Guy v. Robbins & Myers, Inc. Petition for a Writ of Certiorari to the US Court of Appeals for the Sixth Circuit

    I k t h e

irem? (Emtrt ut tip? Htutpfc 0tatiw
October Term, 1975 

No. 75-.......

D ortha A l len  Guy ,
Petitioner,

—v_

R obbins & M yers, I no .

PETII ION FOR A WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

J ack Greekberg  
E ric S ch n a pper  
B arry L. G oldstein  

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, N. Y. 10025



TABLE OF CONTENTS

Table of Authorities ......................................................  i
Opinions Below ...........................     1

Jurisdiction ....................................   2

Question Presented ...........................................    2

Statutory Provisions Involved .....     2

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

Reasons for Granting the W rit..................    7

I. The Decision Below Is in Conflict With the Deci­
sions of Other Courts of Appeals on the Same 
Matters ...........................................   8

II. The Case Presents an Important Question of Fed­
eral Law Which Should Be Settled by This Court 12

Conclusion......................................   17

Appendix—•

Opinion of the District Court, June 12,1974 ..........  la
Opinion of the District Court, June 19, 1974 ..........  6a
Opinion of the Court of Appeals, October 24,1975 .. 11a 
Order ............................................................   23a

Table of Authorities

Cases:

Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975) .... 14 
Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974)

5, 8,16-17

PAGE



11

Bradley v. School Board of the City of Richmond, 416
U.S. 696 (1974) .......... ............. ........... .................. ....11,16

Brown v. General Services Administration, No. 74-768 
cert, granted, 421 U.S. 987 (1975) ............................ 7,18

Culpepper v. Reynolds Metals Company, 421 F.2d 888 
(5th Cir. 1970) ............ ................ ' ............... ..............  8, 9

Davis v. Valley Distributing Co., 522 F.2d 827 (9th 
Cir. 1975) ....................................... ................ .......... 11,12

Griggs v. Duke Power Co., 401 U.S. 424 (1971) ..........  14

Hutchings v. United States Industries, Inc., 428 F.2d 
303 (5th Cir. 1970) .............................. ............ ......... 8,17

Johnson v. Railway Express Agency, Inc., 421 U.S.
454 (1975) ........... ........................... ................ ....... ...16,17

Laffey v. Northwest Airlines, Inc., 321 F. Supp. 1041
(D. D.C. 1971) ........... ............ ......................... ...........  13

Love v. Pullman Corp., 404 U.S. 522 (1972) .......... 9,11,15

Malone v. North American Rockwell Corporation, 457
F.2d 799 (9th Cir. 1972) ........... ...... .........................  8, 9

McDonald v. Santa Fe Transportation Company, No.
75-260 cert, granted 46 L.Ed.2d 248 (Nov. 3, 1975) ..7,18 

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) 5
Moore v. Sunbeam Corp., 459 F.2d 811 (7th Cir. 1972) 9

Phillips v. Columbia Gas of West Virginia, Inc., 347 
F. Supp. 533 (S.D. W.Va. 1972), aff’d 474 F.2d 1342
(4th Cir. 1972) ...........................................................  9

Place v. Weinberger, No. 74-116, cert, denied, 419 U.S.
1040 (1974), Petition for Rehearing pending ...........7,18

PAGE



Ill

Reeb v. Economic Opportunity Atlanta, Inc., 516 F.2d
PAGE

924 (5th Cir. 1975) ......................................................  9

Sanchez v. Trans World Airlines, Inc., 499 F.2d 1107 
(10th Cir. 1974) .........................................................  8

Thorpe v. Housing Authority of the City of Durham,
393 U.S. 268 (1969) .................. ................................ 16

Statutes:
28 U.S.C. § 1254(1) ........... ........................... ...... ........... 2
29 U.S.C. § 206(d)(1) ....................................................  13
42 U.S.C. § 1981 ................ ................................. .......4, 5,17
42 U.S.C. §§ 2000(e) et seq (Title VII, Civil Rights 

Act of 1964) ............................................................Passim
42 U.S.C. § 2000e-5(d) .................................................. 2
42 U.S.C. § 2000(e)-5(e) .............................................. 3,10
42 U.S.C. §2000e-5(f) .....    13
Section 14 of the Equal Employment Opportunity Act 

of 1972, 86 Stat. 103 ...............................................3, 4,11

Other Authorities:
118 Cong. Rec. 7167 (March 8, 1972) ............................  15
H.R. Rep. No. 92-238, 92d Cong., 1st Sess. 3 (1971) ......  11
S.Rep. No. 92-415, 92d Cong., 1st Sess. 6 (1971) ..........  11
EEOC Decision No. 70-675, March 31, 1970, CCH 

EEOC Dec. TT 6142 (1973), CCH Empl. Prac. Rep.
If 2325.123 ....................................................................  14

EEOC Decision No. 71-687, Dec. 16, 1970, CCH EEOC 
Dec. 11 6186 (1973), CCH Empl. Prac. Rep. 1f 2325.302 14



I n t h e

8>npxmw Court of tip HUnxtxb B M xb
October Term, 1975 

No. 75-.......

D ortha A l len  Gu y , 

—v.—

R obbins & M yers, I n c .

Petitioner,

PETITION FOR A WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

The petitioner respectfully prays that a writ of certiorari 
issue to review the judgment and opinion of the United 
States Court of Appeals for the Sixth Circuit entered in 
this proceeding on October 24,1975, rehearing and rehearing 
en banc having been denied December 9, 1975.

Opinions Below

The decision of the United States Court of Appeals for 
the Sixth Circuit and the order denying the petitions for 
rehearing and rehearing en banc of the petitioners herein, 
reported at 525 F.2d 124, are reprinted infra at 11a and 
23a.1 The memorandum opinion and order of the United 
States District Court for the Western District of Tennessee 
dismissing plaintiff’s action and its order adhering thereto 
on reconsideration, reported at 8 E.P.D. TTTT 9573 and 9574, 
are reprinted infra at la  and 6a, respectively.

