have also adopted this same rule regarding tolling. See, e. g., Patterson v. American Tobacco Co., 535 F.2d 257, 275 (4th Cir. 1976); Person v. St. Louis-San Francisco Ry., 428 F.Supp. 1148, 1149 (W.D.Okla.1976).

III. Statute of Limitations on the Fourteenth Amendment Claim

As already discussed, the Court must look to the most nearly analogous state statute of limitations in the absence of any federal s...