David L. KIRK, Plaintiff-Appellant, v. ROCKWELL INTERNATIONAL CORPORATION, Defendant-Appellee , 578 F.2d 814 ( 1978 )

SOLOMON, District Judge.

Appellant, David L. Kirk, a white male, brought this action against his employer, Rockwell International Corporation (Rockwell) for the violation of his civil rights. Appellant asserts that Rockwell discriminated against him on account of his race in violation of Title VII of the Civil Rights Act of 1964¹ and the Civil Rights Act of 1866.² ■ The District Court granted Rockwell’s motion to dismiss the action on the ground that the claims were time-barred.

This appeal raises two issues: (1) whether a state statute of limitations applies to private actions under Title VII, and (2) whether Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975), has retroactive application.

I) Facts

In his complaint, appellant alleges that in 1949 he was employed by Rockwell in California as a Radio and 'Radar Mechanic. Eventually, Rockwell promoted him to Material Review Engineer, but, in February, 1971, Rockwell demoted him to Inspector.

On or about April 27,1971 appellant filed a charge with the Equal Employment Opportunity Commission (EEOC). He alleged that Rockwell, when it reduced its staff, systematically demoted whites on the basis of race,³ and that appellant was a victim of this discriminatory employment practice.

The EEOC referred the charge to the California Fair Employment Practices Commission (FEPC). On about May 26, 1971, the FEPC declined to proceed, and the EEOC assumed jurisdiction of the charge.

On March 30, 1972 the EEOC sent a “Notice of Charge of Employment Discrimination” to Rockwell. Without disclosing appellant’s name, the Notice informed Rockwell that it had been charged with discriminating against its employees on the basis of race in “wages, demotion, seniority, qualification/testing, benefits, terms and conditions.” The Notice informed Rockwell of the date and place of the violation and included this statement:

“No action on your part is necessary at this time . . Section 1602.14 of the Commission’s Regulations requires the preservation of all relevant personnel records until this charge is resolved.” (emphasis added).

Beginning in 1971, appellant made many inquiries on the status of his charge against Rockwell. Not until August 5, 1976 did he learn that he could demand a “Right to Sue Letter” from the EEOC. On August 17, 1976 he received a “Right to Sue Letter” from the EEOC. This was more than 5 years after the date the charge was filed.

The letter notified appellant that the EEOC had not found reasonable cause to believe his charge of discrimination by Rockwell; but, if Kirk wanted to pursue the charge and bring an action against Rockwell, he would have to bring it within 90 days, or he would forfeit his Title VII claim.

Appellant then retained counsel and filed an action within 90 days after he received the letter. In his complaint appellant sought relief under Title VII, and, in a separate count, under 42 U.S.C. § 1981.

Rockwell moved to dismiss the action for failure to state a claim. Rockwell argued that appellant’s claims under Title VII and § 1981 were barred by California’s statute of limitations.

Rockwell asserts that the longest applicable California statute of limitations is 3 years and that appellant’s action filed more than 5 years after the discriminatory act is therefore barred. Rockwell relied on the rule that a federal cause of action for which Congress did not provide a period of limitations borrows the relevant state statute of limitations. E. g., Runyon v. McCrary, 427 U.S. 160, 179-181, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1976).

The District Court agreed with Rockwell and dismissed the action.

II) The Title VII Period of Limitations

Appellant contends that the filing and notice requirements of Title VII constitute a built-in period of limitations, so that it is unnecessary to borrow a state statute. Appellant also asserts that borrowing a state statute of limitations is inappropriate here because it would interfere with the federal policy, expressed in Title VII, of encouraging an aggrieved party to pursue administrative conciliation.

(A)

Title VII was enacted as part of the Civil Rights Act of 1964.⁴ Title VII prohibited racial discrimination in employment and established procedures for enforcement of this prohibition.

As enacted, Title VII required an aggrieved party to file his charge of discrimination with the EEOC within 90 days of the discriminatory act.⁵ The EEOC was required to notify the employer of the charge⁶ and was also required to attempt to conciliate the grievance within 30 days.⁷ The 30-day requirement was not mandatory; it was only directory. Cunningham v. Litton Industries, 413 F.2d 887, 890 (9th Cir. 1969).