1 This form of citation is to pages of the Appendix.



2

Jurisdiction

The judgment and opinion of the Court of Appeals was 
entered on October 24, 1975. The petitioner’s petition for 
rehearing and rehearing en banc were denied on December 
9, 1975. Jurisdiction of this Court is invoked pursuant to 
28 U.S.C. §1254(1).

Question Presented

Petitioner’s employer discharged her on October 25, 1971. 
On October 27, 1971, a union grievance was filed on her 
behalf, which was denied on November 18, 1971. February 
10, 1972, 108 days after her discharge, but only 84 days 
from denial of her grievance, petitioner filed a Title VII 
charge with the Equal Employment Opportunity Commis­
sion alleging racial discrimination.

Did the Court of Appeals err in dismissing this Title VII 
action on the ground that the charge which petitioner filed 
with the EEOC was untimely?

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



3

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 TJ.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
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:



4

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.

Statement o f the Case

The petitioner, Dortha Allen Guy, brought this action 
under Title VII of the Civil Rights Act of 1964, as amended 
by the Equal Employment Opportunity Act of 1972, 42 
U.S.C. § 2000e et seq., and the Civil Eights Act of 1866, 
42 U.S.C. § 1981. Mrs. Guy’s complaint, brought against 
her former employer, respondent Robbins & Myers, Inc. 
(the Company), and her labor union, Local 790 of the In­
ternational Union of Electrical, Machine and Radio Work­
ers (the Union), alleged that the Company had discrim­
inated against her because of her race (black), both in dis­
charging her and in failing to reinstate her, and that the 
Union had not fairly represented her in grievance pro­
ceedings.

Mrs. Guy was discharged from her employment on Oc­
tober 25, 1971. Two days later, on October 27, 1971, she 
caused a grievance to be filed on her behalf,3 pursuant 
to the provisions of the collective bargaining agreement 
between the Company and the Union. The grievance stated: 
“Protest unfair action of company for discharge. Ask that 
she be reinstated with compensation for lost time.” It 
was unsuccessfully carried through the third step of the 2

2 Plaintiff wa's absent from work from October 24, 1971 until 
October 29, 1971, and thus was not present on the day of her dis­
charge. One of her co-workers filed the grievance on her behalf. 
When plaintiff returned to work on October 29, 1971, she imme­
diately began personally processing the grievance through the' 
various steps of the grievance-arbitration process.



5

grievance process, where it was denied in writing by the 
Company’s Personnel Director on November 18, 1971. The 
denial simply stated that the appellant had been right­
fully discharged. Plaintiff did not press this grievance 
beyond the third step, and the Union accordingly did not 
take appellant’s claim to arbitration.3

On February 10, 1972, 108 days after her discharge but 
only 84 days following the denial of her grievance, Mrs. 
Guy filed a charge with EEOC, alleging racial discrimina­
tion in her discharge. EEOC accepted and processed her 
charge, and informed her on November 20, 1973 that it had 
found no reasonable cause to believe that her discharge 
was racially motivated4 and giving her formal notice of 
her rights to sue under Title VII. She then instituted an 
action against the Company and the Union in the United 
States District Court for the Western District of Ten­
nessee.

However, by Order of June 12, 1974, the District Court 
granted the Company’s motion to dismiss5 6 plaintiff’s Title 
VII allegations on the ground that plaintiff had not filed 
her charge of discrimination within the 90-day period pre­

3 The four Steps provided for in the Collective Bargaining Agree­
ment (Article XVIII-Grievance Procedure) follow lines that are 
fairly common in such agreements. Step 1 provides for proceed­
ings 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.

4 A finding of no reasonable cause is not a bar to 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) .

6 The district court had earlier dismissed the case, insofar as it 
was grounded on 42 U.S.C. § 1981, because of the applicable Ten­
nessee statute of limitation.



6

scribed by Section 706(d) of the Civil Rights Act of 1964 
before its amendment in 1972. The Court further held 
that the 90-day period had not been tolled during the 
processing of her grievance (la-5a). On June 19, 1974, the 
District Court refused to modify its prior holdings (6a-lQa).

Subsequently, the defendant Union was realigned as a 
party plaintiff, Mrs. Guy and the Union filed timely No­
tices of Appeal to the United States Court of Appeals 
for the Sixth Circuit, and EEOC appeared in support of 
their appeal as amicus curiae.

The Court of Appeals affirmed the dismissal of the 
complaint on October 24, 1975, by a 2-1 vote (lla-22a) 
and denied petitioner’s petition for rehearing and rehear­
ing en banc on December 9, 1975 (23a).

The Court of Appeals (1) held that Mrs. Guy by filing 
her Union grievance did not toll the running of the Title VII 
statute of limitations for filing a charge with the EEOC; 
(2) implicitly held that the statute of limitations for filing 
a charge with the EEOC began to run on the day that peti­
tioner was initially dismissed, even though the company’s 
decision did not become final until the completion of the 
grievance process; and (3) held the 1972 amendments to 
Title VII, insofar as they extended the period for filing 
EEOC charges from 90 to 180 days, should not be applied 
to cases which arise before the amendment but which were 
still pending on the effective date of those amendments.



7

Reasons for  Granting the Writ

The question presented raises three important issues 
concerning the implementation of Title YII by the courts 
and by the EEOC. The Sixth Circuit’s decision regarding 
each of these issues is in conflict with the decisions of 
other courts of appeals. All three of the issues in con­
flict are now directly before the Court in McDonald v. Santa 
Fe Transportation Company, No. 75-260, cert, granted, 
46 L.Ed 2d 248 (Nov. 3, 1976).6 The issue in conflict con­
cerning the application of the 1972 amendments to litiga­
tion pending as of the effective date of those amendments 
is before this Court in a closely analogous form in Brown v. 
General Services Administration, No. 74-768, cert, granted, 
421 U.S. 987 (1975) and Place v. Weinberger, No. 74-116, 
cert, denied, 419 U.S. 1040 (1974), Petition for Rehear­
ing pending.7

6 In order to reach the question presented in McDonald, whether 
a white employee may raise a claim of race discrimination under 
Title YII, it must be determined that the statutory period for 
filing a charge with the EEOC was tolled pending grievance pro­
ceeding's and that the 1972 amendment to Title VII extended the 
period of time within which to file a charge with the EEOC from 
90 to 180 days to all pending litigation. See Brief Amicus Curiae 
of the NAACP Legal Defense and Educational Fund, Inc., at p. 2.

