Walker v. Jim Dandy Co.

• Citation: 638 F.2d 1330
• Decision Date: 13 March 1981
• Docket Number: No. 78-2652,78-2652
• Parties: 25 Fair Empl.Prac.Cas. 649, 25 Empl. Prac. Dec. P 31,659 Willie M. WALKER, Willie Rhoades and Bobbie P. Lowery, Plaintiffs-Appellants, v. The JIM DANDY COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1330

638 F.2d 1330

25 Fair Empl.Prac.Cas. 649,

25 Empl. Prac. Dec. P 31,659

Willie M. WALKER, Willie Rhoades and Bobbie P. Lowery Plaintiffs-Appellants, v. The JIM DANDY COMPANY, Defendant-Appellee.

No. 78-2652.

United States Court of Appeals Fifth Circuit.

March 13, 1981.

Linda F. Thome, Washington, D. C., Susan Reeves, Birmingham, Ala., Diane P. Wood, Washington, D. C., for plaintiffs-appellants.

Constangy Brooks & Smith, Chris Mitchell, Birmingham, Ala., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Alabama.

Before HILL and POLITZ, Circuit Judges and O'KELLEY, ^* District Judge.

HILL, Circuit Judge:

Willie Walker, a black man, and Willie Rhoades and Bobbie Lowery, two white women, brought this class action under 42 U.S.C. § 2000e et seq., seeking relief from the alleged racially and sexually discriminatory employment practices of the Jim Dandy Company. The district court granted Jim Dandy's motion for partial summary judgment against Walker, concluding that (1) his § 1981 suit was barred by the statute of limitations and (2) because he had not filed a formal charge with the Equal Employment Opportunity Commission within the statutorily prescribed period, the court did not have jurisdiction to hear his Title VII claim. The district court would not certify the class, and therefore only the individual claims of Rhoades and Lowery were tried. Judgment for Jim Dandy was entered on those claims. We reverse the district court's decision concerning Walker's Title VII claim, affirm its judgment on Rhoades' and Lowery's individual claims, and remand the class certification issue for further consideration.

I. Walker

Appellant Willie Walker was employed in Jim Dandy's dog food packaging department. He was discharged on January 4, 1971. Believing that the firing was racially motivated, Walker filed a charge with EEOC on April 20, 1971, 106 days after the alleged discriminatory act. On May 30, 1974, the EEOC issued a right to sue letter. Walker commenced this action in August of 1974, alleging violations of Title VII and 42 U.S.C. § 1981. Jim Dandy's motion for summary judgment was granted, the court finding that the § 1981 claim was barred by the statute of limitations and that it did not have jurisdiction to hear the Title VII claim because of Walker's failure to file a charge with the EEOC within 90 days of his discharge. The only issue before this panel is whether the court erred in dismissing Walker's Title VII claim. ¹

The district court correctly noted that failure to file a timely charge with the EEOC is a jurisdictional defect. United Air Lines, Inc. v. Evans, 431 U.S. 553, 555 n.4, 97 S.Ct. 1885, 1887, n.4, 52 L.Ed.2d 571 (1977); Alexander v. Gardner-Denver Co., 415 U.S. 36, 47, 94 S.Ct. 1011, 1019, 39 L.Ed.2d 147 (1974). At the time Walker filed his charge, the applicable limitations period was 90 days. 42 U.S.C. § 2000e-5(d). The amendments to Title VII, effective March 24, 1972, extended the limitations period to 180 days. 42 U.S.C. § 2000e-5(e) as amended by Pub.L. No. 92-261, § 4, 86 Stat. 103. Since Walker's charge was filed 106 days after he was fired, it was timely only if the 1972 amendments apply.

A similar, but not identical, situation was presented to the Supreme Court in International Union of Electrical Workers, Local 790 v. Robbins & Myers, Inc., 429 U.S. 229, 97 S.Ct. 441, 50 L.Ed.2d 427 (1976). There, the plaintiff's charge had been filed on February 10, 1972, 108 days after the alleged discriminatory act and less than 180 days prior to the effective date of the amendments. Id. at 241, 97 S.Ct. at 449. Relying on § 14 of the Equal Employment Opportunity Act of 1972, which makes the 1972 amendments applicable to cases pending with the EEOC on the date of enactment, the Court held that the 180 day period is applicable "where the charge was filed with the EEOC prior to March 24, 1972, and alleged a discriminatory occurrence within 180 days of the enactment of the Act." Id. at 243, 97 S.Ct. at 450 (footnote omitted). The question specifically left open by the court was whether the 180 day period also applies where the discriminatory act occurred more than 180 days before enactment. Id. at 243 n.17, 97 S.Ct. at 450 n.17. That is precisely the question before this panel.

