UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
January 29, 1976
CAROLYN J. EVANS, PLAINTIFF-APPELLANT,
UNITED AIR LINES, INC., DEFENDANT-APPELLEE.
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division 74-C-2530 BERNARD M. DECKER, Judge
Before CUMMINGS, ADAMS*fn*
and SPRECHER, Circuit Judges.
Per Curiam. This suit was brought by Carolyn J. Evans, under Title VII of the Civil Rights Act of 1964,*fn1 to recover seniority and back pay that she claims she has lost because of her separation from employment with United Air Lines. The complaint alleged that United discriminated against Evans in February, 1968, when United, by reason of Evans' marriage forced her to resign her employment as a stewardess, and that the effect of the termination is a continuing one, perpetuated by the current policies of United which for seniority purposes consider only continuous time in service.
Evans was employed by United as a stewardess from November, 1966 until February, 1968, when she involuntarily resigned. During that period it was the policy of United that marriage disqualified a woman from continuing her employment as a stewardess. On November 7, 1968, United discontinued its policy of requiring stewardesses to remain unmarried,*fn2 and on February 16, 1972, Evans was again hired as a new employee of United. She was provided stewardess training for newly hired employees which she completed on March 16, 1972.
Evans' charge of discrimination was filed with the EEOC on February 21, 1973 - five years after her termination from employment, and more than four years after United eliminated its no-marriage rule. She had not filed any prior charge of discrimination with the EEOC, or with any other governmental agency, or in any way challenged United's no-marriage rule.
United took the position that a timely filing of a charge of discrimination with the EEOC is a jurisdictional prerequisite to filing a civil action under Title VII. Choate v. Caterpillar Co., 402 F.2d 357, 359 (7th Cir. 1968). Therefore it moved to dismiss the complaint on the ground that Evans had failed to file a charge with the EEOC within ninety days of the alleged unlawful practice*fn3 which occurred in February, 1968, United claimed, when Evans was forced to resign as a stewardess and her employment and seniority were terminated. The district court granted United's motion to dismiss the complaint on the ground that plaintiff "has not been suffering from any 'continuing' violation" and is "seeking to have the court merely reinstate the November, 1966 seniority date which was lost solely by reason of her February, 1968 resignation."
Evans appeals and we affirm.
Evans claims that a current employment practice or policy, though facially neutral, is unlawful if by its operation it enables prior discrimination to reach into the present, and thus prolongs the effect of such prior discrimination. She also contends that where the challenged employment practice is current and continuing, the usual procedural requirement of Title VII, that an EEOC charge "be filed within one hundred and eighty days after the alleged unlawful employment practice occurred," is inapplicable. Evans appears to argue that where the practice is a persistent one, a charge filed at any time during the practice's continuance is ipso facto timely.
Her charge would not be timely and the jurisdictional prerequisites to a civil action would not be fulfilled under the Civil Rights Act, Evans concedes, unless her theory of a continuing violation is valid. Evans also concedes that United's current seniority policy is facially neutral with respect to sex,*fn4 and she does not contend that United still discriminates against females by reason of any current no-marriage policy. She does maintain however, that United's discriminatory termination in February, 1968 caused her to lose her seniority and, as a result of both that termination and United's on-going seniority policy, she suffers a discriminatory loss of seniority and related benefits, including pay, to the present date.
On the other hand, United asserts that the only legally cognizable injury to Evans was her termination of employment and seniority in February, 1968. That she was subsequently hired as a new employee cannot alter the fact, United asserts, that Evans lost her former seniority when she was terminated. It was this termination, in 1968, which began the running of the time limit with respect to the loss of her employment and associated benefits, according to United's theory of the case.
United argues that if a discriminatory act is considered to continue for so long as there is some lingering effect, every alleged discriminatory act could be litigated at any time. An alleged discrimination, United reasons, would never be final, despite the limitation period under section 2000e-5(e), since there might always be some lingering effects - monetary or otherwise.
