Worthington v. Union Pacific R.R., 90-1698

• Decision Date: 04 November 1991
• Docket Number: No. 90-1698,90-1698
• Citation: 948 F.2d 477
• Parties: 57 Fair Empl.Prac.Cas. (BNA) 382, 57 Empl. Prac. Dec. P 41,078 Hilda G. WORTHINGTON, Appellant, v. UNION PACIFIC RAILROAD, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 477

948 F.2d 477

57 Fair Empl.Prac.Cas. (BNA) 382,

57 Empl. Prac. Dec. P 41,078

Hilda G. WORTHINGTON, Appellant, v. UNION PACIFIC RAILROAD, Appellee.

No. 90-1698.

United States Court of Appeals,

Eighth Circuit.

Submitted Dec. 14, 1990.

Decided Nov. 4, 1991.

Jeff Miller, Omaha, Neb., argued (Duncan Young, on brief), for appellant.

Kathleen Ford, Omaha, Neb., argued, for appellee.

Before LAY, Chief Judge, JOHN R. GIBSON and WOLLMAN, Circuit Judges.

JOHN R. GIBSON, Circuit Judge.

Hilda G. Worthington appeals from the district court's entry of summary judgment denying her Title VII claim as time barred. Worthington, alleging that Union Pacific Railroad had denied her a brakeman position because of her sex, filed a complaint with the Nebraska Equal Opportunity Commission (NEOC) 299 days after the alleged act of discrimination. The NEOC forwarded the claim to the United States Equal Employment Opportunity Commission district office six days later. The EEOC denied the claim on the basis that it was not filed with the EEOC within the 300-day statutory period. The district court held that although the NEOC was authorized to receive discrimination charges for the EEOC, Worthington's complaint could not be deemed timely filed with the EEOC because the NEOC had an exclusive right to process the charge that did not end until after the 300-day period. Worthington v. Union Pac. Railroad, CV-89-0-526, slip op. at 4-5 (D.Neb. Mar. 30, 1990). Worthington argues that under the terms of a worksharing agreement between the agencies, the charge should be deemed filed with the EEOC on the date it was filed with the NEOC. We conclude that the charge was timely filed, and we reverse and remand.

Worthington began working for Union Pacific in 1981. In March 1988, she was transferred to a brakeman position pending her successful completion of a required apprenticeship program. On April 28, 1988, the manager of terminal operations told her that although she had performed very well on all of the tests, she would not be certified as a brakeman because her legs were too short. Another company official told her that she would instead be placed in an equivalent position. After several months passed with no transfer, Worthington complained to the railroad's personnel department that the company had discriminated against her because of her sex. On February 21, 1989, a railroad official told her that the company would not place her in any position at all and would not attempt to assist her in any manner.

On that same date, Worthington went to the NEOC office. On February 22, she submitted a signed and notarized charge of discrimination to the NEOC. The charge was typed up on EEOC Form 5, which was addressed at the top to the "Nebraska Equal Opportunity Commission and EEOC." In the upper right-hand corner, an EEOC charge number was handwritten. At the bottom of the page, a box next to the printed statement "I also want this charge filed with the EEOC" was left blank. On the form, Worthington identified April 28, 1988, as the "date most recent or continuing discrimination took place." February 22, 1989, the date she submitted her complaint, was the 299th day after April 28. ¹ The NEOC forwarded Worthington's complaint to the EEOC district office in Denver on February 28, 1989. On May 24, 1989, the EEOC dismissed Worthington's charge and sent her a Notice of Right to Sue form. The notice stated that the EEOC lacked jurisdiction to process the charge because it was "untimely filed" with the EEOC.

On August 16, 1989, Worthington filed this action. The district court granted the railroad's motion for summary judgment, holding that Worthington's claim was time-barred. Worthington, slip op. at 5. The court reasoned that although the NEOC may be an authorized agent of the EEOC for the purposes of receiving charges, the charges are not deemed filed with the EEOC until one of three events specified in 29 C.F.R. § 1601.13(b)(1) (1990) occurs. ² Slip op. at 4. The district court found that none of the triggering events occurred before the 300-day period expired on February 23, 1989. Id. at 5. Worthington's complaint, it concluded, could not be deemed filed with the EEOC until February 28, 1989, the date when the NEOC forwarded the charge to the EEOC. Id.

We review de novo the district court's grant of summary judgment, Didier v. J.C. Penney Co., 868 F.2d 276, 280 (8th Cir.1989), and affirm only when "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); United Tel. Co. v. Johnson Publishing Co., 855 F.2d 604, 607 (8th Cir.1988).

I.

