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Cox v. United States Gypsum Co.

April 9, 1969

ADELINE L. COX ET AL., PLAINTIFF-APPELLANT,
v.
UNITED STATES GYPSUM COMPANY ET AL., DEFENDANTS-APPELLEES



Duffy and Hastings, Senior Circuit Judges, and Fairchild, Circuit Judge.

Author: Fairchild

FAIRCHILD, C. J.:

Seven women brought this action against their employer, United States Gypsum Company, and their union, claiming discrimination on account of their sex in terminating their employment. The action was brought under sec. 706 of the Civil Rights Act of 1964, 42 U.S.C. ยง 2000e-5, relating to enforcement of the equal employment opportunities provisions of the act.

The district court dismissed the complaint, barring three plaintiffs, but not the others, from future action against the employer. Plaintiffs appealed, but have not argued that there was error in the judgment in favor of the union. That portion of the judgment will accordingly be affirmed.

Judge Beamer stated the facts and ably discussed the issues in a reported opinion.*fn1 We shall state our conclusions on the issues raised here, without unnecessary repetition of Judge Beamer's opinion.

II.

Sufficiency and timeliness of charges filed with the commission.

Plaintiffs Handlon and Gajewski filed charges with the commission within ninety days after the layoff which they claim was unlawful by reason of discrimination. These were clearly timely and sufficient.

Although the complaint in the action refers only to unlawful termination of employment and was not formally amended, it became clear that the five plaintiffs who were laid off more than ninety days before they filed their charges with the commission claim that there were further acts of discrimination against them down to the date of filing charges in that men with less seniority were recalled and new men were hired to fill jobs which plaintiffs were qualified to perform.

Plaintiffs Messock and Dobos were laid off more than ninety days before filing charges, but their charges explicitly claimed, in addition to the discriminatory layoff, recent hiring of new help. The district court concluded these charges sufficiently suggested discriminatory recalls. We agree.

Plaintiffs Murga, Burk, and Cox were laid off more than ninety days before they filed charges, and they made no explicit reference to recent recalls or new hiring. Item 7 of the commission's printed "Charge of Discrimination" form calls on the complainant to "Explain what unfair thing was done to you". These three plaintiffs, it is true, referred only to the layoff in response to this item. Item 6 calls for "The most recent date on which this discrimination took place". Here each of these three inserted the date of the layoffs, more than ninety days before filing, but also inserted the word "continuing".

The district court evidently construed these charges as claiming only that the layoff was discriminatory, and held the charges not timely. He pointed out that the commission has taken the position that a layoff is not a continuing act. Had these charges stood alone, and had the commission rejected them as untimely, insertion of the word "continuing" may perhaps not have saved them. But under the circumstances of this case and in the light of the purposes of the act, we think these charges should be deemed a sufficient foundation for an action based on discriminatory failure to recall these plaintiffs.

In so concluding we consider the following facts: (1) A layoff, as distinguished from discharge or quitting, suggests a possibility of re-employment. (2) A layman's claim of "continuing" discrimination, after a discriminatory layoff, readily suggests that he claims there has been subsequent recall or new hiring which discriminates against him. (3) The record shows that the company had bound itself, by its collective bargaining agreement, to consider seniority in making a recall, and the agreement provides that an employee does not lose seniority by reason of layoff until one year has expired. (4) The commission chose to accept these charges as timely. (5) The company received notices of other charges of similar current discrimination at or about the same time.

This court has previously, albeit with respect to a different requirement, indicated that the commission's decision to process a charge is important in ...


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