Guy v. Robbins & Myers, Inc. Brief for Petitioner

    I n  th e

(Emirt of % lutfrin States
October Term, 1975 

No; 75-1276

D  Or t h  a A l len  G u t ,
Petitioner,

R obbins & M yers, I n c .

BRIEF FOR PETITIONER

J ack Greenberg 
J ames M. N abrit, III 
E ric S ch n a ppeb  
B arry L. Goldstein  

10 Columbus Circle 
New York, New York 10019

A. C. W harton

Memphis and Shelby County 
Legal Services Association 
46 North Third Street 
Memphis, Tennessee 38103

Of Counsel:
A lbert J .  R osenthal

435 West 116th Street 
New York, New York 10025



I N D E X

PAGE

Table of Authorities ................... ................. ............. —- ii

Opinions Below ........................ ...............................-.....  1

Jurisdiction   ........ ...................... -........... —-..............  2

Statutory Provisions Involved ............ ................ ......... 2

Questions Presented ................... .........- ----- ------ -----  3

Statement of the Case .......................... ...... ................ - 4

A rgum ent

I. Petitioner’s EEOC Charge Was Filed Within 
90 Days As Required by Section 706 of Title 
YII Prior to the 1972 Amendment ..................  7
A. The Limitations Period Began to Run on

November 1.8 When the Company Rejected 
Petitioner’s Grievance, Rather Than When 
the Company Initially Decided to Discharge 
Her ............... .......................... .......................  7

B. The Filing of a Grievance Pursuant to a 
Grievance-Arbitration Clause in a Collective 
Bargaining Agreement Tolls the Running
of the Limitation Period Under Title YII .... 12
1. The Relevance of Statutory Purposes to

the Applicability of “Tolling” .............. 12
2. Encouragement of Voluntary Settlement

of Labor Disputes ..................................  17



11

PAGE

3. Avoidance of Technical Requirements .... 20
4. Tolling Is Required by the Legislative

H istory................................ .....................  21

II. The 1972 Amendment to Section 706, Enlarging 
the Time for Filing an EEOC Charge to 180 
Days, Is Applicable to This Case ________ __ 23

C onclusion  ................................. ...................................  27

T able of A u th o rities

Cases:
Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974)

6, 7-8,13-15,17-20
American Pipe and Construction Co. v. Utah, 414 U.S.

538 (1974) ....... ........... .............................. .................15-16

Bradley v. School Board of the City of Richmond, 416
U.S. 696 (1974) ...........................................................  23

Brown v. Gaston County Dyeing Machine Co., 457 F.2d 
1377 (4th Cir. 1972), cert, denied 409 U.S. 982 (1972) 10

Brown v. General Services Administration, 44 U.S.
LAY. 4704 (U.S. June 1, 1976) ........... ........................ 9,25

Burdsell v. FESCO Operations, 8 EPD H 9676 (W.D.
Pa. 1974) ____ _______________ _______ _____ _ 22

Burnett v. New York Cent. By. Co., 380 U.S. 424 (1965) 16

Chase Secur. Corp. v. Donaldson, 325 U.S. 304 reh. den.
325 U.S. 896 (1945) ................... ...... ..................... 16

Culpepper v. Reynolds Metals Co., 421 F.2d 888 (5th 
Cir. 1970) ........ ........................................ .......11,13, 20, 21



Ill

Davis v. Valley Distributing Co., 522 F.2d 827 (9th Cir. 
1975), petition for writ of certiorari pending No. 
75-836 ................... ................................................... . 24

Emporium Capwell Co. v. Western Addition Commu­
nity Organization, 420 U.8. 50 (1975) ..................... 18,19

Foss-Schneider Brewing Co. v. Bulloch, 59 F. 83 (6th 
Cir. 1893) .....................................    12

Glus v. Brooklyn Eastern Terminal, 359 TT.S. 231 (1959) 17
Griggs v. Duke Power Co., 401 U.S. 424 (1971) ..........  10

Hachley v. Roudebush, 520 F.2d 108 (D.C. Cir. 1975) —
The Harrisburg v. Richards, 119 U.S. 199 (1886) ....7,13,16 
Hutchings v. United States Industries, Inc., 428 F.2d 

303 (5th Cir. 1970) ............................... ......................  21

Irving Air-Chute Co. v. NLRB, 350 F.2d 176 (2nd Cir. 
1965) ..............      10

Johnson v. Railway Express Agency, 421 U.S. 454 
(1975) ...............     7,8,13-14

Love v. Pullman Co., 404 U.S. 522 (1972) .......13, 20, 22, 23

Malone v. North American Rockwell Corp., 457 F.2d
779 (9th Cir. 1972) ...................... ........... ............. 11,13, 22

Marine Terminal Ass’n. v. Rederiahtiebolaget Trans­
atlantic, 400 U.S. 62 (1970) ...... ................................  26

McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973) 6
Midstate Horticultural Co. v. Pennsylvania R. Co., 320

U.S. 356 (1943) ............................... ................ ...........  16
Moore v. Sunbeam Corp., 459 F.2d 811 (7th Cir.

1972) ................................... .............................11,13, 20-22

PAGE



IV

PAGE

Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41 
(1938) ..................................... ....................................  26

New York L. Ins. Co. v. Viglas, 297 U.S. 672 (1936) .... 11 
NLRB v. Texas Independent Oil Co., 232 F.2d 447 (9th

Cir. 1956) ...................... ........................ ..... ................  10
NLRB v. Taylor-Colquitt Co., 140 F.2d 92 (4th Cir.

1943) ........................................... ................................  10
NLRB v. Jas. H. Matthews & Co., 156 F.2d 706 (3rd 

Cir. 1946) .............. ..... ..... ......................................... . 10

Ott v. Midland-Boss Corp., 523 F.2d 1367 (6th Cir. 1975) 17

Phillips v. Columbia Gas of West Virginia, 347 F. 
Supp. 533 (SJD. W.Va. 1972) afPd w.o. op., 474
F.2d 1342 (4th Cir. 1973) ...........................................11, 22

Place v. Weinberger, 44 TJ.S.L.W. 3714 (U.S. June 14, 
1976) ................. ............... ............ ..............................  25

Roehm Y. Horst, 178 U.S. 1 (1900) .......................... .....  12
Rogers v. International Paper Co., 510 F.2d 1340 (8th 

Cir. 1975) vac. and rern. on other grounds 423 U.S.
809 (1975) .................... ............ ...... ...........................  10

Rowe v. General Motors Corp., 457 F.2d 348 (5th Cir. 
1972) ........ .................................. .............. .................. 10

Sampson v. Murray, 415 U.S. 61 (1974) .....................12,26
Sanchez v. Trans World Airlines, Inc., 499 F.2d 1107

(10th Cir. 1974) .............. .............. ............................. 22
Schiff v. Mead, 3 EPD !f 8043 (6th Cir. 1970) ______  21

Texas Aluminum Co. v. NLRB, 435 F.2d 917 (5th Cir. 
1970) ............................................ ........... ................... 10



V

PAGE

United States v. Bethlehem Steel Corp., 446 F.2d 652
(2nd Cir. 1971) ............... ................................ ......... 10

United States v. Jacksonville Terminal Co., 451 F.2d 
418 (5th Cir. 1971) cert, denied 406 U.S. 906 (1972) 10

United States v. Shipp, 203 U.S. 563 (1906) .................. 26
United States v. United Carpenters’ Local 169,457 F.2d 