If the Court determines either that the statute of limitation is 
tolled during the processing of a grievance or that the 180 day 
provision applies to pending charges, then the Guy decision must 
be reversed.

7 Both Brown and Place present the question, inter alia, whether 
the 1972 amendments to Title YII, insofar as they create new 
remedies for federal employees, should be applied to cases still 
pending on the date when the amendments become effective.



8

I.

The Decision Below Is in Conflict With the Decisions 
of Other Courts of Appeals on the Same Matters.

A.

The Sixth Circuit’s holding that the filing of a union 
grievance does not toll the running of the time period 
for filing a Title YII charge conflicts with decision of 
three other circuits.8 The Fifth,9 Ninth10 11 and Tenth Cir­
cuits11 have all held that the time within which an ag­
grieved person might file Title VII charges with EEOC

8 In this case the Sixth Circuit held “ [i] t  would therefore ap­
pear to us to be utterly incongruous for us to hold that a federal 
statute which contains jurisdictional prerequisites for the exer­
cise of its remedies is tolled by the mere filing of a grievance 
under a collective bargaining agreement”. 17a and 525 F. 2d at 
128.

9 “We, therefore, hold that the statute of limitations . . .  is 
tolled once an employee invokes his contractual grievance rem­
edies in a constructive effort to seek a private settlement of his 
complaint.” (footnote omitted) Culpepper v. Reynolds Metals Com­
pany, 421 F.2d 888, 891 (5th Cir. 1970) ; see also IlutcMngs V. 
United States Industries, Inc., 428 F.2d 303, 312 (5th Cir. 1970).

10 “Since Title VII seeks to utilize private settlement as an ef­
fective deterrent to employment discrimination, we hold that the 
210-day statute of limitations is tolled while an employee in good 
faith pursues his contractual grievance remedies in a constructive 
effort to obtain a private settlement”. Malone v. North American 
Rockwell Corporation, 475 F.2d 799, 781 (9th Cir. 1972).

11 Sanchez v. Trans World Airlines, Inc., 499 F.2d 1107, 1108
(10th Cir. 1974). In Sanchez, which was decided after Alexander 
v. Gardner-Denver Corp., 415 U.S. 36 (1974), the Tenth Circuit 
argues that the tolling rule was “in tune with the construction 
given by the Supreme Court and other federal courts to this kind 
of provision,” , id. The Tenth ■ Circuit’s interpretation of the ap­
plicable Supreme Court decisions contradicts the interpretation of 
the Sixth Circuit, 17a and 525 F.2d at 128. - - ■



9

was tolled for the preiod during which contractual griev­
ance proceedings were being pursued.12

B.

There is an additional, related, but slightly different, 
conflict between the court below and the Seventh Circuit. 
The Sixth Circuit implicitly held that the period of lim­
itations commences from the date of the discharge, rather 
than the date on which grievance proceedings ended and 
the company’s decision to fire Mrs. Guy became final. In 
Moore v. Sunbeam Corp., 459 F.2d 811 (7th Cir. 1972), 
the court took the opposite approach, and computed the 
statutory period within which charges might be filed with 
EEOC from the date on which grievance proceedings con­
cluded.13 Id. at 826-27 and n. 40.

12 The court below characterizes the 90-day limitation period on 
filing of charges with EEOC as an integral part of the right created 
by Title VII rather than as a statute of limitations subject, to such 
equitable considerations as tolling in appropriate situations. This 
interpretation is inherently in conflict with the decisions of the 
Fifth, Ninth and Tenth Circuits cited above, as well as with the 
Seventh Circuit case of Moore v. Sunbeam Corp., 459 F.2d 811 
(1972), referred to below. This characterization was also specifi­
cally considered and rejected in Beeb v. Economic Opportunity 
Atlanta, Inc., 516 F.2d 924, 929 (1975), and seems totally incon­
sistent with the decision of this Court in Love v. Pullman Co., 
404 U.S. 522 (1972).

13 Although perhaps technically not a holding of the court, since 
the computation led to the conclusion that despite the extension 
of the period during which he might have filed, the plaintiff was 
nevertheless too late, the opinion clearly established the law of 
the Seventh Circuit on the subject.

See also Phillips v. Columbia Gas of West Virginia, Inc., 347 
F. Supp. 533, 538 (S.D. W. Va. 1972), affirmed w.o. op., 474 
F.2d 1342 (4th Cir. 1972), treating the statutory time as starting 
to run upon the conclusion of the grievance proceedings, but dis­
missing the charge on other grounds. The analysis adopted in 
Moore v. Sunbeam Corp., supra, had also been advanced in Cul­
pepper v. Reynolds Metals Co., supra, but not passed upon in that 
case because the decision that the limitation had been tolled made 
it unnecessary to do so. 421 F.2d at 893, n. 5. See also, Malone 
v. North American Rockwell Corp., supra, 457 F.2d at 781, n. 2.



10

The approach of the Seventh Circuit in Moore is in turn 
in conflict with the decisions of the Fifth, Ninth and Tenth 
Circuits. Under the tolling approach of the Fifth, Ninth 
and Tenth Circuits the statute would have been tolled dur­
ing the 22 days of Mrs. Guy’s grievance proceedings, from 
October 27 through November 18, 1971. Since Mrs. Guy 
filed her charge on the 108th day after her discharge, her 
charge under this approach would have been construed as 
being filed on the 86th day and therefore timely. If the 
Seventh Circuit approach had been applied, the statute 
would have started running on November 18,1971 (the date 
of the final resolution of the grievance). The filing by 
Mrs. Guy of an EEOC charge on February 10, 1972, 84 
days later, would have again been held timely. Thus, if 
the Sixth Circuit had followed either of the alternatives 
adopted by the other circuits, Mrs. Guy’s complaint would 
not have been dismissed. However, the conflict between 
the approaches of the Seventh Circuit and that of the Fifth, 
Ninth and Tenth Circuits, may sometimes cause a different 
result. For example, if Mrs. Guy had filed her charge on 
February 15, 1972 (rather than February 10, 1972), the 
charge would have been construed as being filed on the 
89th day pursuant to the approach of the Seventh Circuit 
and thereby timely; however, pursuant to the approach of 
the Fifth, Ninth and Tenth Circuits the charge would have 
been construed as being filed on the 91st day and thereby 
untimely.