While this is the first occasion for this court to consider the question left open in Robbins & Myers, a number of courts already have had the opportunity to do so. The unanimous view of those courts is that the expanded limitations period applies to charges pending on the date of enactment regardless of when the discriminatory act occurred. See McDonald v. United Air Lines, Inc., 587 F.2d 357, 361 n.10 (7th Cir. 1978); Wood v. Southwestern Bell Telephone Co., 580 F.2d 339, 342 (8th Cir. 1978); Inda v. United Air Lines, Inc., 565 F.2d 554, 561 (9th Cir. 1977); Dickerson v. United States Steel Corp., 439 F.Supp. 55, 69 n.11 (E.D.Pa.1977). Nothing in the legislative history of the amendments or Robbins & Myers gives us reason to believe that the date of the discriminatory act should be considered crucial in determining the retroactive effect of the amendments. Thus, we hold that where the charge was filed less than 180 days from the date of the discriminatory act and was pending on the effective date of the 1972 amendments, it must be considered to have been timely filed. ²

Walker filed his charge 106 days after he was fired. Since the EEOC did not issue a right to sue letter until May 30, 1974, it is clear that the charge was still pending on March 24, 1972. ³ We therefore find that the district court erred when it dismissed Walker's claim on jurisdictional grounds.

II. Lowery & Rhoades

In November of 1971, Jim Dandy placed a job order with the Alabama State Equipment Agency for two rail shipping foremen. Lowery and Rhoades, both of whom are women, were notified of the openings by the agency and submitted applications to Jim Dandy. Both were interviewed by the plant manager and neither one was offered employment. Shortly thereafter, Lowery and Rhoades filed charges with the EEOC, alleging that they were rejected because of their sex. The EEOC found that Jim Dandy had violated Title VII, and issued a right to sue letter.

Lowery and Rhoades commenced this suit individually and on behalf of all others similarly situated. Their request for class certification was denied by the district court. After a non-jury trial on the individual claims, the court entered judgment for Jim Dandy, finding that neither Lowery nor Rhoades had established a prima facie case of sex discrimination.

A. The Individual Claims

To make out a prima facie case of sex discrimination, the plaintiff must establish four things: (1) that she belongs to a group protected by Title VII; (2) that she applied for and was qualified for a job for which applicants were being sought; (3) that she was rejected; and (4) that after she was rejected, the employer continued to seek applicants with similar qualifications. East v. Romine, Inc., 518 F.2d 332, 337 (5th Cir. 1975); accord McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973); Adams v. Reed, 567 F.2d 1283, 1285 (5th Cir. 1978). Once a prima facie case is established, the burden shifts to the defendant to articulate some legitimate, nondiscriminatory reason for having rejected the plaintiff. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824; Adams, 567 F.2d at 1285. If the defendant carries that burden, the ball is thrown back to the plaintiff who must show that the articulated reason was a mere pretext for discrimination. McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. at 1825; Adams, 567 F.2d at 1285-86.

The district court found that Lowery and Rhoades failed to carry their initial burden because the evidence did not establish that they were qualified for the job. Although the records of the Alabama State Employment Agency show that Jim Dandy did not require applicants to have experience, the record substantiates the court's conclusion that the position of rail shipping foreman required "supervisory skills and a substantial degree of management skill." In assessing appellants' qualifications, the court noted that both Lowery and Rhoades had worked at a bakery for several years. Although both had filled in on a temporary basis in supervisory capacities, their duties basically were those of assembly line workers. Lowery had some of this temporary management experience but no other prior supervisory experience. Rhoades had been involved in operating a service station, but the extent of her responsibilities was not brought out on direct examination. On this record, we cannot say that the district court's conclusion that appellants were not qualified for the position was clearly erroneous.

B. The Class Action Issue

The district court, without elaboration, refused to certify the class because "plaintiffs have not established that the class is so numerous that joinder of all members is impractical or that there are questions of law or fact common to the class." Record at 94. It is axiomatic that the decision to or not to certify a class is discretionary, and the determination of the trial court should stand absent an abuse of discretion, assuming that the court acts within the parameters of Fed.R.Civ.P. 23. Boggs v. Alto Trailer Sales, Inc., 511 F.2d 114 (5th Cir. 1975); Hill v. American Airlines, Inc., 479 F.2d 1057 (5th Cir. 1973); see 7A C. Wright & A. Miller, Federal Practice & Procedure § 1785, 134-135 (1972). Denials of class certification, however, have been reversed. See, e. g., Hebert v. Monsanto Co., 576 F.2d 77 (5th Cir. 1978); Johnson v. Georgia Highway Express, Inc., 417 F.2d 1122 (5th Cir. 1969). Although it is difficult to glean from the district court's terse order the reasons why certification was denied here, we conclude that further reconsideration is appropriate.

Jim Dandy argues that...