210 (7th Cir. 1972) cert. den. 409 U.S. 851 (1972) .... 10 
United States v. United Mine Workers of America, 330

U.S. 258 (1947) .................................. .........................  26
United Steelworkers of America v. American Manu­

facturing Co., 363 U.S. 564 (1960) ______________  17
United Steelworkers of America v. Warrior & Gulf 

Navigation Co., 363 U.S. 574 (1960) ............ .......... 17

Vigil v. A.T.ST., 455 F.2d 1222 (10th Cir. 1972) _____ 22

Statutes:

28 U.S.C. § 1254(1) ....................      2

28 U.S.C. § 1254(b) ...............         2

29 U.S.C. § 160(b) _____      19

42 U.S.C. § 1981 ..................................................... 1, 4, 6,13

42 U.S.C. §§ 2000e et seq. (Title VII, Civil Rights Act 
of 1964) .................... ................................. ............passim

42 U.S.C. § 2000e-5(e) ...        2

42 U.S.C. § 2000e-5(d) (1970) .......    2

78 Stat. 241, 260 (Section 106(d), Civil Rights Act of 
1964) ........... .........................................................2,6,7,22



V I

86 Stat. 103, 105 (Section 4(a), Equal Employment 
Opportunity Act of 1972) .............................. .........2-3, 23

86 Stat. 103, 113 (Section 14, Equal Employment Op­
portunity Act of 1972) ................. ...... .......................3, 24

Legislative History:

118 Cong. Rec. 4816 (1972) .      24

118 Cong. Rec. 6648 (1972) ....      24

118 Cong. Rec. 7167 (1972) .... ......................... ......21-22

118 Cong. Rec. 7169 (1972) .....        24

118 Cong. Rec. 7565 (1972) ....................................... 21, 22

118 Cong. Rec. 7567 (1972) ....................................... . 24

H.R. 1746 (1971) ......... ..... ............. ..... ...... ............... . 24

S. 2515 (1971) .... ........................ ............................... . 24

H.R. Rept. No. 238, 92d Cong. 1st Sess. (1971) ............  24

H.R. Rept. No. 92-899, 92d Cong. 2d Sess. (1972) ........  24

S. Rep. No. 415, 92d Cong. 1st Sess. (1971) ............... 21, 24

Sen. Comm, on Labor & Public Welfare, Legislative 
History of the Equal Employment Act of 1972, 92d 
Cong. 2d Sess. (Comm. Print 1972) ...... ...... ........... —

PAGE



Vll

Other Authorities:

Bureau of National Affairs, Inc., -Basic Patterns in 
Union Contracts, 8th ed. (1975) ...................... -.....5,8,18

A. Corbin, Contracts _._____________ ___.__ -...........  12

R. Coulson, Title Seven Arbitration in Action, 27 Labor 
L.J. 141 (1976) ....... ........................................... ......... 15

EEOC Decision No. 70-675, March 31, 1970, CCH 
EEOC Dec. U 6142 (1973), CCH Emp. Prac. Rep.
If 2325.123 ............... -......... -.........................................  25

EEOC Decision No. 71-687, Dec. 16, 1970, CCH EEOC 
Dec. If 6186 (1973), CCH Emp. Prac. Rep. ff 2325.302 25

H. Edwards, Arbitration of Employment Discrimina­
tion Cases: An Empirical Study, in Arbitration— 
1975, Proceedings of the Twenty-eighth Annual 
Meeting, National Academy of Arbitrators 59...... . 15

H. Hammerman & M. Rogoff, The Union Role in Title 
VII Enforcement, 7 Civil Rights Digest 22 (Spring 
1975) ...................................... ....................................  18

Meltzer, Labor Arbitration and Overlapping and Con­
flicting Remedies for Employment Discrimination,
39 Univ. of Chi. L. Rev. 30 (1971) ................ ..........18, 20

Memorandum of Gf. Brissman to W. Youngblood, dated 
Nov. 18, 1974 re Chief Freight Lines, Inc. Case Nos. 
16-CA-5202, 5459, 5466, 5467 and Teamsters, Case 
No. 16-CB-833 ..................... ............. .......................... 19

PAGE

Note, 47 Miss. L.J. 545 (1976) 19



V l l l

PAGE

\V. Newman, Post-Gardner Denver Developments in 
the Arbitration of Discrimination Claims, in Arbi­
tration—1975, Proceedings of the Twenty-eighth An­
nual Meeting, National Academy of Arbitrators,
3 6 ................................................................. ........... —..18-19



I n  t h e

Qlniirt 0! %  Inttefc Btntm
October Term, 1975

No. 75-1276

D ortha A l len  Gtjy, 

—v.—

R obbins & M yers, I nc.

Petitioner,

BRIEF FOR PETITIONER

Opinions Below

The opinion of the United States Court of Appeals for 
the Sixth Circuit is reported at 525 F.2d 124 (Pet. 11a- 
22a).1 The Court of Appeals denied rehearing (Pet. 23a). 
The orders and opinions of the district court dismissing 
the petitioner’s Title VII claims, which are not officially 
reported, appear at 8 EPD UK 9573 and 9574, 8 PEP Cases 
311 and 3132 (Pet. la-5a; 6a-10a).

1 References in this form are to the appendix to the petition 
for a writ of certiorari filed in No. 75-1276.

2 The district court’s opinion dismissing the petitioner’s claim 
filed pursuant to 42 U.S.C. §1981 appears at 8 EPD K9572, 8 PEP 
Cases 309. (IUE Pet. 14a-19a). References in this form are to 
the appendix to the petition for a writ of certiorari filed in No. 
75-1264, which has been consolidated for argument with this case.



2

Jurisdiction

The jurisdiction of this Court rests on 28 U.S.C. § 1254 
(1). The opinion of the United States Court of Appeals for 
the Sixth Circuit was entered on October 24, 1975; that 
Court denied petitioner’s petition for rehearing on Decem­
ber 9, 1975. The Petition for a Writ of Certiorari was filed 
on March 8, 1976 and was granted on April 26, 1976.

Statutory Provisions Involved

Section 706(d) of the Civil Rights Act of 1964, 78 Stat. 
241, 260, 42 U.S.C. §2000e-5(d) (1970), before its amend­
ment in 1972, read as follows:

(d) A charge under subsection (a) shall be filed 
within ninety days after the alleged unlawful employ­
ment practice occurred, except that in the case of an 
unlawful employment practice with respect to which 
the person aggrieved has followed the procedure set 
out in subsection (b), such charge shall be filed by the 
person aggrieved within two hundred and ten days 
after the alleged unlawful employment practice oc­
curred, or within thirty days after receiving notice 
that the State or local agency has terminated the pro­
ceedings under the State or local law, whichever is 
earlier, and a copy of such charge shall be filed by the 
Commission with the State or local agency.

The same provision, as amended by Section 4(a) of the 
Equal Employment Opportunity Act of 1972, 86 Stat. 103, 
105, and renumbered Section 706(e), 42 U.S.C. § 2000e-5(e) 
(Supp. II 1972), reads as follows:

“ (e) A charge under this section shall be filed within 
one hundred and eighty days after the alleged unlaw­



3

ful employment practice occurred and notice of the 
charge (including the date, place and circumstances 
of the alleged unlawful employment practice) shall be 
served upon the person against whom such charge is 
made within ten days thereafter, except that in a case 
of an unlawful employment practice with respect to 
which the person aggrieved has initially instituted pro­
ceedings with in State or local agency with authority 
to grant or seek relief from such practice or to insti­
tute criminal proceedings with respect thereto upon 
receiving notice thereof, such charge shall be filed by 
or on behalf of the person aggrieved within three hun­
dred days after the alleged unlawful employment prac­
tice occurred, or within thirty days after receiving 
notice that the State or local agency has terminated 
the proceedings under the State or local law, which­
ever is earlier, and a copy of such charge shall be filed 
by the Commission with the State or local agency.”