C.

The court of appeals also refuses to apply to this case 
the 1972 amendments to Title VII, even though this case 
was still pending on the date when the amendments became 
effective (17a, 525 F. 2d at 128). The 1972 amendment ex­
tended the period in which an EEOC charge must be filed 
from 90 to 180 days, 42 U.S.C. 2000e-5(e). As Judge Ed­



11

wards noted in Ms dissent (19a-20a), this decision is 
squarely, in conflict with the decision of the Ninth Circuit 
in Davis v. Valley Distributing Go., 522 F, 2d 827 (1975), 
which held that the 180-day rule must be applied to such 
pending cases. The decision in the instant ease, is clearly 
inconsistent with the rule reaffirmed by this Court in Brad­
ley v. School Board of the City of Richmond, 416, IT.8. 696, 
711 (1974), “that a court is to apply the law in effect at 
the time it renders its decision, unless there doing so would 
result in manifest injustice or there is statutory direction 
or legislative history to the contrary.” 14

The decision in this case as to the applicability of the 
1972 amendments to pending charges is also inconsistent 
with Love v. Pullman Co., 404 U.S. 522 (1972), where this 
Court refused to apply technicalities, such as a formal­
istic double filing of charges of discrimination, to the pro­
cedures which are undertaken by laymen under Title VII.15

14 Here the statute specifically mandates the application of the 
amendments to pending charges, Section 14 of the Equal Employ­
ment Opportunity Act of 1972; 86 Stat. 103, 113.

The question of the applicability of the 1972 amendments to 
previously filed charges is independently important, in the light 
of the huge number of charges that were being filed every year 
with EEOC, and the large backlog of charges on which EEOC 
had not completed processing and which were still pending at the 
time of the enactment of the amendments. See H.R. Rep. No. 
92-238, 92d Cong., 1st Sess. 3 (1971); S. Rep. No. 92-415, 92d 
Cong., 1st Sess. 6 (1971).

15 Gf. Love v. Pullman Co., 404 U.S. 522 (1972), in which a 
charge had been filed prematurely with EEOC before submission 
to a state anti-discrimination agency, contrary to the statutory 
requirement that where there was such a state agency charges were 
to be filed with EEOC only after the expiration of certain time 
period's following filing with the state agency. After completion 
of the state proceedings, EEOC assumed jurisdiction over the 
charge without requiring a second filing, and this Court upheld its 
practice. The Court stated:

. . > To require a second “filing” by the aggrieved party after 
termination of state proceedings would serve no purpose other



12

In both the instant case and the Davis case, the plaintiffs 
were discharged more than 90 but less than 180 days before 
they filed charges with EEOC. In both cases, charges were 
filed before March 24, 1972, the effective date of the 1972 
amendments to Section 706 of the 1964 Act (the section 
including the time requirements for filing of charges with 
EEOC). In both cases the discharge had occurred less 
than 180 days before March 24, 1972; therefore in both 
cases, if the plaintiffs had engaged in the ridiculously 
superfluous act of re-filing with EEOC on or shortly after 
March 24, 1972, their position would have been immune 
to challenge. The Ninth Circuit, in the Davis case, refused 
to stultify the law by holding that an aggrieved party would 
forfeit his claim by failing to file a second, redundant 
charge.16 The Sixth Circuit, in the instant case, held the 
opposite way.

II.
The Case Presents an Im portant Q uestion o f Federal 

Law W hich Should Be Settled by This Court.

This case involves important and frequently recurring 
questions arising out of the interrelationship between the 
Congressional policies forbidding employment discrimina­
tion and those encouraging utilization of grievance-arbitra­
tion procedures.

than the creation of an additional procedural technicality, 
such technicalities are particularly inappropriate in a statu­
tory scheme in which laymen, unassisted by trained lawyers, 
initiate the process. (404 U.S. at 526-27)

16 We should point out that Davis might be distinguished on 
the ground that there was a technical new “filing” by EEOC it­
self of plaintiff’s late charge following remand from a state agency, 
just before March 24, 1972. But this scarcely weakens the main 
thrust of the Davis holding, that the retroactive provision in the 
1972 amendments was intended to apply, inter alia, to previously 
filed charges, thus modifying the time within which those charges 
had to be filed with EEOC.



13

The conflict among the circuits is an irresistible invita­
tion to forum-shopping. The venue provision of Title YII 
provides that a suit may be filed in several alternative 
jurisdictions.17 Until this Court acts, Title VII plaintiffs 
will, or will not, lose their Title VII rights depending not 
only on the happenstance of the state in which they work, 
but also depending on the resourcefulness of their lawyer 
to select the jurisdiction with the “proper” tolling deci­
sions.18 Because many major employers and unions oper­
ate nationwide, venue often exists in several different cir­
cuits.19

This conflict poses serious administrative problems for 
the EEOC. The EEOC must apply different rules as to 
whether a charge should be deemed timely and accepted 
according to the circuit involved. Where, as is common, 
venue would lie in several different circuits with different 
rules, the EEOC will have to resolve complex problems of 
conflict of laws. EEOC has heretofore repeatedly held that 
the statutory limitations on the time within which charges

17 The plaintiff may bring his Title YII action in the district 
where the unlawful act is alleged to have been committed, where 
plaintiff would have worked but for the alleged practice or where 
employment records pertaining to the unlawful practice are main­
tained and administered, or if the putative employer or union is 
not found within any such district, a Title VII action may be 
brought within the judicial district in which he has his principal 
office, 42 U.S.C. §2000e-5(f).

18 Of course, counsel may devise many theories for selecting the 
jurisdiction in which there is an “appropriate” rule on “tolling.” 
Cf. Laffey v. Northwest Airlines, Inc., 321 F. Supp. 1041 (D. 
D.C. 1971). (Because the plaintiff joined a cause of action under 
Title VII with a cause of action under the Equal Pay Act of 1963, 
29 U.S.C. §§206 (d) (1), et seq., the district court held that the 
general venue provision for federal courts applied.)

