Woods v. Safeway Stores, Inc.

• Decision Date: 15 July 1976
• Docket Number: Civ. A. No. 75-0321-R.
• Citation: 420 F. Supp. 35
• Parties: Andrew WOODS, Plaintiff, v. SAFEWAY STORES, INC., Defendant.
• Court: U.S. District Court — Eastern District of Virginia

420 F. Supp. 35

Andrew WOODS, Plaintiff, v. SAFEWAY STORES, INC., Defendant.

Civ. A. No. 75-0321-R.

United States District Court, E. D. Virginia, Richmond Division.

July 15, 1976.

Robert B. Fitzpatrick, Washington, D. C., Robert B. Wallace, Alexandria, Va., for plaintiff.

William H. King, Sr., John M. Oakey, Jr., James P. McElligott, Jr., Richmond, Va., for defendant.

MEMORANDUM

MERHIGE, District Judge.

This action is brought by the plaintiff to redress an alleged violation of the provisions of Title VII of the Civil Rights Act of 1964, as amended 42 U.S.C. § 2000e et seq. Plaintiff seeks injunctive and other appropriate equitable relief including an award of back pay. Jurisdiction over the controversy is premised on § 706(f) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(f), and by 28 U.S.C. § 1343(4).

The plaintiff, a black citizen of the United States, is a resident of the Commonwealth of Virginia. Defendant Safeway Stores, Inc. (hereinafter "Safeway") maintains a chain of retail grocery stores throughout the Commonwealth of Virginia, one of which, Store No. 365, is located in Hampton, Virginia. Safeway is a Maryland corporation with its principal office in Oakland, California and is an employer within the meaning of § 701(b) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e(b).

The Court makes the following findings of fact and conclusions of law:

In November, 1973, plaintiff, then 19 years of age, applied for a position at defendant's Store No. 365, Hampton, Virginia. Upon the recommendation of another black employee, he was hired by the store manager.¹ Pursuant to directions, he reported to work on Monday, November 12, 1973, and continued his employment at that facility until discharged on June 28, 1974. The basis of the discharge was the plaintiff's failure to adhere to the defendant's local employee grooming code;² the plaintiff grew a beard on advice of his dermatologist in the treatment of a condition of pseudofolliculitis barbae ("PFB"), a condition that afflicts, almost exclusively, members of the black race.

On July 2, 1974, through Local 233 of the Retail Clerks International Association, plaintiff filed a grievance against the defendant. Subsequent to an appropriate hearing, and in a decision dated December 4, 1974, the arbiter found against the plaintiff. No allegation had been made in that proceeding of racial discrimination; the sole issue before the arbitrer was whether the plaintiff had been discharged for proper cause.

On December 30, 1974, plaintiff filed a sworn charge with the Equal Employment Opportunity Commission ("EEOC") against the defendant in which he alleged that his discharge was racially discriminatory. On July 7, 1975, the EEOC issued to the plaintiff a notice-of-right-to-sue letter which he received on July 9, 1975. See § 706(f)(1) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(f)(1). Thereafter, on July 14, 1975, plaintiff filed this action. Section 706(e) of the Act, 42 U.S.C. § 2000e-5(e), requires a charging party to file a charge with the Equal Employment Opportunity Commission "within 180 days after the alleged unlawful employment practice occurred . . ." The date of discharge as to the plaintiff was June 10, 1974. It was not until 203 days later, December 30, 1974, that plaintiff filed a charge against the defendant. Ordinarily, in the absence of a tolling of the requirements of Section 706(e), plaintiff's instant claim would be time barred. See Burwell v. Eastern Airlines, Inc., 68 F.R.D. 495 (E.D.Va.1975). For reasons which follow, however, the Court, while of the view that a resort to the grievance process does not toll the limitations period, holds that the plaintiff's claim is nevertheless not time barred.

Prior to the Supreme Court's rulings in Johnson v. Railway Express Agency, 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975), and Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974), with few exceptions courts that had occasion to address the issue concluded that the filing of a labor grievance procedure did toll the filing time requirements of the Civil Rights Act of 1964. E. g., Sanchez v. Trans World Airlines, Inc., 499 F.2d 1107 (10th Cir. 1974); Moore v. Sunbeam Corp., 459 F.2d 811, 826-27 (7th Cir. 1972); Malone v. North American Rockwell Corp., 457 F.2d 779 (9th Cir. 1972); Hutchings v. United States Industries, Inc., 428 F.2d 303 (5th Cir. 1970). Cf. Reynolds v. The Daily Press, Inc., 5 EPD ¶ 7991 (E.D.Va.1972) (dicta); Phillips v. Columbia Gas of West Virginia, Inc., 347 F.Supp. 533, 538 (S.D.W.Va.1972) (dicta) aff'd, 474 F.2d 1342 (4th Cir. 1973). Subsequent to the aforementioned Supreme Court rulings, however, courts reconsidered, holding that the filing of a grievance will not toll the jurisdictional requirements of the Act. Guy v. Robbins & Myers, Inc., 525 F.2d 124 (6th Cir. 1974), cert. granted (1976); Roberts v. Lockheed Aircraft Corp., 11 FEP Cases 1440 (C.D.Calif.1975), reconsidered and vacated on other grounds (C.D. Calif., Feb. 5, 1976). But see Caldwell v. Seaboard Coast Line Railroad, C.A. No. C-C-75-133 (W.D.N.C. April 8, 1976).