Section 14 of the Equal Employment Opportunity Act 
of 1972, 86 Stat. 103, 113, reads as follows:

The amendments made by this Act to section 706 of 
the Civil Bights Act of 1964 shall be applicable with 
respect to charges pending with the Commission on 
the date of enactment of this Act [March 24, 1972] and 
all charges filed thereafter.

Questions Presented

1. Whether the limitations period for filing a charge 
with the EEOC begins to run from the final decision of 
a company after the completion of grievance-arbitration 
proceedings, or from the Company’s initial decision prior 
to the commencement of those proceeding?



4

2. Whether the limitations period for filing a charge 
with the EEOC is tolled during the pendency of grievance 
or arbitration proceedings!

3. Whether the 1972 amendments to Title VII, enlarg­
ing the time for filing a charge with the EEOC to 180 
days, should be applied to a charge pending before the 
EEOC on the effective date of the amendment?

Statement of the Case

This case presents questions concerning the application 
of the Title VII3 administrative process. At issue is the 
continued viability of Title VII as a means for minority 
and female workers to have their allegations of discrim­
ination heard in federal court, on the one hand, and on 
the other hand, to maintain the grievance-arbitration 
clauses of collective bargaining agreements as a viable 
means of informal conciliation and private settlement of 
employment disputes.

The petitioner, Dortha Allen Guy, brought this action 
under Title VII and the Civil Rights Act of 1866, 42 
U.S.C. §1981. Guy alleged that her former employer, Rob­
bins & Myers, Inc. (the Company), had discriminated 
against her because she was black, both in discharging her 
and in failing to reinstate her,4 * and that her labor union, 
Local 790 of the International Union of Electrical, Ma­
chine and Radio Workers (the Union), had not fairly 
represented her in grievance proceedings.

3 Title VII of the Civil Rights Act of 1964 as amended bv the 
Equal Employment Opportunity Act of 1972, 42 U.S.C. §§2000e 
et seq.

4 Guy alleged that she had followed the Company rules for 
reporting absence due to sickness and that at least one white
employee had followed the same procedures as she had but had 
been reinstated (6a-7a).



5

Guy was initially employed by the Company in 1968. 
From October 19th through the 24th, 1971, Guy was ab­
sent on sick leave. On the 25th Guy alleged that she called 
the Company and left a message that she would not be 
at work since it was necessary for her to visit her doctor. 
The Company discharged Guy on October 25 for having 
“voluntarily quit”. Two days later, on October 27, 1971, 
Guy, who was a Union steward, caused a grievance to be 
filed6 pursuant to the provisions of the collective bar­
gaining between the Company and the Union. The col­
lective bargaining agreement contained a specific provision 
barring racial discrimination in employment,6 The griev­
ance stated: “Protest unfair action of company for dis­
charge. Ask that she be reinstated with compensation for 
lost time” (18a). Guy expeditiously processed the griev­
ance through the various steps provided by the grievance- 
arbitration clause.7 The Company’s Personnel Director

6 Guy visited her physician, was treated by him, and told not to 
report to work; accordingly, Guy did not report for work until 
October 29 (6a-7a). A co-worker filed the grievance on behalf 
of Guy.

6 The agreement reads as follows:
Article XXXI—No D iscrimination

Section 1. The provisions of this contract shall be applied to 
all employees without discrimination by either the Company or 
the Union on the account of sex, race, color, creed, or national 
origin. The parties further agree to comply with the provisions 
of the Age Discrimination in Employment Act of 1967 (35a).

7 The four steps provided for in the Collective Bargaining 
Agreement (Article XVIII—Grievance Procedure) are as follows: 
Step 1 provides for proceedings between the employee and his 
foreman, Step 2 between the Chief Steward and the General 
Foreman, Step 3 between the Union Officers and representatives 
of Management, and Step 4 for arbitration (35a-6a).

This procedure is similar to grievance-arbitration clauses 
throughout industry. See Basic Patterns in Union Contracts, 
Eighth Edition—1975 (Washington, D.C.) (“Basic Patterns”) 
at 32-5.



6

denied Guy’s grievance on November 18, 1971 (18a-9a). 
Gny did not elect to pursue the grievance beyond the third 
step and the Union did not take the petitioner’s claim to 
arbitration.

On February 10, 1972, 84 days after the Company’s 
Personnel Director denied the grievance but 108 days after 
her discharge, Guy filed a charge with the EEOC, alleging 
racial discrimination in her discharge. On November 20, 
1973, after it had accepted and processed the charge, the 
EEOC found that there was no reasonable cause to be­
lieve that the discharge was racially motivated.8 After 
receiving her formal notice of right to sue, Guy instituted 
an action in the United States District Court on March 
19, 1974.

The district court by order entered on June 12, 1974, 
granted the Company’s motion to dismiss the Title YII 
cause of action because the petitioner had not filed her 
charge of discrimination with the EEOC within the 90-day 
period prescribed prior to 1972 by Section 706(d) of the 
Civil Rights Act of 1964,9 (la-5a). The petitioner’s mo­
tion to reconsider was denied, on June 19, 1974 (Pet. 6a- 
10a). On August 26, 1974, the District Court, on motions 
filed by both Guy and the Union, dismissed the complaint 
against the Union and re-aligned the Union as a party 
plaintiff (39a-40a). The Union and Guy appealed to the 
United States Court of Appeals for the Sixth Circuit.

8 A finding of no reasonable cause does not bar the aggrieved 
person from filing a Title VII action. McDonnell-Douglas Corp. 
v. Green, 411 U.S. 792, 798 (1973); Alexander v. Gardner-Denver 
Co., 415 U.S. 36, 48 n.8 (1974).

9 By an order entered on May 30, 1974, the district court dis­
missed Guy’s cause of action under §1981 because of a failure to 
meet the applicable Tennessee statute of limitations (IUE, Pet. 
14a-19a). No appeal was taken from this decision.



7

The Court of Appeals affirmed the dismissal of Guy’s 
Title YII cause of action on October 24, 1975, by a divided 
vote (Pet. lla-22a), and denied the petition for rehearing 
on December 9, 1975 (Pet. 23a). The Court of Appeals 
assumed that the limitations period for filing a charge 
with the EEOC commenced on October 25, 1971, rather 
than from November 18, 1971, when the Personnel Man­
ager denied Guy’s appeal through the grievance procedure; 
the court expressly held that it was barred from tolling 
the running of the limitations period by this Court’s deci­
sions in Johnson v. Railway Express Agency, 421 U.S. 454 
(1975), Alexander v. Gardner-Denver Company, 415 U.S. 
36 (1974), and The Harrisburg, 119 U.S. 199 (1886). 
Finally, the court held that the 1972 amendments to Title 
VII, insofar as they extended the period for filing an 
EEOC charge from 90 to 180 days, should not be applied 
to charges which were filed before the amendment but 
which were still pending on the effective date of those 
amendments.