19 Often, as is the case for a plaintiff like Mrs. Guy who lives in 
Memphis, it is convenient to bring an action in a number of cir­
cuits. I t is only a short drive from Memphis to either the Eighth 
or the Fifth Circuits.



14

might be filed with it were tolled during the prosecution 
of grievance proceedings, and that where the timeliness 
of the charges depended upon such tolling EEOC had 
authority to process them and, if conciliation was not 
achieved, to authorize the charging parties to commence 
suit in district court pursuant to Title VII.20 EEOC in­
terpretations of Title VII are, of course, entitled to great 
deference. Griggs v. Duke Power C o 401 U.S. 424, 433-34 
(1971); Albermarle Paper Co. v. Moody, 422 U.S. 405, 431 
(1975). If the court does not resolve the conflicts between 
the circuits, the EEOC will be confronted with the bureau­
cratic tangle of processing charges of discrimination ac­
cording to the state in which they arise.21

The other circuits have permitted tolling of the period 
for filing of charges with EEOC while grievance proceed­
ings were being pursued, in order to protect against in­
advertent loss of Title VII rights by employees following 
the common-sense approach of seeking first to resolve 
their disputes through the machinery established by the 
collective bargaining agreements. The decision of the court

20 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. -fl 6142 (1973), CCH 
Empl Prac. Rep. ff 2325.123, and EEOC Decision No. 71-687, Dec. 
16, 1970, CCH EEOC Dec. If 6186 (1973), CCH Empl. Prac. Rep. 
^ 2325.302. Moreover, it has consistently both accepted and pro­
cessed claims its jurisdiction over which has depended upon such 
tolling, and has issued right-to-sue letters upon failure of concilia­
tion in such cases—as it did, for example, in the instant case. Fi­
nally, EEOC has reiterated its interpretation of the statute in its 
amicus curiae briefs filed in support of petitioner’s appeal and 
petition for rehearing in the court below.

21 Federal officials in the Atlanta regional office of EEOC which 
is responsible for processing charges of discrimination arising in 
states covered by both the Fifth and Sixth Circuits would _bê  con­
fronted with accepting and processing charges filed by Mississip- 
pians which on the same facts they would reject as untimely filed 
if filed by Tennesseeans.



15

below now casts serious doubt as to whether such employ­
ees are in fact protected. Unless that doubt is resolved, 
civil rights organizations, labor unions, and EEOC, will 
have the practically impossible task : to , try to keep em­
ployees informed of the danger that if they do not go 
through the motions of filing a charge with EEOC while 
pursuing their grievance remedies they may lose their 
right to sue under Title VII. The difficulty of the task is 
compounded by the fact that the message concerning-the 
application of a federal statute will be different if the 
member of the union or civil rights organization works in, 
for example, Mississippi, Tennessee or Illinois.. ;

Procedures of the type involved in this case are common 
in collective bargaining agreements involving millions of 
workers. Complaining employees are seldom represented 
by attorneys at the grievance stage, nor are many of them 
knowledgeable as to legal matters. See Love v. Pullman 
Co., 404 U.S. 522, 527 (1972). As set forth above, there 
has been a steady stream; of reported Cases involving the 
principal question raised here—whether pursuit of the 
grievance procedures does or does not toll the statute of 
limitations for filing charges with the EEOC. In almost 
all of thes cases the courts have held that the limitations 
are tolled. Congress, in enacting the 1972 amendments to 
Title VII, was apparently concerned over the problem of 
potential forfeiture of Title VII claims by uninformed 
employees allowing the filing period to expire, and indi­
cated its approval of the. prevailing tendency of the courts 
to ameliorate.. some of the harsher applications of the 
limitation.22 , . ,, .

The rule adopted by the Sixth Circuit in this'case is 
contrary to public-policy- in that it requires .’the filing of 
an administrative , charge! before , it is even, clear if  there

22118 Cong. Rec. 7167 (March 8, 1972.).



16

is an act which “aggrieves” the individual, and, if there 
is such an act, then before the final scope of that act has 
been defined. In a plant which is subject to union griev­
ance proceedings, any decision by the employer is tenta­
tive until those proceedings have been completed. Until 
that time the aggrieved employee does not know what ac­
tion, if any, the employer will actually take. The instant 
decision requires an employee to file a charge with EEOC 
before he or she knows for sure what discriminatory con­
duct the employer will undertake or whether he will de­
cide to persist in such conduct at all. That rule makes no 
more sense than requiring an employee, aggrieved by the 
decision of his or her foreman, to file a charge with EEOC 
before appealing that decision to higher management.

The courts of appeals holding23 that the amendment to 
Title VII passed in 1972 which extended the period for 
filing a charge with the EEOC from 90 to 180 days does 
not apply to pending charges and litigation is contrary 
to the principle “that a court is to apply the law in ef­
fect at the time it renders its decision.” Bradley v. Rich­
mond School Board, 416 U.8. 696, 711 (1974); Thorpe v. 
Housing Authority of the City of Durham, 393 U.S. 268 
(1969); see also supra at 11.

The court of appeals ruling that the filing of a union 
grievance did not toll the running of the Title VII statute 
of limitation for filing an EEOC charge was based on a 
misinterpretation of Alexander v. Gardner-Denver Co., 415 
U.S. 36 (1974) and Johnson v. Railway Express Agency, 
Inc., 421 U.S. 454 (1975). Alexander holds that grievance- 
arbitration procedures and Title VII actions are inde­
pendent in the sense' that utilization of the former 'is 
not an election of remedies barring employment of the 
latter. The Court, however, makes clear that “Title VII

: 2317a and 525 F.2d at 123. Ut U vl -  v : '



17

was designed to supplement, rather than supplant, exist­
ing laws and institutions relating to employment discrim­
ination.” 415 U.S. at 48-49. And its conclusion “that 
the federal policy favoring arbitration of labor disputes 
and the federal policy against discriminatory employment 
practices can best be accommodated by permitting an em­
ployee to pursue fully both his remedy under the griev­
ance-arbitration clause of a collective-bargaining agree­
ment and his cause of action under Title VII” (415 U.S. 
at 59-60) argues against, rather than for, the decision 
of the court below that the employee’s pursuit of the 
grievance-arbitration procedure should be allowed to re­
sult in the inadvertent loss of his rights under Title VII.24 
Johnson v. Railway Express Agency, is not applicable to 
the issue presented. In ruling that the processing of 
Title VII charges does not toll the statute of limitations 
for 42 U.S.C. § 1981, Johnson holds only that under 
§ 1981 the state statute of limitations that is borrowed 
is applied in its entirety, including the presence or ab­
sence of the possibility of tolling as part of the state’s 
statutory scheme. (421 U.S. at 463-64). It has no bearing 
upon the question of Congressional intention with regard 
to the propriety of tolling of limitation periods provided 
in a federal statute.