To maintain a Title VII suit, the complainant must file a timely charge with the EEOC. Owens v. Ramsey Corp., 656 F.2d 340, 342 (8th Cir.1981). In a deferral state such as Nebraska, ³ this requires the filing of the charge within 300 days of the alleged act of discrimination. 42 U.S.C. § 2000e-5(e); Owens, 656 F.2d at 342. Under 42 U.S.C. § 2000e-5(c), a state deferral agency, such as the NEOC, has a 60-day period in which it has the exclusive right to initially process discrimination charges. Consequently, regardless of whether the charge is initially presented to the EEOC or to the state deferral agency, the charge is not deemed filed with the EEOC until the expiration of 60 days or until the state agency terminates its proceedings or waives its exclusive right to process the charge, whichever is earliest. See 29 C.F.R. §§ 1601.13(a)(4)(ii)(B), 1601.13(b)(1) (1990). Regardless of which of these three events triggers "filing" with the EEOC, the filing still must occur within the 300-day period. Id.

Worthington argues that the NEOC, in a worksharing agreement with the EEOC, waived its right to the exclusive 60-day processing period with regard to certain types of charges, including hers. Because the NEOC, as an agent of the EEOC, received her charge on the 299th day and because the NEOC had previously waived its exclusive right to process her type of charge, Worthington argues that her charge was constructively received by and filed with the EEOC on the 299th day. The railroad does not dispute the effect of the waiver provisions in the worksharing agreement. Instead, it argues that the waiver provisions do not apply because Worthington did not indicate by checking the appropriate box on her complaint that she wished to have her charge filed with the EEOC as well as with the NEOC.

We reject the railroad's argument. Under the terms of the worksharing agreement, the NEOC is the authorized agent of the EEOC and is able to receive and process charges on behalf of the EEOC. ⁴ Worthington filed her charge on an EEOC form that was addressed to the EEOC and NEOC, and her complaint was assigned an EEOC "charge number." Under these circumstances, the argument that Worthington did not file her charge with the EEOC simply because of a failure to place an "X" in a designated box at the bottom of the form is not convincing. See EEOC v. Shamrock Optical Co., 788 F.2d 491, 491 n. 2 (8th Cir.1986) (discrimination charge filed with NEOC on an EEOC form and addressed to both agencies was dually filed with NEOC and EEOC). See also Pollard v. City of Hartford, 539 F.Supp. 1156, 1160 (D.Conn.1982).

Having decided that Worthington submitted her charge to both agencies, we must next decide when the charge was deemed filed with the EEOC, as the date of filing is not always dictated by the date the agency receives the charge. Under 29 C.F.R. §§ 1601.13(a)(4)(ii)(B) and 1601.13(b)(1), one of the three triggering events (expiration of the state's exclusive 60-day processing period, termination of state proceedings, or waiver of those proceedings) must occur before the end of the 300-day limitations period. Thus, while both agencies can simultaneously receive a charge, the charge is not deemed filed with the EEOC until one of the three triggering events occurs. In essence, the EEOC, after constructively receiving a complaint presented initially to a state deferral agency, holds the complaint in " 'suspended animation' " until state proceedings are terminated. Green v. Los Angeles County Superintendent of Schools, 883 F.2d 1472, 1476 (9th Cir.1989) (quoting Love v. Pullman Co., 404 U.S. 522, 526, 92 S.Ct. 616, 618, 30 L.Ed.2d 679 (1972)).

The resolution of the case before us turns on the meaning of the worksharing agreement between the NEOC and the EEOC, which Worthington argues contains an express, self-executing waiver of the NEOC's right to the exclusive 60-day processing period.

Title VII expressly authorizes the EEOC to enter into worksharing agreements with state and local agencies to promote effective enforcement of the statute. See EEOC v. Commercial Office Products Co., 486 U.S. 107, 112, 108 S.Ct. 1666, 1669-70, 100 L.Ed.2d 96 (1988); 42 U.S.C. §§ 2000e-8(b); 2000e-4(g)(1) (1988). The NEOC and the EEOC's Denver office are parties to a worksharing agreement that "designates and establishes the NEOC as an agent of the EEOC for the purpose of receiving charges on behalf of the EEOC...." Worksharing Agreement, Para. 2. Under Paragraph 6 of the agreement, the NEOC agrees to "take primary responsibility for the processing [of] all charges originally received by the NEOC and EEOC except as provided in paragraph 7...." In Paragraph 7, the EEOC takes primary responsibility for processing certain types of charges, including "[a]ll charges received by the EEOC ... 240 or more days after the alleged act occurred." (Emphasis added.) Paragraph 8 makes explicit the NEOC's waiver of the 60-day processing period with regard to the specified charges:

In order to avoid delay as to all charges other than those enumerated in paragraph 6 above, the NEOC hereby waives its exclusive right to process those charges for 60 days, as provided in Section 706(c) of Title VII of the Civil Rights Act of 1964, as amended, so that the EEOC can take immediate action on...