ARGUMENT

I.
Petitioner’s EEOC Charge Was Filed Within 90 

Days As Required by Section 706 of Title VII Prior to 
the 1972 Amendment.

A. The Limitations Period Began to Run on November 18 
When the Company Rejected Petitioner’s Grievance, 
Rather Than When the Company Initially Decided to 
Discharge Her.

In ruling that Guy’s EEOC charge was filed untimely, 
the Sixth Circuit held that it was barred from applying 
the doctrine of tolling in light of the decision in The 
Harrisburg, supra, and this Court’s discussion in Alex­



ander v. Gardner-Denver Co., supra, and Johnson v. REA, 
supra, of the relationship of Title VII to other proce­
dural mechanisms for remedying claims of employment 
discrimination. (Pet. 14a-18a) While this holding is in­
correct, see Section B, infra, the question of tolling need 
not be reached. Petitioner maintains that the Company’s 
decision to discharge her did not become final until the 
completion of grievance proceedings on November 18, 
1972, and that the limitations period only commenced to 
run on that date.

However, Guy had a right to appeal this initial notice 
of discharge within the personnel administration of the 
Company by means of the grievance procedure.10 Guy in­
voked the grievance procedure on October 27, in a good- 
faith effort to constructively resolve her complaint. During 
the three-step grievance procedure the decision rests ex­
clusively with management.11 (35a-6a) The grievance pro­
cedure provides for a quick, informal evaluation by Com­
pany managers of the initial employment decision; here 
the three-step process was completed in twenty-two days, 
from October 27 to November 18, 1971.12 The discharge of 
Guy was not final until November 18, when the griev­
ance procedure was exhausted; the limitations period 
should not have begun to run until that date.

10 The three steps of the grievance procedure provide for appli­
cation by the aggrieved worker to officials of progressively greater 
responsibility in the Company’s managerial hierarchy: the first- 
step application is made to the foreman, the second-step applica­
tion to the General Foreman, and the third step application to 
“representaives of Management”. (35a-36a)

11 The Company’s complete decision-making control only gives 
way in step 4, if the grievant elects to proceed to arbitration. 
(36a-37a)

12 The three-step procedure must be completed approximately 
thirty-five days after a grievance is filed. (35a-6a) The express 
provision of short-time limits for invoking the grievance pro­
cedure is common in collective bargaining agreements. See Basic 
Patterns, supra at 33.



9

The pendency of a grievance proceeding, like the pen­
dency of any other form of internal appeal to employers, 
renders the proposed company’s decision tentative and non- 
final. Where implementation of the proposed decision is 
postponed pending that appeal, it would be obvious that 
the employer’s decision could not be considered final. Where 
the implementation of some adverse action is not deferred, 
the employer stands ready, if the internal appeal is re­
solved in favor of the employee, to vitiate the effect of 
that interim implementation by hiring, promoting, or com­
pensating the employee in any appropriate manner. What­
ever interim measure the employer elects during the pen­
dency of the internal appeal does not alter the tentative 
nature of the initial decision on which any such action 
might be based. So long as the employer has not made a 
final decision on the dispute involved, and holds out the 
possibility that a future decision may produce for the em­
ployee all he seeks, the employer should not be regarded 
as having made the firm decision to discriminate which 
would commence the applicable limitation period. Cf. 
Brown v. General Services Administration, 44 U.S.L.W. 
4704 (June 1, 1976).

If the October 25 discharge were considered as a final 
act which commenced the running of a limitations period, 
then the Personnel Director’s decision on November 18 
approving of the discriminatory discharge would be con­
sidered a new “occurrence” for which the limitation period 
would commence on that date. Petitioner in the instant 
case alleged that she not only was discriminatorily dis­
charged, but also that she was not reinstated because of 
her race.13 It is unlikely that the issues regarding the 
legality of the decision on the grievance would differ sig­

13 She specifically alleged that a white employee in similar cir­
cumstances, had been reinstated. (7a) . ,<■ .



10

nificantly from those regarding the tentative decision that 
was the subject of the grievance proceeding. A Company 
has the obligation to review initial supervisory decisions 
to insure that the subjective discretion of its supervisors 
is not used in a discriminatory manner.14 This view is con­
sistent with cases brought to remedy unfair labor practices 
in which the knowledge of the supervisors concerning the 
union activity of a worker, and the supervisor’s actions, 
have been readily imputed to the employer for the pur­
pose of determining the employer’s anti-union purpose.15 
A fortiori under Title VII, where specific intent to dis­
criminate is not a requirement,16 it should be inferred that 
the facts pertaining to a discriminatory discharge are 
known by a Company Manager reviewing that decision 
and an approval by that Manager would thereby constitute 
a new act of discrimination.

14 The Circuit Courts have regularly held that unreviewed sub­
jective supervisory discretion is a “ready mechanism for discrim­
ination against Blacks”. Rowe v. General Motors Corp., 457 F.2d 
348, 358-59 (5th Cir. 1972) ; United States v. Bethlehem Steel 
Corp., 446 F.2d 652, 655 (2nd Cir. 1971) ; Brown v. Gaston County 
Dyeing Machine Co., 457 F.2d 1377, 1382-83 (4th Cir. 1972) cert, 
denied 409 U.S. 982 (1972); United States v. Jacksonville Termi­
nal Company, 451 F.2d 428, 449 (5th Cir. 1971) cert, denied 406 
U.S. 906 (1972); United States v. United Carpenters’ Local 169, 
457 F.2d 210, 215 (7th Cir. 1972) cert, denied 409 U.S. 851
(1971) ; Rogers v. International Paper Co., 510 F.2d 340, 1345- 
46 (8th. Cir. 1975) vac. and rem. on other grounds 423 U.S. 809 
(1975).

16 See e.g., Texas Aluminum Co. v. NLRB, 435 F.2d 917, 919 
(5th Cir. 1970) (supervisor’s knowledge of discharged employee’s 
union activities imputable to employer for purposes of determin­
ing whether employee’s discharge resulted from employer’s anti­
union discrimination) ; see also Irving Air-Chute Co. v. NLRB, 
350 F.2d 176, 179 (2nd Cir. 1965) ; NLRB v. Jas. IT. Matthews & 
Co., 156 F.2d 706, 708 (3rd Cir. 1946); NLRB v. Taylor Colquitt 
Co., 140 F.2d 92, 93 (4th Cir. 1943); NLRB v. Texas Independent 
Oil Co., 232 F.2d 447, 450 (9th Cir. 1956).

16 See Griggs v. Duke Power Company, 401 U.S. 424 (1971).



11

The Seventh Circuit has followed this analysis: “Under 
this reasoning, although the incident actually ‘occurred’ 
on October 24, 1966, for limitations purposes the ‘occur­
rence’ was not completed until Moore exhausted his 
promptly initiated contractual remedies. We therefore hold 
that, with respect to the October 24, 1966, incident, the 
statute began to run on February 16, 1976 [the date that 
the third-step grievance was rejected by the Company] 
Moore v. Sunbeam Corporation, 459 F.2d 811, 827 (7th Cir. 
1972).17 Other courts which nave applied the doctrine of 
tolling, see B infra, have expressly reserved ruling on the 
question of when the period of limitation should begin 
to run.18

Because Guy’s rights under the collective bargaining 
agreement were not terminated until the final denial of 
the grievance on November 18, the Company’s October 25 
notification of discharge is analogous to an anticipatory 
breach of contract. Cf. New York L. Ins. Co. v. Viglas, 
297 U.S. 672, 679-82 (1936). Guy has a right under the 
collective bargaining agreement to continuing employment 
unless discharged for cause; and Guy has a similar right 
under Title VII not to be discharged because of her race. 
Moreover, the agreement, like Title VII, specifically pro­
vides protection from a discharge resulting from racial 
discrimination. (35a) The continuing nature of the Com­
pany’s obligation to provide employment on a non-discrim- 
inatory basis is shown by the fact that Ms. Guy could 
be made whole by payment of backpay and benefits if 
the Company reversed its decision during the grievance

17 See also Phillips v. Columbia Gas of West Virginia, 347 F. 
Supp. 533, 538 (S.D. W. Ya. 1972) aff’d w.o. op., 474 F.2d 1342 
(4th Cir. 1973).