In Collins v. United Airlines, 541 F.2d 594 (9th Cir. 1975), decided after the judgment here was entered by the district court, the plaintiff, a stewardess for United, was required to resign in 1967 because of United's nomarriage rule. In 1971, more than four years after her resignation, she filed a charge with EEOC, contending, like Evans, that she had been terminated improperly under Title VII. Collins argued that her complaint was timely filed because the alleged violation was a continuing one, since United had steadfastly denied to her all employment privileges, including her prior seniority. The district court dismissed on the basis of untimeliness. In affirming the district court, the Court of Appeals for the Ninth Circuit stated:
We cannot accept Collins' argument that her continuing non-employment as a stewardess resulting from the alleged unlawful practice is itself a violation of the Act. Under the statute, it is the alleged unlawful act or practice - not merely its effects - which must have occurred within 90 days preceding the filing of charges before the EEOC. Were we to hold otherwise, we w ould undermine the significance of the Congressionally mandated 90-day limitation period.
The major difference between the Colins case and the case at hand is that Evans was re-employed as a stewardess several years after her original employment and her original cause of action had ended, whereas Collins was not re-employed. Evans argues that the violation here is a continuing one because United's current practice is to deny her seniority credit for the period prior to 1972.
Evans would have this Court find a present discrimination when the adverse effect of a past discrimination is still felt because of a current policy of the employer, even though such current policy is not discriminatory with respect to sex.*fn5 This is congruent with the thesis that the Ninth Circuit specifically declined to accept in Collins when it stated that "the alleged unlawful act or practice - not merely its effects -... must have occurred within [the statutory period] preceding the filing of charges before the EEOC."*fn6
In Waters v. Wisconsin Steel Works, 502 F.2d 1309 (7th Cir. 1974), petition for cert. filed, 44 U.S.L.W. 3037 (U.S. Feb. 24, 1975 (No. 74-1064), this Court adopted essentially the same rationale that the Ninth Circuit employed in Collins. Wisconsin Steel had engaged in racially discriminatory hiring practices, but in 1964 it began to hire black bricklavers, including Waters, who was hired in July. When business slackened in September, 1964, Waters was among those laid off, pursuant to a "last hired, first fired" seniority system. Waters contended that this seemingly neutral policy of last hired, first fired served to perpetuate past discrimination because recently hired blacks were disadvantaged relative to whites who might not have had greater seniority but for the prior discriminatory hiring practices. Waters' argument was rejected by this Court, which stated:
Wisconsin Steel's employment seniority system embodying the "last hired, first fired" principle of seniority is not of itself racially discriminatory [nor] does it have the effect of perpetuating prior racial discrimination in violation of the strictures of Title VII.*fn7
The Waters decision adjudicated more issues than this one. But the seniority issue was not insignificant in Waters and this Court appears to have concluded that detriments that stem from the interaction of a prior discrimination and a seniority policy that is not discriminatory in itself cannot be deemed to be proximately caused by the prior discrimination.
The holding in Waters must inform our decision here.*fn8 United's seniority policy in itself is not discriminatory with respect to sex.*fn9 A policy which is neutral cannot be said to perpetuate past discriminations in the sense required to constitute a current violation of Title VII. If there is no continuing discriminatory practice with respect to Evans, her only basis for charging discrimination as a result of United's no-marriage policy is the termination in 1968. A suit based on that termination alone, however, would be barred for failure to file a charge relating to the termination within the statutorily required period.
Accordingly, the judgment of the district court is affirmed.
CUMMINGS, Circuit Judge (dissenting). With due respect, I dissent. The gravamen of the complaint is that United has continued to fail to credit plaintiff with prior seniority. This is a current practice of defendant and results in plaintiff's receiving less seniority than male stewards hired between her February 1968 illegally forced resignation and her February 1972 reemployment. The majority, incorrectly I believe, holds that this suit, filed in 1973, is barred by the pertinent statute of limitations. 42 U.S.C. § 2000e-5(e).*fn1 However, as we held in Cox v. United States Gypsum Company, 409 F.2d 289 (7th Cir. 1969), and again in Bartmess v. Drewrys U.S.A., Inc., 444 F.2d 1186, 1188 (7th Cir. 1971), certiorari denied, 404 U.S. 939, the limitation contained in what is now Section 2000e-5(e) is no bar when a continuing practice of discrimination is being challenged.
