White v. Union Pacific RR

• Decision Date: 15 September 1992
• Docket Number: No. 91-1371-K.,91-1371-K.
• Parties: Bryant K. WHITE, Plaintiff, v. UNION PACIFIC RAILROAD, Defendant.
• Court: U.S. District Court — District of Kansas

805 F. Supp. 883

Bryant K. WHITE, Plaintiff, v. UNION PACIFIC RAILROAD, Defendant.

No. 91-1371-K.

United States District Court, D. Kansas.

September 15, 1992.

COPYRIGHT MATERIAL OMITTED

Bryant K. White, pro se.

David J. Waxse and Barbara A. Harmon, of Shook, Hardy & Bacon, Overland Park, Kan., for defendant.

MEMORANDUM AND ORDER

PATRICK F. KELLY, Chief Judge.

Mr. White, an African-American and former employee of Union Pacific Railroad, brought an employment discrimination suit against his former employer claiming violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 1981, and breach of an expressed or implied employment contract. Defendant moved for dismissal or in the alternative for summary judgment claiming that the Title VII suit was not timely filed, that the § 1981 suit was barred by the Supreme Court decision of Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989), and that the breach of contract claim should fail for lack of supplemental jurisdiction.

Mr. White, as a pro se litigant, responded to the motion for dismissal or summary judgment, although due to car trouble plaintiff was unable to attend the hearing on these motions.

Mr. White was employed by defendant Union Pacific as a part-time trackman, working first in Garnett, Kansas, and later in Enid, Oklahoma. Union Pacific's general code of operating rules included a rule stating that employees "must not absent themselves from duty." On February 23, 1990, Union Pacific terminated Mr. White's employment citing two unexcused absences as the reason. Mr. White contended that there was only one absence, and that it was excused. Furthermore, Mr. White alleged that the reason for termination was racial discrimination, claiming that white employees had missed more than two days and had not been fired.

Shortly before he was fired, Mr. White submitted a bid for a full-time trackman position. Mr. White claimed that he and another African-American employee were two of the six men awarded the positions. Mr. White further alleged that prior to the announcement of these jobs, several employees of Union Pacific, including the foreman, conspired to have the two men fired so that white workers would get the positions. Union Pacific denied both the fact that Mr. White was ever awarded the position and the allegations of discriminatory motive behind the firings.

Mr. White filed a complaint with the Equal Employment Opportunity Commission (EEOC). On May 21, 1991, the EEOC sent Mr. White a notice of the right to sue wherein it stated that Mr. White had 90 days after receipt of the notice to file his claims against Union Pacific. On August 22, 1991, Mr. White filed his complaint against Union Pacific. Also on that date, Mr. White filed an application to proceed in forma pauperis and an application for appointment of counsel. The court granted leave to proceed in forma pauperis on September 6, 1991.

Union Pacific moved for summary judgment due to Mr. White's failure to file his claim within 90 days after receipt of the right to sue notice. Title VII requires a potential plaintiff to file a civil action within 90 days of receiving a right to sue notice from the EEOC. 42 U.S.C. § 2000e-5(f)(1). The Supreme Court has held that failure to file within 90 days of receipt of the EEOC's right to sue notice will bar the suit unless circumstances toll the statute. Baldwin County Welcome Center v. Brown, 466 U.S. 147, 151, 104 S.Ct. 1723, 80 L.Ed.2d 196 (1984).

Mr. White claimed that he filed his complaint, his application for appointment of counsel, and his application to proceed in forma pauperis all on August 22, 1991. The Clerk's Office stamped each item as having been received on August 22, 1991. Union Pacific stated in its brief, however, that the court's docket sheet shows these documents as having been filed on September 6, 1991. Union Pacific wanted to differentiate between the mere receipt of documents by the Clerk's Office and the actual filing of those documents.

Furthermore, Union Pacific claimed that even though the form complaint may have been received on August 22, 1991, it was not actually filed until the court granted plaintiff leave to proceed in forma pauperis on September 6, 1991. For its support, Union Pacific quoted the instruction sheet which accompanies civil rights form complaints. The instruction sheet states that "the filing of this complaint, along with the payment of the filing fee or an order of the court allowing you to proceed without prepayment of a fee, commences a cause of action in this court." Thus, the defendant argued that without payment of the filing fee or the court order, the complaint was not officially filed. Union Pacific claimed that only with the court order of September 6, 1991, was Mr. White's complaint actually filed.