18 Culpepper v. Reynolds Metals Company, 421 F.2d 888, 893 
n.5 (5th Cir. 1970); Malone v. North American Rockwell Corpora­
tion, 457 F.2d 779, 781 n.2 (9th Cir. 1972).



12

process. Cf. Sampson v. Murray, 415 TJ.S. 61 (1971). The 
initial notice of discharge does not finally terminate the 
employer’s obligation to provide continuing employment, 
but rather expresses an intention to terminate in the fu­
ture if the initial decision is upheld during the grievance 
process. After the renunciation of a continuing contract 
by one party, the other party has an option to consider 
himself absolved of any future obligation and to sue im­
mediately, or alternatively, to postpone suit until irre­
parable breach occurs. Boehm v. Horst, 178 U.S. 1, 19 
(1900). If the person, as petitioner did, elects to wait, 
the statute of limitations begins to run only from the 
date when the irreparable breach occurs which in this 
case was the date of the final denial of the grievance. See 
Foss-Sclmeider Brewing Co. v. Bulloch, 59 F. 83 (6th 
Cir. 1893) and 4 Corbin, Contracts, §989 and cases cited 
therein.

That the Company’s action was not final until the com­
pletion of the grievance process is dictated by the very 
nature of that process, regardless of the statutory 
policies involved. In fact, however, the statutory policies 
underlying Title VII clearly support this treatment of 
grievance proceedings. See infra at 17-22.

B. The Filing of a Grievance Pursuant to a Grievance-A rbi­
tration Clause in a Collective Bargaining Agreement Tolls 
the Running of the Limitation Period Under Title VII.
1. The Relevance of Statutory Purposes to the Appli­

cability of “Tolling”.

Every appellate court, with the exception of the Sixth 
Circuit, which has considered the question has determined 
that the limitation period for filing a charge with the 
EEOC did not run during the aggrieved person’s resort 
to the grievance procedure, see infra at 21-2. These courts



13

held that this conclusion was consistent with the Con­
gressional policy favoring private settlement and volun­
tary compliance19 and the Congressional intention not to 
have the statute read in an overly technical manner so 
as. to destroy the Title VII rights of an employee who in 
good faith follows his contractual remedy.20 In ruling that 
the limitations period was not tolled by the petitioner’s 
good faith resort to the grievance procedure, the Sixth 
Circuit did not even consider the Congressional policies 
supporting tolling. Rather, the Sixth Circuit held that it 
was precluded from such consideration by Johnson v. REA, 
Alexander v. Gardner-Denver Company, and The Harris­
burg.

In Johnson v. Railway Express Agency, this Court held 
that the filing of a Title VII charge with the EEOC did 
not toll the state statute of limitations applicable to the 
filing of an action pursuant to 42 U.S.C. §1981. Johnson 
is distinguishable from the instant case because it was 
grounded on the premise that where the statute of limita­
tions is based on state law, the tolling rules as well must 
be derived from state law. 421 U.S. at 463-64. The deci­
sion does not bear upon the question of the Congressional 
intention with regard to the propriety of tolling the limita­
tion period under a federal statute like Title VII.21 The

19 Culpepper v. Reynolds Metals Company, supra 421 F.2d at 888, 
891-92; Moore v. Sunbeam Corporation, supra 459 F.2d at 826-27; 
Malone v. North American Rockwell Corporation, supra 457 F.2d 
at 781.

20 See e.g., Culpepper v. Reynolds Metals Company, supra 421 
F.2d at 891-92. Cf. Love v. Pullman Co., supra 404 U.S. at 526-27.

21 In Johnson the Court used its determination that the reme­
dies under Title VII and §1981 “are separate, distinct, and inde­
pendent” as the starting point, not the conclusion as did the Sixth 
Circuit, for analyzing whether in that particular case the statute 
should be tolled. The Court then examined the appropriate state 
law and the pertinent Congressional intention. (421 U.S. at 462-



14

Court in Johnson expressly noted the distinction between 
the situation before the Court in that case and one, as here, 
in which the limitations period is “derived” directly from 
a federal statute rather than by reference to state law. 
421 U.S. at 466. Where the Congressional policies under­
lying the federal statute, as here, require that the period 
of limitation be tolled, Johnson suggests that the courts 
adopt a tolling rule consistent with the statutory scheme. 
Id.™

The Court’s decision in Alexander rather than prohibit­
ing tolling of the limitations period, as the Sixth Circuit 
suggests, supports a “tolling” rule or, alternatively, that 
the limitations period is considered not to commence until 
the completion of the grievance procedure. Alexander 
holds that the grievance-arbitration procedures and Title 
YII actions are independent only in the sense that utiliza­
tion of the former does not bar use of the latter. However, 
Title YII and the grievance-arbitration procedure “supple­
ment” each other in achieving the national labor policy of 
equal employment opportunity which may best be achieved 
“by permitting an employee to pursue fully both his remedy 
under the grievance-arbitration clause . . . and his cause 22

66) The clear implication is that if the Tennessee state law or 
Congressional intention were otherwise, then the statute would 
appropriately be tolled. The Sixth Circuit because of its mis­
interpretation of Johnson wrongly thought itself precluded from 
examining the underlying Congressional purposes and intention 
in determining whether the filing of a grievance tolls the running 
of the limitations period.

22 The Court expressly noted “how little is at stake” in Johnson, 
421 U.S. at 467, n. 13. In Guy there is much at stake: the com­
plementary maintenance of the essential policies of encouraging 
resort to the grievance-arbitration policy, voluntary compliance by 
unions and companies with fair employment laws, private and in­
expensive settlement of equal employment disputes without resort 
to the federal courts, and the incorporation of fair employment 
practices into the law of the shop.



15

of action under Title VII”, 415 U.S. at 59-60. See infra 
at 17-20.

Tlie legislative intent “in this area . . .  to accord parallel 
or overlapping remedies against discrimination”, 415 U.S. 
at 47, requires a tolling rule that will not tend to encourage 
or force employees to choose between such remedies. The 
grievance-arbitration process provides in some instances 
an expeditious and inexpensive method for resolving com­
plaints of racial discrimination,23 but the process based on 
a collective-bargaining agreement and within the control 
of the Union and the Company is not designed for the full 
remedy of all claims of employment discrimination filed 
by individual employees.24 415 U.S. at 51. Combined with 
a tolling rule, the Alexander rule not barring resort to 
a Title VII action because of a prior election to pursue 
the contractual remedy will support the policies of favor­
ing voluntary compliance and the resort to the grievance- 
arbitration procedure to resolve labor disputes.25 26

This Court has recently articulated the standard to be 
applied in order to determine whether a limitations period 
in a federal statute should be tolled:

The proper test is not whether a time limitation is 
‘substantive’ or ‘procedural’, but whether tolling the 
limitation in a given context is consonant with the

23 See infra at 18-9.
24 Professor Edwards, in a recent study based on a question­

naire sent to arbitrators and on arbitration decisions, fully details 
this point. Edwards, Arbitration of Employment Discrimination 
Cases: An Empirical Study, Proceedings of the Twenty-Eighth 
Annual Meeting National Academy of Arbitrators 59, 70-84
(BNA 1975) ; see also Coulson, Title Seven Arbitration in Action, 
27 Labor Law Journal 141 (1976).