The issue then is whether defendant's policy is an act of continuing discrimination. In analyzing this issue the threshold question the court should ask is: does Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.) impose an obligation upon the employer which was allegedly violated by the challenged policy at the time plaintiff instituted this action? To determine whether there was a violation, it should next consider whether the challenged facially neutral policy gives collateral effect to a past act of discrimination, and, if so, whether the past act of discrimination is the proximate cause of the disparity complained of by plaintiff. If these conditions have been met, the plaintiff has proven discrimination in violation of Title VII. See Pettway v. American Cast Iron Pipe Co., 494 F.2d 211, 236 (5th Cir. 1974); United States v. N.L. Industries, Inc., 479 F.2d 354 (8th Cir. 1973).
Applied to the facts of this case, this analysis inexorably results in the conclusion that United's failure to credit plaintiff with back seniority is a current act of discrimination. Clearly, Title VII requires employers to determine an employee's seniority on a non-discriminatory basis. See 42 U.S.C. § 2000e-2(h); United States v. N.L. Industries, supra. Because plaintiff's seniority is being measured from the date of her re-employment, defendant's policy gives collateral effect to its past act of discrimination, viz., plaintiff's illegal termination. That 1968 wrongful act is the proximate cause of the existing disparity between plaintiff's wages and working conditions and those of male stewards hired between February 1968 and February 1972. Defendant is thus presently perpetuating the effects of its past discrimination. Plaintiff's charge was therefore timely filed and the district court had jurisdiction of her action. Choate v. Caterpillar Tractor Co., 402 F.2d 357, 359 (7th Cir. 1968).
The Equal Employment Opportunity Commission considered plaintiff's charge to be timely, and its interpretation of the time limitation contained in 42 U.S.C. § 2000e-5(e) deserves deference. Cox v. United States Gypsum Company, 409 F.2d 289, 291 (7th Cir. 1969). This view of timeliness has judicial and administrative support.
In Burwell v. Eastern Air Lines, Inc., 394 F.Supp. 1361, 1367 (E.D. Va. 1975), stewardess Burwell was terminated for pregnancy. Seven months later she was reinstated with loss of seniority. Although Eastern had changed its maternity policy prior to suit, Judge Mehrige held that her EEOC charge almost three years after her return to Eastern was a timely filing with the EEOC because of her continuing loss of seniority. His reasoning is similar to that adopted earlier by the Commission in a case on all fours with the one at bar. EEOC Doc No. 71-413, 3 FEP Cases 233 (1970). We should pay heed to its construction of Title VII (Griggs v. Duke Power Co., 401 U.S. 424, 434; Choate v. Caterpillar Tractor Co., supra, 402 F.2d at 360) and therefore require United to bridge plaintiff's seniority. See Marquez v. Omaha District Sales Office, 440 F.2d 1157, 1159-1160 (8th Cir. 1971); Tippett v. Liggett & Myers Tobacco Co., 316 F.Supp. 292, 295-296 (M.D. N.C. 1970); Healen v. Eastern Air Lines, 8 FEP Cases 917 (N.D. Ga. 1973).
Defendant maintains a present bias by enabling its past bias to reach into the present through its seniority practice. United should not be able now to penalize the victim of its prior discrimination.*fn2
The cases relied on by the majority are readily distinguishable. In Collins v. United Airlines, 514 F.2d 594 (9th Cir. 1975), plaintiff sought reinstatement several years after she had been terminated pursuant to United's "no marriage" rule. The alleged continuing discrimination in Collins was the failure to rehire plaintiff. Title VII, however, imposes no obligation on the employer to hire anyone unless the refusal is motivated by discrimination. There was no evidence in Collins that the decision not to rehire the plaintiff was based at all upon the past act of discrimination. In Buckingham v. United Airlines, 11 FEP Cases 344, 345 (C.D. Cal. 1975), the court specifically found that plaintiffs' terminations or transfers were not caused by the no marriage rule or any other act of discrimination. Finally, Waters v. Wisconsin Steel Works, 502 F.2d 1309 (7th Cir. 1974), is inapposite. In that case, the plaintiffs failed to show that the prior discrimination was the proximate cause of their layoffs.
I would reverse.