CONCLUSION

For these reasons, a writ of certiorari should be issued 
to review the judgment and opinion of the United States 
Court of Appeals for. the Sixth Circuit.

24 At the very least, Alexander v. Gardner-Denver Co., does not 
foreclose the issue adversely to petitioner’s claim. Compare Hutch­
ings v. United States Industries, Inc., 428 F.2d 303 (5th Cir. 
1970), squarely holding both that institution of grievance-arbitra­
tion proceedings tolled the statute of limitations for filing charges 
with EEOC and that ah adverse decision in arbitration, did not pre­
clude a cause of action under Title Vll.



. Alternatively, ; this petition for a writ of certiorari 
should be held pending- the. resolution of McDonald v. 
Santa Fe Transportation Company, Brown v. General. 
Services Administration, and Place v. Weinberger If 
the Court determines that the processing of a union griev­
ance tolls the running of the Title. VII statute of limita­
tions or that the Title VII statute of limitations period 
does not run until after the completion of the grievance 
process {McDonald), or that the 1972 amendments to 
Title VII should be applied to pending cases {McDonald, 
Brown or Place), the Court, should grant the writ of 
certiorari, vacate, the. decision of the Sixth Circuit and 
remand with, appropriate instructions.

Respectfully submitted,
J ack Greenberg

E ric S ch n a pper  
. B arry L. G oldstein  

...... 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, N. Y. 10025 ~

: 25 As: set forth above; McDonald v. Santa Fe Transportation Qo.f 
raises all three of the issues in conflict presented by this petition; 
Brown and Place raise a closely analogous issue concerning the ap­
plication of the 1972 amendments to Title. V II to charges' and liti­
gation pending as of thereifectiye’ date- of : the .• amendiients,., se'g 
supra at 7.



A P P E N D I X



l a

I n  t h e

UNITED STATES DISTRICT COURT 
F ob t h e  W estebn  D istbict  of T en n essee  

W esteen  D ivision  

No. C-74-165

O p in io n  o f  t h e  D is t r ic t  C o u r t ,  J u n e  1 2 ,  1 9 7 4

D oktha A llen  Gu y ,
Plaintiff,

vs.

R obbins & M yebs, I n c . (H tjntee F an D iv isio n ), et al,

Defendants.

M emobandum  Op in io n  and Obdeb

Defendant has renewed its motion to dismiss plaintiff’s 
suit because of her failure to comply with 42 U.S.C. §2000e- 
5(d) requiring the filing of a charge with Equal Employ­
ment Opportunity Commission within 90 days after the 
alleged unlawful employment practice occurred.1 The rele­
vant times and acts that took place in this case all occurred 
prior to March 24, 1972. The amendment extending the 
time for filing 42 U.S.C. §2000e-5(e) was prospective in 
its application. From the pleadings and memorandum filed 
on plaintiff’s behalf, it is clear that she was to report back

1 This provision in the 1964 Civil Rights Act dealing with em­
ployment discrimination was amended March 24, 1972, by the 1972 
Civil Rights Act. (42 U.S.C. §2000e-5(e)).



2a

to work on October 24, 1971, when ber sick leave expired. 
On October 29, 1971, when she returned to work, she found 
that she had been terminated on October 25, 1971, as hav­
ing voluntarily quit, a status she contested by filing a union 
grievance on October 27, 1971. She filed a charge against 
her employer with E.E.O.C. on February 10, 1972, assert­
ing that the Company’s action was unfair. (She did not 
describe it as discriminatory).

“It is true that the statute requires the person aggrieved 
to file a written charge within 90 days; it says so clearly 
and the courts so hold.” Fore v. Southern Bell Tel. Co., 
293 F.Supp. 587, 588 (W.B. N.C. 1968). See also McCarty 
v. Boeing Co., 321 F.Supp. 260 (W.D. Wash. 1970); Younger 
v. Glamorgan Pipe Co., 310 F.Supp. 195 (W.D. Ya. 1969); 
Gordon v. Baker Prot. Services, 358 F.Supp. 867 (N.D. 111. 
1973); and Heard v. Mueller Co., 464 F.2d 190 (6th Cir. 
1972).

“It may be conceded that a typical lay-off, without more, 
is not a continuing event, but is a completed act at the 
time it occurs, so that a charge alleging a discriminatory 
lay-off must ordinarily be filed within 90 days thereafter.” 
Sciaraffa v. Oxford Paper Co., 310 F.Supp. 891 (D. Me. 
1970). From the complaint itself the alleged discriminatory 
discharge and refusal to reinstate took ifiace in October, 
1971, more than 90 days prior to the charge with the 
E.E.O.C. on February 10, 1972. Unless the act complained 
about were continuous in its nature, re-occurred after 
October, 1971, or unless the period were somehow tolled, 
plaintiff is barred because of her failure to comply with 
statutory jurisdictional requisites. Choate v. Caterpillar 
Tractor, 402 F.2d 357 (7th Cir. 1968); Mickel v. S. C. State 
Emp. Service, 377 F.2d 239 (4th Cir. 1967); Sanches v. 
Standard Brands, 431 F.2d 455 (5th Cir. 1970).