26 In addition, such a ruling will encourage Unions and Com­
panies to incorporate the national policy of fair employment into 
the “law of the shop”, see infra at 18 n.28.



16

legislative scheme, (footnote omitted). American Pipe 
and Construction Co. v. Utah, 414 TJ.S. 538, 557-58 
(1974).26

See also Burnett v. New York Cent. R„ Co., 380 TJ.S. 424, 
426-27 (1965); Midstate Horticultural Co. v. Pennsylvania 
R. Co., 320 TJ.S. 356, 360 (1943); see Chase Recur. Corp. 
v. Donaldson, 325 TJ.S. 304, 313-16 reh. den. 325 TJ.S. 896 
(1945). Here the Congressional purposes supporting Title 
VII and the federal labor laws are clearly furthered by 
tolling the running of the limitations period during the 
period in which the worker invokes the grievance procedure.

Nor are there any equitable considerations which would 
weigh against a tolling rule. When the aggrieved person 
resorts to a grievance procedure in a constructive attempt 
to resolve his complaint there is neither a question that the 
worker has slept on his rights nor that the defendant has 
been prejudiced by the loss of evidence due to faded mem­
ories o:r the disappearance of witnesses. See Burnett v. 
New York Cent. R. Co., supra 380 U.S. at 428-29. In fact, 
because of the rapidity with which a grievance is filed, e.g., 
Ms. Guy filed a grievance two days after the notice of dis­
charge, and processed, defendants will, as a general rule, 26

26 The Sixth Circuit misconstrued the scope of The Harrisburg. 
The Harrisburg, an in rem action brought under the admiralty 
jurisdiction of the federal court, does not apply to the facts of 
this case. The plaintiff sought recovery under the wrongful death 
statute of either Pennsylvania or Massachusetts; both statutes re­
quired the cause of action to be brought within one year. The 
Court simply held that litigants in federal courts who rely upon 
a state statute are properly bound by the limitation period con­
tained within the state statute rather than by a federal time limit. 
The Harrisburg, supra 119 U.S. at 214. In American Pipe and 
Construction Co. v. Utah, 414 U.S. supra at 557, the Court ex­
pressly limited the holding of The Harrisburg (explaining that 
that decision did not “purport to define or restrict federal judicial 
power to delineate circumstances where the applicable statute of 
limitations would be followed”.)



17

be informed of the complaint of discrimination earlier than 
if an employee only files an EEOC charge.27

2. Encouragement of Voluntary Settlement of Labor 
Disputes.

The decision of the Sixth Circuit, if allowed to stand, 
would seriously undermine the important national policy 
favoring conciliation and private compliance which is basic 
to both the fair employment and labor laws, and would un­
necessarily impede implementation of this policy. In pass­
ing Title YII, Congress established “ [cjooperation and 
voluntary compliance . . .  as the preferred means for 
achieving [the] goal” of providing equal employment op­
portunity, Alexander v. Gardner-Denver Co., supra, 415 
U.S. at 44, although the federal courts are provided with 
final and plenary powers to enforce Title VII. Id. at 47. 
Similarly, collective bargaining and the arbitration of labor 
disputes is favored by federal labor laws. United Steel­
workers of America v. American Mfg. Co., 363 U.S. 564 
(1960). The grievance machinery is an essential element 
of national labor policy because it is the “vehicle by which 
meaning and content are given to the collective bargaining 
agreement” and, as a practical matter, serves to develop 
the “ ‘common law of the shop’ United Steelworkers of 
America v. Warrior & Gulf Co., 363 U.S. 574, 581-82 (1960).

27 The Court has been concerned not to bar claims because of a 
failure to meet a limitation period where the plaintiff has been 
induced to pursue private settlement. Glus v. Brooklyn Eastern 
Terminal, 359 U.S. 231 (1959) ; see Ott v. Midland-Boss Corpora­
tion, 523 F.2d 1367, 1370 (6th Cir, 1975). While Guy may 
not have been affirmatively induced by Robbins & Myers to pur­
sue her collective bargaining remedy, she certainly relied on the 
effectiveness of the agreement entered into between the Company 
and the Union, as those parties would want. If the limitations 
period is not tolled by the filing of a grievance, difficult problems 
concerning whether the Company and Union induced reliance on 
the collective bargaining agreement will have to be litigated in 
virtually every case.



18

Alexander recognized tha t:
. . . the federal policy favoring arbitration of labor 
disputes and the federal policy against discriminatory 
employment practices can best be accommodated by 
permitting an employee to pursue fully both his remedy 
under the grievance-arbitration clause of a collective­
bargaining agreement and his cause of action under 
Title VII. 415 U.S., at 59-60.

Importantly, the Court wanted to preserve the oppor­
tunity for a continued merger of the means for enforcing 
the fair employment and labor policies: to encourage the 
incorporation of the requirements of equal opportunity in 
employment as developed by the federal courts pursuant 
to Title VII into the “common law of the shop”. This in­
corporation would further the inexpensive, enforcement of 
federal law by the grievance-arbitration machinery. Alex­
ander, supra at 550. Emporium Capwell Co. v. Community 
Org., 420 U.S. 50, 66-7 (1975). While this desirable result 
has not yet been achieved, there are strong indications that 
considerable progress has been made under the “spur and 
catalyst” of Title VII. For example, there has been a 
steep increase between 1965 and 1974 in the inclusion of 
provisions in collective bargaining agreements barring dis­
crimination on the basis of race, color, religion, sex, na­
tional origin or age and thus including such discrimination 
specifically within the remedial framework of the grievance- 
arbitration machinery.28

28 In 1974 discrimination on the basis of race, color, creed, sex, 
national origin or age was banned in 74% of the contracts 
sampled, compared to 46% in the 1970 survey and only 28% in 
the 1965 survey. Basic Patterns, supra at 127; see also Meltzer, 
Labor Arbitration and Overlapping and Conflicting Remedies for 
Employment Discrimination, 39 Univ. of Chi. L. Rev. 30, 50 
(1971) ; Hammerman & Rogoff, The Union Role in Title VII En­
forcement, 7 Civil Rights Digest 22, 27-28 (1975); Newman, Post-



19

The failure to defer the running of the limitations pe­
riod until after the final determination of the grievance 
(or to toll the running of the limitation period) will 
seriously jeopardize any positive effect which the griev­
ance procedure may have in providing equal employment 
opportunity and will jeopardize the policy of informal 
conciliation and voluntary compliance. A worker would be 
required to file an EEOC charge while attempting to 
pursue his collective bargaining remedy. Once an EEOC 
charge is filed, the informal, intra-mural nature of the 
grievance procedure is disturbed by the entry of a third- 
party, the federal government. It may then be more dif­
ficult to informally resolve the complaint. While the griev­
ance-arbitration procedure is not sufficient for resolving 
all employment discrimination disputes (Alexander, 415 
U.S. at 50-1), it may be effective for resolving many types 
of grievance (415 U.S. at 55), including some of the pat­
tern and practice variety;29 30 but that effectiveness will be 
disturbed by requiring the simultaneous pursuit of formal 
EEOC remedies and thus negating the primary advantage 
of the grievance procedure, its private and informal na­
ture.80 Such a result would run counter to this Court’s

Gardner Developments in the Arbitration of Discrimination 
Claims, Proceedings of the 28th Meeting, National Academy of 
Arbitrators 36 (1975).