Following the strict wording of the instruction sheet, it may appear that Mr. White's claim is barred. The court did not grant leave to proceed in forma pauperis until September 6, 1991, 107 days after the notice of the right to sue. The 90-day statute of limitations could therefore bar this claim. Other districts, however, have addressed the 90-day limitations period and found that the mere filing of the complaint along with the application to proceed in forma pauperis is enough. In a similar Title VII case, the plaintiff filed the complaint and the application to proceed in forma pauperis, but the court did not grant leave to proceed in forma pauperis until after the 90-day period. The court found the "operative date for limitations purposes is the date the clerk of court initially receives the complaint." Stephenson v. CNA Financial Corp., 777 F.Supp. 596, 599 (N.D.Ill.1991) ("plaintiff's complaint and IFP petition were timely filed ... when received by the clerk."); McClelland v. Herlitz, Inc., 704 F.Supp. 749, 751 (N.D.Tex.1989). The courts reasoned that because the employer is notified of the charges when the employee files with the EEOC, the purpose of a limitations period is not compromised in Title VII situations.

Although neither of these cases mentioned an explicit instruction sheet that requires a court order to proceed in forma pauperis before the complaint is actually filed, this court finds such an equitable approach more grounded in law than blind adherence to an instruction sheet that has little or no legal force.

The EEOC letter was sent on May 21, 1991. There is no mention in defendant's motion or in Mr. White's response as to when Mr. White received this letter. Following the equitable approach of other courts, this court finds that on August 22, 1991, 93 days after the EEOC sent the letter, Mr. White's complaint was validly filed. Fed.R.Civ.P. 6(e) states that whenever a party is required to do some act after the service of a notice, "if the notice or paper is served upon the party by mail, 3 days shall be added to the prescribed period." Given this rule, Mr. White's complaint having been filed on August 22, 1991, falls within the 90-day period. Therefore, following the reasoning of other courts in civil rights cases where the plaintiff is pro se, this court finds that Mr. White's claim is not barred by the 90-day limitations period. Therefore, defendant's motion for summary judgment with regard to the Title VII action is denied.

This court next takes up plaintiff's failure to promote the claim brought under § 1981. In response to plaintiff's claim, Union Pacific moved for summary judgment arguing that Mr. White's failure to promote the claim was barred by Patterson v. McLean Credit Union. The Supreme Court has held that § 1981 prohibits racial discrimination in the making and enforcing of contracts. Patterson, 491 U.S. 164, 109 S.Ct. 2363. A promotion claim is therefore actionable if the change in position "involved the opportunity to enter into a new contract with the employer." Patterson, 491 U.S. at 185, 109 S.Ct. at 2377. An employer's refusal to enter into a new contract may be the basis for a § 1981 claim. However, the Court has also defined "new contract" to mean a "new and distinct relation between the employee and the employer." Patterson, 491 U.S. at 185, 109 S.Ct. at 2377.

To demonstrate its reasoning, the Patterson Court referred to Hishon v. King & Spaulding, 467 U.S. 69, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984), a case involving an associate denied partnership in a law firm, to represent the type of new and distinct relation it had in mind. Looking at the Court's use of Hishon, the Seventh Circuit held that a court's focus "should be on whether the promotion would change the terms of the contractual relationship between the employee and employer." Malhotra v. Cotter & Co., 885 F.2d 1305, 1311 (7th Cir.1989).

Our district has used the Seventh Circuit's approach and further elaborated on what constitutes a new and distinct relation. Elaborating on the Supreme Court's use of the Hishon case, the court in Guliford v. Beech Aircraft Corp., 768 F.Supp. 313 (D.Kan.1991), noted that the change from associate to partner in a law firm entails an individual acquiring an ownership interest in the firm, assuming a direct role in the firm's affairs, taking responsibility for associates, and realizing an increase in compensation and benefits. Guliford, 768 F.Supp. at 319-20. This example, the Guliford court noted, was instructive as to the sort of fundamental change that the Supreme Court required for failure to promote claims.

The court in Payne v. General Motors Corp., 731 F.Supp. 1465 (D.Kan.1990), followed the Seventh Circuit's reasoning and denied GM's summary judgment motion with regard to plaintiff's failure to promote a claim because the promotion from fifth-level to sixth-level supervisor would have involved new duties and higher wages. Consistent with Payne, the court in Waller v. Consolidated Freightways Corp. of Delaware, 767 F.Supp. 1548 (D.Kan.1991), echoed the Guliford decision when it stated that the test...