In Alexander v. Gardner-Denver Co., supra, the Supreme Court held that an individual is entitled to a de novo consideration of his/her Title VII cause of action in spite of the fact that he/she has pursued a labor grievance procedure to its completion. While that case is not dispositive of the question presented in the instant action, it does contain colorable language on the relationship between Title VII and the grievance process of collective-bargaining agreements.

Title VII does not speak expressly to the relationship between federal courts and the grievance-arbitration machinery of collective-bargaining agreements. It does, however, vest federal courts with plenary power to enforce the statutory requirements; and it specifies with precision the jurisdictional prerequisites that an individual must satisfy before he is entitled to institute a lawsuit. In the present case, these prerequisites were met when petitioner (1) filed a timely charge of employment discrimination with the Commission and (2) received and acted upon the Commission's statutory notice of the right to sue. 42 U.S.C. §§ 2000e-5(b), (e), and (f).

415 U.S. at 47, 94 S.Ct. at 1019. (Emphasis added).

In submitting his grievance to arbitration, an employee seeks to vindicate his contractual right under a collective bargaining agreement. By contrast, in filing a lawsuit under Title VII, an employee asserts independent statutory rights accorded by Congress. The distinctly separate nature of these contractual and statutory rights is not officiated merely because both were violated as a result of the same factual occurrence. And certainly no inconsistency results from permitting both rights to be enforced in their respectively appropriate forums.

415 U.S. at 49-50, 94 S.Ct. at 1020.

Both rights have legally independent origins and are equally available to the aggrieved employee.

415 U.S. at 52, 94 S.Ct. at 1022.

In instituting an action under Title VII, the employee is not seeking review of the arbitrator's decision. Rather, he is asserting a statutory right independent of the arbitration process.

415 U.S. at 54, 94 S.Ct. at 1022. The Court in that case specifically and emphatically noted that the arbitration process established in collective bargaining agreements and the adjudication process established in Title VII of the Civil Rights Act of 1964 are completely distinct and independent processes.

In Johnson v. Railway Express Agency, supra, it was held that the timely filing of an employment discrimination charge with the EEOC, pursuant to § 706 of Title VII of the Civil Rights Act of 1964, did not toll the running of the limitation period applicable to an action based on the same facts brought under the Civil Rights Act of 1866, 42 U.S.C. § 1981. The Court noted that since there is no relevant federal statute of limitations for a cause of action under § 1981, the controlling period was one provided in that instance by the law of Tennessee. It was noted that Tennessee statutes explicitly provided no tolling exceptions applicable to the case, and that a failure to toll the limitation period in issue would not seriously conflict with the purposes of Title VII.

Petitioner argues that a failure to toll the limitation period in this case will conflict seriously with the broad remedial and humane purposes of Title VII. Specifically, he urges that Title VII embodies a strong federal policy in support of conciliation and voluntary compliance as a means of achieving the statutory mandate of equal employment opportunity. He suggests that failure to toll the statute on a § 1981 claim during the pendency of an administrative complaint in the EEOC would force a plaintiff into premature and expensive litigation that would destroy all chances for administrative conciliation and voluntary compliance.

. . . But the fundamental answer to petitioner's argument lies in the fact— presumably a happy one for the civil rights claimant—that Congress clearly has retained § 1981 as a remedy against private employment discrimination separate from and independent of the more elaborate and time-consuming procedures of Title VII.

421 U.S. at 465-66, 95 S.Ct. at 1723. The Court continued, perhaps revealing its overriding philosophy of the case in footnote 13:

We note expressly how little is at stake here. We are not really concerned with the broad question whether these respondents can be compelled to conform their practices to the nationally mandated policy of equal employment opportunity. If the respondents, or any of them, presently or actually engaged in such conduct, there necessarily will be claimants who are in a position now either to file a charge under Title VII or to sue under § 1981. The question in this case is only whether this particular petitioner has waited so long that h

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