29 Emporium Capwell Co. v. Community Org. supra 420 U.S. at 
66-67.

30 See Note, 47 Miss. L. J. 545, 558-59 (1976). Similarly, the 
Office of the General Counsel of the NLRB has taken the position 
that the limitations period for filing a charge of unfair labor 
practice, 29 U.S.C. §160 (b), is tolled pending the resort to the 
grievance-arbitration procedures of a collective bargaining agree­
ment. See Memorandum from Gerald Brissman, Associate General 
Counsel, to William E. Youngblood, Director Region 16, dated 
Nov. 18, 1974 re Chief Freight Lines, Inc. Case Nos. 16-CA-5202, 
5459, 5466, 5467 and International Brotherhood of Teamsters 
Local No. 886, Case No. 16-CB-833. Copies of this Memorandum,



20

admonition in Alexander that “Title VII was designed to 
supplement, rather than supplant, existing laws and in­
stitutions,” 415 U.S. at 48-9.

3. Avoidance of Technical Requirements.

Guy, like many other workers, was familiar with the 
rules of the shop and the procedures, the grievance mech­
anism, for enforcing the rules. An aggrieved worker 
would, as a matter of course, resort to the accessible griev­
ance machinery; only after the grievance procedure has 
ended and its result known is a worker likely to consider 
alternative available action.31 During the informal griev­
ance and arbitration phase an employee is unlikely to 
consult with counsel or learn in any other way of court- 
made tolling rules that might require him to complain to 
EOCC. It is consistent with the common-sense expecta­
tions of the shop for the Court to hold that the limita­
tions period does not begin to run until the grievance 
procedure has been exhausted. To do otherwise would 
penalize the worker for invoking familiar contractual rem­
edies and for not being sophisticated enough to understand 
the availability and suitability of alternative legal rem­
edies.32 Cf. Love v. Pullman Co., supra, 404 U.S. at 526-27.

along with a transmittal letter from the General Counsel of the 
NLRB to counsel for petitioner, will be lodged with the Court and 
served on all parties.

31 “We do not think that Congress intended for a result which 
would require an employee, thoroughly familiar with the rules of 
the 'shop, to proceed solely with his Title YII remedies for fear 
that he will waive these remedies if he follows the rule of the 
shop or to do both simultaneously thereby frustrating the griev­
ance procedure”. Culpepper v. Reynolds Metals Co., supra 421 
F.2d at 891-92; Moore v. Sunbeam Corporation, supra 459 F.2d 
at 827.

32 See Meltzer, Labor Arbitration and Overlapping and Con­
flicting Remedies for Employment Discrimination, supra at 48.



21

4. Tolling Is Required by the Legislative History.

Ill its deliberations concerning the Equal Employment 
Opportunity Act of 1972, Congress surveyed the effect and 
interpretation which the courts had afforded Title VII. 
As explicitly stated by a section-by-section analysis33 of 
the bill, II.R. 1746 which was reported out by the Con­
ference Committee and which was approved by the House 
and the Senate,

[i]n any area where the new law does not address 
itself, or in any areas where a specific contrary in­
tention is not indicated, it was assumed that the pres­
ent case law as developed by the courts would continue 
to govern the applicability and construction of Title 
VII. 118 Cong. Rec. 7167, 7565 (1972).

Every appellate court which had considered the question 
prior to March, 1972, had held that the resort to the griev­
ance-arbitration procedure tolled the running of the lim­
itation period for filing a charge with the EEOC. Cul­
pepper v. Reynolds Metals Company, 421 F.2d 888, 891-92 
(5th Cir. 1970) ;34 Hutchings v. United States Industries, 
Inc., 428 F.2d 303, 308-09 (5th Cir. 1970).35

33 The section-by-section analysis was prepared by the Senate 
co-sponsors of the Act, Senators Williams and Javits. Senator 
Williams introduced it as “an analysis of H.R. 1746 as reported 
from the Conference. . . . ” 118 Cong. Rec. 7166 (1972). The 
identical seetion-by-section analysis was introduced into the House 
record by Representative Perkins, 118 Cong. Rec. 7563 (1972). 
The Conference Committee bill was accepted by both Chambers. 
Id. at 7170, 7573.

34 Congress was fully aware of the decision in Culpepper. The 
decision had been cited with approval in Senate Report No. 415 
at n.14-15, 92d Cong. 1st Sess. (1971).

35 Cf. Schiff v. Mead, 3 BPD ]f8043 (6th Cir. 1970). Subse­
quently, every court, except the Sixth Circuit in Guy, has agreed 
that the limitations period should not run during resort to the 
grievance proceedings by the aggrieved person. Moore v. Sunbeam



22

Moreover, in keeping with its intent to make Title VII 
work as an effective remedy for employment discrimina­
tion and in order to encourage voluntary compliance and 
private settlement, Congress expressly approved those 
cases which had interpreted the time limitation for filing 
an EEOC charge “so as to give the aggrieved person the 
maximum benefit of the law”. Section-by-section Analysis, 
118 Cong. Rec. 7167, 7565 (1972). Furthermore, Congress 
approved a liberal judicial interpretation of a section of 
Title VII, §706(d), related to the section at issue, §706(e). 
Section 706(d) requires deferral to state fair employment 
agencies by the EEOC for a 60-day period. Congress ap­
proved the decision in Love v. Pullman Co., 404 U.S. 522 
(1972), which provided that the EEOC may receive and 
defer a charge to a state agency and then process the 
charge upon the lapse of the 60-dav deferral period, even 
though the statute provides that no charge may be filed 
with the EEOC until 60 days after state proceedings are 
commenced. Congress also approved Vigil v. A.T. $  T., 
455 F.2d 1222 (10th Cir. 1972), where the court held that 
in order to protect the aggrieved person’s Title VII rights 
a charge filed with a state or local agency may also 
be filed with the EEOC during the 60-day deferral period. 
118 Cong. Rec. 7167, 7565 (1972).

Corp, supra 459 F.2d at 827; Malone v. North American Rockwell 
Corporation, supra 457 F.2d at 781; Sanchez v. Trans World Air­
lines, Inc., 499 F.2d 1107, 1108 (10th Cir. 1974) ; Phillips v. Co* 
lumbia Gas of West Virginia, Inc., 347 F.Supp.. 533, 538 (S.D. 
W. Va. 1972) aff’d w.o. op., 474 F.2d 1342 (4th Cir. 1973) ; see 
also Burdzell v. FESCO Operations, 8 EPD ff9676 (W.D. Penn. 
1974).



23

II.

T he  1 9 7 2  A m endm ent to  Section 706 , E n larg ing  th e  
T im e fo r  F iling  an  EEOC C harge to  1 80  Days, Is 
A pplicable to  T his Case.