If, after the 30 days, the EEOC determined that conciliation was unlikely, it was required to notify the aggrieved party. The aggrieved party then had 30 days to file an action.⁸ However, the 30-day period did not begin to run until the aggrieved party received a “Right to Sue Letter”, which informed him of his rights. Cunningham v. Litton Industries, supra, at 890-891.

(B)

The legislative history of the 1964 Act shows that the requirement of filing a charge within 90 days of the discriminatory act was intended to serve as a statute of limitations.

In 1964, the House Judiciary Committee favorably reported the bill⁹ which became the Civil Rights Act of 1964. Section 707(d) of the bill provided:

“No civil action (by an aggrieved party) shall be based on an unlawful employment practice occurring more than six months prior to the filing of the charge with the Commission and the giving of notice thereof to the respondent, unless the person aggrieved thereby was prevented from filing such charge by reason of service in the Armed Forces, in which event a period of military service shall not be included in computing the six-month period.”

The bill also provided for a private action if the aggrieved party obtained permission from the EEOC, and required the EEOC to give notice of the charge to the employer.

The House approved the bill, and it was submitted to the Senate.

Senators Clark and Case, floor managers of Title VII of the bill, explained the filing requirement to the Senate:

“The suit . . . would have to be based on an unlawful employment practice occurring within 6 months prior to the filing of the charge with the Commission . . . This limitation will avoid the pressing of stale claims.” 110 Cong. Rec. 7213 (1964) (emphasis added).

Senators Clark and Case . then participated ¹⁰ in drafting the amended version of the bill, which required the aggrieved party to file his charge within 90 days of the discriminatory act, and to file his action within 30 days of notice from the EEOC.¹¹ Senator Humphrey, who also participated in the drafting of the final version of the Civil Rights Act of 1964, described the requirement that the charge be filed within 90 days of the discriminatory act as a “period of limitations.” 110 Cong.Rec. 12723 (1964).

(C)

In 1972, Title VII was amended by the Equal Employment Opportunity Act of 1972.¹² Congress made the amendments apply to all charges, including charges which were pending before the EEOC on the effective date, March 24, 1972, of the amendments. See Inda v. United Air Lines, 565 F.2d 554, 560 (9th Cir. 1977).

Unlike the 1964 Act, the amendments gave the EEOC the power to bring an enforcement action. The amendments also extended the time to file a charge of employment discrimination from 90 to 180 days,¹³ and specified that the EEOC shall give notice of the charge to the employer within 10 days of the date the charge was filed.¹⁴ The 1964 Act had not specified when the EEOC had to notify the employer.

Congressman Erlenborn, who sponsored the 1972 amendments in the House explained to his colleagues that the specific time limit was for the purpose of:

“. . . giving notice to the party charged (so) that he would have an opportunity to gather and preserve the evidence . .” 117 Cong.Rec. 31972 (1971).

In Occidental Life Insurance Co. v. EEOC, 432 U.S. 355, 97 S.Ct. 2447, 53 L.Ed.2d 402 (1977), the Supreme Court held that state statutes of limitations do not apply to EEOC enforcement actions. The Court permitted the EEOC to bring an action more than 3 years after receipt of the charge. The Court said that the initial filing requirement, and the requirement that the EEOC notify the employer of the charge, were intended by Congress to function as a statute of limitations.

“Congress did express concern for the need of time limitations in the fair operation of the Act, but that concern was directed entirely to the initial filing of a charge with the EEOC and prompt notification thereafter to the alleged violator ff

“The fact that the only statute of limitations discussions in Congress were directed to the period immediately preceding the filing of an initial charge is wholly consistent with the Act’s overall enforcement structure — a sequential series of steps beginning with the filing of a charge with the EEOC. Within this procedural framework, the benchmark, for purposes of a statute of limitations, is not the last phase of the multistage scheme, but the commencement of the proceeding before the administrative body.” Occidental Life Insurance Co. v. EEOC, supra, 432 U.S. at 371-372, 97 S.Ct. at 2457-58.

