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Evans v. United Air Lines Inc.

January 29, 1976

CAROLYN J. EVANS, PLAINTIFF-APPELLANT,
v.
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.

I.

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.

II.

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, ...


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