In the Equal Employment Opportunity Act of 1972 Con­
gress extended the time period for filing a charge with the 
EEOC from 90 days after the allegedly discriminatory act 
“occurred” to 180 days.36 37 Petitioner’s charge was pending 
before the EEOC on March 24, 1972, the date the Act 
became effective. Since that charge was filed 108 days after 
petitioner was first notified of her discharge, it was clearly 
timely if the Act is applicable to pending cases.87

Under this Court’s ruling in Bradley v. Richmond School 
Board, 416 U.S. 696 (1974), the 1972 amendment applies to 
Guy’s charge.

[A] court is to apply the law in effect at the time it 
renders its decision, unless doing so would result in 
manifest injustice or there is statutory direction or 
legislative history to the contrary. (416 U.S. at 711)

There is no claim, nor could there be, that the application 
of the amendment extending the filing period to 180 days 
“would result in manifest injustice.”

36 Section 4(a) of the Equal Employment Opportunity Act of 
1972, 86 Stat. 103, 105, 42 U.S.C. §2000e-5(e).

37 If petitioner had filed her charge between March 24, 1972, 
the effective date of the 1972 Act and April 22, 1972, 180 days 
after the initial notice of discharge, then there would be no ques­
tion that the charge was timely. Accordingly, the Sixth Circuit, 
by holding that petitioner’s charge was untimely is penalizing her 
for not having undertaken the superfluous act of re-filing with 
EEOC on or shortly after March 24, 1972. In effect, petitioner 
Guy was deprived of her day in court for filing too early rather 
than too late. Cf. Love v. Pullman Go., 404 U.S. 522 (1972).



24

Moreover, there is specific statutory direction to apply 
the amendment, of §706 to charges pending as of the effec­
tive date of the Act.38 Section 14 of the Act, 86 Stat. 103, 
113, provides:

The amendments made by this Act to section 706 of 
the Civil Rights Act of 1964 shall be applicable with 
respect to charges pending with the Commission on 
the date of enactment of this Act [March 24, 1972] 
and all charges filed thereafter.

The plain meaning of Section 14, that the amendments to 
Section 706 apply to charges pending on the effective date 
of the Act, was clearly what Congress intended. The initial 
versions of the bills introduced in both the House and the 
Senate provided that any amendments to Title YII would 
not apply to .charges filed with the EEOC prior to the 
effective date of the Act.39 Section 14 originated in an 
amendment introduced by Senator Javits; the broad reach 
of its intended effect was expressed by his statement that 
the amendment “would make whatever we do enact into law 
applicable to pending cases”, 118 Cong. Rec. 4816 (1972). 
This application of the 1972 amendments was stressed in 
both the House and Senate.40

38 See Davis v. Valley Distributing Co., 522 F.2d 827 (9th Cir. 
1975) petition for writ of certiorari pending No. 75-836.

39 H.R. 1746, 92d Cong., 1st Sess. §10 (1971); S. 2515, 92d 
Cong., 1st Sess. §13 (1971) ; H.R. Rep. No. 238, 92d Cong., 1st 
Sess. 32 (1971); S. Rep. No. 415, 92d Cong., 1st Sess. 46, 72
(1971) .

40 See 118 Cong. Rec. 7169 (1972), 118 Cong. Rec. 7567 (1972). 
The amendment was approved by the Senate after Senator Javits 
introduced it. 118 Cong. Rec. 4816 (1972). The House accepted 
the amendment in conference. Conference Rep. on H.R. 1746 
(H.R. Rep. No. 92-899) 92d Cong. 2d Sess., 118 Cong. Rec. 6646
(1972) ; see also Joint Explanatory Statement of Conference 
Managers, 118 Cong. Rec. 6648 (1972).



25

This Court has applied other amendments enacted by 
the 1972 Act to administrative charges pending as of March 
24, 1972. In Brown v. GSA, 44 U.S.L.W. 4704, (June 1, 
1976), the Court affirmed the Second Circuit’s ruling that 
Section 717 of Title VII which extended coverage to fed­
eral employees, applied to an administrative charge pend­
ing on March 24, 1972. In Place v. Weinberger, 44 U.S.L.W. 
3714 (June 14, 1976), the Court vacated and remanded in 
light of Brown a decision of the Sixth Circuit which had 
refused to apply §717 to an administrative charge pending 
on March 24, 1972. Congress did not expressly provide, 
as it did for amended §706, that §717 should be applied to 
pending administrative charges. Having applied §717 to 
charges pending as of the effective date of the 1972 amend­
ments the Court should, a fortiori, similarly apply §706.

The Sixth Circuit refused to apply the law in effect at 
the time of its decision because it viewed Guy’s claim as 
having expired under the 90-clay limitation period prior to 
February 10, 1972, the date she filed with the EEOC and 
therefore, it reasoned, the charge could not have been pend­
ing as of March 24, 1972 (Pet, 15a; 525 F.2d at 127). This 
ruling ignored the fact that the EEOC had accepted the 
charge on February 10, 1972, and was processing that 
charge until its final decision on November 20, 1973.41 Once 
EEOC accepted the charge, its authority to process the 
charge was protected under the long-standing rule that ad­
ministrative proceedings are considered pending until the

41 EEOC accepted Guy’s charge under its policy that the statu­
tory limitation period is tolled during pendency of grievance pro­
ceedings. While EEOC has not published formal regulations on 
the subject, it has announced its interpretation in EEOC Decision 
No. 70-675, March 31, 1970, CCH EEOC Dec. 6142 (1973), CCII 
Emp. Prac. Rep. H2325.123, and EEOC Decision No. 71-687, Dec. 
16, 1970, CCH EEOC Dec. 1J6186 (1973), CCH Emp. Prac. Rep. 
H2325.302.



26

agency renders a determination on the rights and obliga­
tions of the parties. Marine Terminal v. Rederi. Trans­
atlantic, 400 U.8. 62, 71 (1970); Sampson v. Murray, 415 
U.S. 61, 74 (1974).42 43 The criterion of pendency is whether 
an action is in fact still under consideration in an appro­
priate tribunal on the date in question, not whether it 
should have been. Since the EEOC was clearly processing 
Guy’s charge on March 24, the charge was pending and 
thereby, under the plain meaning of Section 14, the time­
liness of the tiling must be decided by the 180-day provi­
sion of the Equal Employment Opportunity Act of 1972.

42 This doctrine applies where the alleged infirmity is failure of 
the administrators jurisdiction, see Myers v. Bethlehem Ship­
building Corp., 303 U.S. 41, 49-50 (1938), and is therefore un­
affected by the Court of Appeals’ characterization of Guy’s al­
legedly untimely filing as a jurisdictional defect. I t is also con­
sistent with the long-standing rule that jurisdiction exists for a 
court to issue orders, enforceable in contempt proceedings, with 
respect to cases before it, even if it is later determined that juris- 
dicion did not exist to rule on the merits. United States v. United 
Mine Workers of America, 330 U.S. 258, 289-95 (1947); United 
States v. Shipp 203 U.S. 563 (1906).



27

CONCLUSION

For the foregoing reasons it is respectfully submitted 
that the judgment of the Court of Appeals for the Sixth 
Circuit should be reversed.

Respectfully submitted,

J ack Greenberg  
J ames M. N abrit, III 
E ric S ch n a pper  
B arry L. G oldstein  

10 Columbus Circle 
New York, New York 10019

A. C. W h a rto n

Memphis and Shelby County 
Legal Services Association 
46 North Third Street 
Memphis, Tennessee 38103

Of Counsel:
A lbert J .  R osenthal

435 West 116th Street 
New York, New York 10025



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