Appellant filed his charge of discrimination with the EEOC months before the 1972 amendments became effective. Therefore, Rockwell did not receive notice of the charge for about 13 months after the discriminatory act. In urging the application of a state statute of limitations, Rockwell argued that “the charge could pend before the EEOC almost indefinitely only to explode upon . . . respondent as a lawsuit.” Rockwell can hardly contend that here any California statute of limitations would have given it substantially sooner notice. The shortest arguably applicable California statute of limitations provides a 1-year period for bringing an action.

We conclude that Title VII does not borrow state statutes of limitations because the time limits for filing a charge and giving notice to the employer are a Congressionally established statute of limitations. Accord, Draper v. United States Pipe & Foundry Co., 527 F.2d 515, 522 (6th Cir. 1975); Roberts v. Western Airlines, 425 F.Supp. 416, 420 (N.D.Cal.1976). “If Congress explicitly puts a limit upon the time for enforcing a right which it created, there is an end of the matter. The Congressional statute of limitation is definitive.” Holmberg v. Armbrecht, 327 U.S. 392, 395, 66 S.Ct. 582, 584, 90 L.Ed. 743 (1946); United Mine Workers v. Kleppe, 561 F.2d 1258, 1260-1261 (7th Cir. 1977).

(D)

In the 1972 amendments, Congress directed the EEOC to complete its investigation of a charge within 120 days “so far as practicable.”¹⁵ In addition, Section 706(f)(1) of Title VII as amended in 1972 provides that the EEOC must notify the aggrieved party:

(1) if the EEOC dismisses the charge as unfounded, or

(2) if within 180 days the EEOC has not commenced an action, or

(3) if within 180 days the EEOC has been unable to complete a conciliation agreement.

The aggrieved party has 90 days after “such notice” within which to file an action.¹⁶

It may be that Congress designed Section 706(f)(1) to give additional protection to the employer by directing the EEOC to issue a “Right to Sue Letter” no later than 180 days after the charge was filed.¹⁷ But the Courts have uniformly held that the 90-day period does not begin to run until the aggrieved party learns of his right to bring an action. Lynn v. Western Gillette, Inc., 564 F.2d 1282, 1286-1287 (9th Cir. 1977); DeMatteis v. Kodak, 520 F.2d 409, 410-411 (2nd Cir. 1974); Garner v. E. I. Du Pont De Nemours & Co., 538 F.2d 611, 614-615 (4th Cir. 1976); Zambuto v. American Telephone & Telegraph Co., 544 F.2d 1333, 1336 (5th Cir. 1977); Turner v. Texas Instruments, Inc., 556 F.2d 1349, 1351 (5th Cir. 1977).

These decisions reflect an awareness that:

“. . . Title VII, as established by Congress, relies upon laymen, operating without legal assistance, to initiate both administrative complaints and lawsuits. Congress did not intend that such laymen, not schooled in the finer points of legal procedure, be presumed to know exactly what procedural step they must next take in order to perfect their claims ...” Mahroom v. Hook, 563 F.2d 1369, 1375 (9th Cir. 1977).

It would be inconsistent with Title VII to hold that an aggrieved party who pursued his claim as diligently as appellant loses his right to file an action because, unknown to him, the state statute of limitations had run.¹⁸

The judgment dismissing the Title VII claim is reversed.

Ill) The Section 1981 Claim

The District Court dismissed appellant’s § 1981 claim on the ground that it was barred by California’s statute of limitations.

Appellant contends that the District Court erred in giving Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975) retroactive effect. He argues that under the law before Johnson, the timely filing of a charge under Title VII with the EEOC tolled the state statute of limitations applicable to the § 1981 claim based on the same facts. E. g., Boudreaux v. Baton Rouge Marine Contracting Co., 437 F.2d 1011 (5th Cir. 1971).

In Johnson, the Supreme Court came to the opposite conclusion. It determined that Title VII and § 1981 provide “separate, distinct, and independent” remedies for employment discrimination. 421 U.S. at 460, 95 S.Ct. 1716. It concluded that an aggrieved party abandons his § 1981 claim if he fails to file an action within the time set by the relevant state statute of limitations.

In Johnson, the Court applied its ruling to the facts of that case even though the ruling denied the petitioner any relief. Here, application of the rule announced in Johnson leaves appellant an alternative remedy under Title VII.