Opinion of the District Court, June 12, 1974



3a

Senator Everett Dirksen on June 5, 1964, in explana­
tion of changes made by the Senate in the House bill, 
with particular reference to Section 706(d):

‘New Subsection (d) requires that a charge must 
be filed with the Commission, within 90 days after the 
alleged unlawful employment practice occurred, except 
that if the person aggrieved follows State or local pro­
cedures in Subsection (b), he may file the charge with­
in 210 days after the alleged practice occurred or 
within 30 days after receiving notice that the State or 
local proceedings have been terminated, whichever is 
earlier. The additional 120 days is to allow him to 
pursue his remedy by State or local proceedings.” 11 
Cong. Ree. 12297. Banks v. Local Union #136, 296 
F.Supp. 1190 (1968)

Tennessee does not have a civil rights law or did not dur­
ing 1971 and 1972.

Plaintiff contends, on the authority of Culpepper v. 
Reynolds Metals, 421 F.2d 888 (5th Cir. 1970), that the 90 
day period is tolled because she filed a grievance directed 
toward the defendant company within that period.2 See 
Hutchings v. U. S. Industries, 428 F.2d 303, 309 (5th Cir. 
1970); Malone v. North American Rockwell Corp., 457 F.2d 
779, 781 (9th Cir. 1972); Moore v. Sunbeam Corp., 459 F.2d 
811, 826 (7th Cir. 1972). These cases, however, are based 
on the rationale that plaintiff should be encouraged first to 
try the grievance procedures before resorting to the 
E.E.O.C. and that the acts are interrelated in respect to 
disputes over discrimination. Dewey v. Reynolds Metals, 
429 F.2d 324 (6th Cir. 1970) affirmed by a divided Supreme

2 She also complains that the defendant union failed to represent 
her fairly and diligently.

Opinion of the District Court, June 12, 1974



4a

Court, 402 U.S. 689 (1971). Deivey and its progency held 
that pursuing a contractual grievance remedy to its con­
clusion might estop later pursuit by a claimant of E.E.O.C. 
procedures and suit; that the remedies were related and 
interconnected. Culpepper, supra, held, however, that 
utilization of grievance procedures did not estop, preclude, 
or constitute an election of remedies insofar as a grievant 
was concerned who might later claim violation of the 1964 
Civil Eights Act equal employment provisions.

In 1974, however, the Supreme Court unanimously in
Alexander v. Gardner-Denver Co.,----- U .S .------ , 42 L.W.
4214 (2-19-74) disavowed the Dewey v. Reynolds Metals, 
supra, rationale. At page 10 of the slip opinion, the Court 
acknowledges that “Title VII does not speak expressly to 
the relationship between federal courts and the grievance- 
arbitration machinery of collective-bargaining agreements. 
It does, however, vest federal courts with plenary powers 
to enforce the statutory requirements; and it specifies with 
precision the jurisdictional prerequisites that an individual 
must satisfy before he is entitled to institute a lawsuit.” 
(Emphasis ours.) The Court goes on to hold that grievance- 
arbitration procedures neither foreclose nor preclude an 
individual’s E.E.O.C. rights and requirements, nor divest 
the court of jurisdiction to decide equal employment dis­
crimination questions that may arise under the Act. In 
other words, “Title VII manifests a Congressional intent 
to allow an individual to pursue independently his rights 
under Title VII” and other statutes or private contract 
remedies, even though these rights have a “distinctly sep­
arate nature.” (pp. 11, 13 slip opinion, Alexander v. Gard­
ner-Denver, supra). In another place,'pp. 14, 15, Justice 
Powell, speaking for a unanimous court says “Title VII 
strictures are absolute” and “are not susceptible to pro­
spective waiver.”

Opinion of the District Court, June 12, 1974



5a

Since rights under Title VII and under the contract be­
tween the parties “have legally independent origins and 
are equally available,” it appears that both should proceed 
independently and in accordance with their own statutory 
or contractual limitations and requirements. The rationale 
of Alexander v. Gardner-Denver Co., supra, persuades this 
Court that the 90 day Title VII requirement for filing a 
claim with the E.E.O.C. after the occurrence of the alleged 
discriminatory event is not effected or abated or tolled by 
an independent grievance-arbitration proceeding under a 
contract. The E.E.O.C., after all, is required by the statute 
in question to attempt reconciliation and negotiation of the 
differences before further action is taken. Thus, grievance 
and conciliation procedures independently would work for 
a settlement and disposition of the disputes between em­
ployer and employee. Whether or not an employee files a 
grievance, or files an E.E.O.C. charge, he or she still has a 
separate right to claim 42 U.S.C. §1981 (1866 Civil Rights
Act) violations. Long v. Ford Motor Co., ----- F .2d------
(6th Cir. 4-30-74). That employee, however, must abide 
by applicable statute of limitations requirements as to a 
Section 1981 claim, just as he or she must also comply with 
contractual or 42 U.S.C. §2000e-5(e) prerequisites.

Since plaintiff did not file her claim with the E.E.O.C. 
within 90 days after her alleged discriminatory discharge, 
defendant employer’s motion to dismiss the 1964 Civil 
Rights, Title VII, claim is granted.

This 12th day of June, 1974.
H arry (Illegible)

United States District Court Judge
Certified  T rite C opy 

J .  F r a n k lin  R eid , Clerk 
By (Illegible)
Deputy Clerk

Opinion of the District Court, June 12, 1974



6a

I n t h e

UNITED STATES DISTRICT COURT 
F ob t h e  W estern  D istrict oe T en n essee  

W estern  D ivision  

No. C-74-165

O p in io n  o f  t h e  D is t r ic t  C o u r t ,  J u n e  1 9 ,  1 9 7 4

D ortha All e n  G u y ,

vs.
Plaintiff,

R obbins & M yers, I n c .
(Hunter Fan Division), et al.,

Defendants.