Generally a judicial decision which announces a new rule will not be applied retroactively unless retroactive application will promote the purpose of the rule and produce an equitable result. Chevron Oil Co. v. Huson, 404 U.S. 97, 106-107, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971).

Under these criteria, the Fifth Circuit Court in a thorough and well reasoned opinion held that Johnson applies retroactively even though Johnson has overruled clear precedent. Williams v. Phil Rich Fan Manufacturing Co., 552 F.2d 596 (5th Cir. 1977).

In this Circuit, there is no such precedent. We conclude that Johnson applies to appellant’s case.

Appellant filed this action in which he asserted his § 1981 claim more than 5 years after the discriminatory act. Under any applicable California statute of limitations,¹⁹ his action is barred.

The District Court’s dismissal of the Title VII claim is reversed, and the dismissal of the § 1981 claim is affirmed.

REVERSED AND REMANDED.

1 . 42 U.S.C. § 2000e et seq. (1970 and Supp.V). 42 U.S.C. § 2000e-2 (1970) provides:

“(a) It shall be an unlawful employment practice for an employer—

(1) . . .to discriminate against any individual with respect to his compensation, terms, conditions or privileges of employment, because of such individual’s race, color, religion, sex, or national origin . . ”

2 . 42 U.S.C. § 1981 (1970). Section 1981 provides:

“All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts . . . and to the full and equal benefit of all laws . . for the security of persons and property as is enjoyed by white citizens . . .”

3 . Appellant alleged in the charge:

“Under the specific circumstances now existing (the large reduction in the work force over an extended period of time) it is an extreme discrimination to remove long time qualified employees to replace them with ‘minority’ people who must be trained to qualify.”

4 . Pub.L. No. 88-352, 78 Stat. 241.

5 . Section 706(d), 78 Stat. 260. If the aggrieved party first filed a charge with a state employment discrimination agency, he had to file his charge with the EEOC within 30 days of receipt of notice that the State agency had ended its proceedings, or within 210 days of the discriminatory act, whichever was earlier.

6 . Section 706(a), 78 Stat. 259.

7 . Section 706(e), 78 Stat. 260.

8 . Id.

9 . H.R. 7152, 88th Cong., 2nd Sess. (1964).

10 . 110 Cong.Rec. 12707 (1964).

11 . 110 Cong.Rec. 12813-12814 (1964).

12 . Pub.L. No. 92-261, 86 Stat. 103.

13 . Section 706(e), 42 U.S.C. § 2000e-5(e) (Supp.V 1975). If the aggrieved party first files his charge with an appropriate state agency, he has 300 days from the date of the discriminatory act, or 30 days from receiving notice that the state agency has terminated proceedings, whichever is earlier, to file his charge with the EEOC.

14 . Id.

15 . Section 706(b), 42 U.S.C. § 2000e~5(b) (Supp.V 1975).

16 . Section 706(f)(1), 42 U.S.C. § 2000e-5(f)(l) (Supp.V 1975).

17 . An EEOC regulation provides that if, after 180 days, the EEOC has not acted on a charge, the EEOC nevertheless will not issue a “Right to Sue Letter” unless the aggrieved party asks for one. 29 C.F.R. § 1601.25b (1977).

18 . “The Commission is expected, at the commencement and at other appropriate stages of the proceedings, to fully notify the aggrieved party in clear and understandable fashion of the various procedural rights and steps open to him. Too often a person files a charge but then blunders along, lost in the bureaucratic process.” S.Rep. No. 92-415, 92nd Cong., 1st Sess. at 27 (1971).

19 . Section 340(3) of the California Code of Civil Procedure provides a 1-year period of limitation for “injury to one caused by the wrongful act or neglect of another . . Section 338(1) provides a 3-year period for “an action upon a liability created by statute, other than a penalty or forfeiture”. This provision has been applied to employment discrimination actions under 42 U.S.C. § 1983. E. g., Bradshaw v. Zoological Society of San Diego, 569 F.2d 1066 (9th Cir. 1978). Section 343 provides a 4-year period for all actions not governed by other statutes of limitations. See Reed v. Hutto, 486 F.2d 534, 537 n. 2 (8th Cir. 1973) (analysis of law governing selection of appropriate state statute of limitations).