ORDER ON RECONSIDERATION

The Court on May 30, 1974, entered an order in this 
cause dismissing plaintiff’s alleged cause of action under 
42 U.S.C. §1981 and overruling defendant’s motion on the 
question as to whether the filing of her complaint came 
within the 90 day period after issuance of the right-to-sue 
letter. (In effect, because it involved a possible factual 
dispute, it was held to be appropriate to reserve a ruling 
for a hearing on the merits.) Without then expressly so 
ruling, the Court indicated that the recent Supreme Court 
decision of Alexander v. Gardner-Denver Co., —— U.S.
------, 94 S.Ct. 1011, 42 L.W. 4214, 1974) “might indicate
that the Union contractual grievance and the E.E.O.C. 
claim, being independent of each other, . . . would not



7a

amount to a tolling of nor effect any extension of a [90 
day] limitation period. See Johnson v. R.E.A., 489 F.2d 
525, 529 (6tli Cir. 1973) reh. denied, (1974) petition for 
certiorari applied for.”

Plaintiff moved to amend her complaint, and defendant 
Robbins & Myers moved the Court to reconsider and 
formally rule on its motion to dismiss alleging plaintiff’s 
failure to file her charge with E.E.O.C. within 90 days of 
the happening of the alleged discriminatory act on defen­
dant Robbins & Myers’ part.

The Court then entered an order ruling on defendant 
Robbins & Myers’ motion to dismiss and sustaining it on 
the failure of plaintiff to file a claim with E.E.O.C. within 
the statutory period. (See the memorandum opinion and 
order dated June 12, 1974). Plaintiff has moved that the 
Court reconsider this opinion, especially in light of Schiff 
v. Mead Corp., 3 EPD #8043 (6th Cir. 1970), unreported. 
The Court was aware of this decision, however, when it 
rendered its opinion adverse to plaintiff’s contentions. The 
primary factor involved there was a change of position on 
the part of E.E.O.C. which influenced the Court1 to decide 
that the filing of a contractual grievance might toll the 90 
day statutory period prescribed in 42 U.S.C. §2000e-5(d).1 2 
The Schiff v. Mead Corp. ease, however, was decided at a 
time that Dewey v. Reynolds Metals, 429 F.2d 324 (6th Cir. 
1970) affirmed by an equally divided Supreme Court, was 
considered the law in this Circuit. The Dewey rationale 
was overruled in Alexander v. Garden-Denver Co., supra. 
It was there emphasized that the E.E.O.C. claims and 
procedures were' separate and independent and that action

1 (ILS.D.C. N.D., Ohio)
2 Now amended by the 1972 Equal Employment Opportunity 

Act.

Opinion of the District Court, June 19, 1974



8a

or conduct taken in behalf of one such claim had no pre­
clusive effect on the other. Johnson v. R.E.A., supra, had 
held that filing of an E.E.O.C. charge did not toll the statute 
of limitations on a 42 U.S.C. §1981 civil rights action. Long
v. Ford Motor Co., #73-1993, ------ F.2d -——-  (6th Cir.
4-30-74) held that 42 U.S.C. §2000e (Title VII) actions and 
42 U.S.C. §1981 are independent of one another, and, as we 
construe it, that the District Court3 was correct in holding 
that the Title VII statutory time requirements for filing 
a charge were not tolled by the filing of a suit under the 
1866 Civil Rights Act. On the other hand, the District 
Court’s findings for the claimant under the latter statute 
were to be reconsidered on remand in light of McDonnell 
Douglas Corp. v. Green, 411 U.S. 792 (1973).

On the face of the Title VII statute, the only means of 
tolling the 90 day period for filing an E.E.O.C. charge after 
the alleged discriminatory event was (and is) a filing of a 
charge or claim with a state or local agency having au­
thority to deal with equal employment opportunities and 
discrimination. This plaintiff Guy could not do, because 
Tennessee nor Shelby County has any such agency or law 
authorizing such a body.

After the discharge in question, Guy had a legal right to 
file a grievance against her employer under the Union con­
tract, provided she adhered to its terms. Whether or not 
she filed her grievance, plaintiff also had a right within 90 
days to file a charge of racial discrimination. Within a 
year, whether or not she pursued contractual or E.E.O.C. 
procedures, she had a right to file suit for alleged dis­
crimination under 42 U.S.C. §1981. Plaintiff failed to fol­
low through with either of the latter two statutory rights 
in accordance with applicable time requirements. Defen­

Opinion of the District Court, June 19, 1974

(U.S.D.C. E.D., Mich.)



9a

dant’s motion to dismiss is proper under these circum­
stances.

It should he noted that plaintiff did in fact pursue her 
grievance through three levels unsuccessfully.4 Further­
more, E.E.O.C. investigated her claim and determined on 
November 20, 1973, that “the Commission finds no reason 
to believe that race was a factor in the decision to dis­
charge. . .” Plaintiff waited until the last day of the 90 
days given her, or until beyond the ninetieth day in which 
to seek the Court’s assistance in filing her Title YII suit 
after having received an adverse determination to her 
claims since October of 1971. This lack of diligence, in and 
of itself, might not constitute a bar, Harris v. Walgreen’s 
Dist. Center, 456 F.2d 588 (6th Cir. 1972), but is indicative 
of plaintiff’s dilatory role in these proceedings throughout. 
See Fehete v. U.S. Steel, 424 F.2d 331 (3rd Cir. 1970) as to 
the effect of a negative E.E.O.C. determination involving 
“possibilities of sophisticated discrimination . . . because 
of European ancestral origin” after an arbitrator’s rein­
statement of claimant with back pay—an entirely different 
situation from that at bar. Compare Beverly v. Lone Star 
Lead, 437 F.2d 1136 (5th Cir. 1971) dealing with this ques­
tion where plaintiff filed his claim with E.E.O.C. a week 
after the alleged discriminatory event, and within ap­
proximately 20 days after an adverse E.E.O.C. determina­
tion, filed his suit in federal court.

Mrs. Guy was not “penalized” for her seeking “to adjust 
her dispute with her employer through the private 
machinery of the grievance procedure” as described in 
Malone v. N. American Rockwell, 457 F.2d 779 (9th Cir. 
1972). That case did not decide whether there had been a

4 See the findings and conclusions of E.E.O.C. filed as a part of 
the record in this cause.

Opinion of the District Court, June 19, 1974



10a

continuing act of discrimination for failure to promote, 
or whether the settlement of a grievance was in itself a 
discriminatory act with respect to whether claimant had 
delayed too long in filing a claim with E.E.O.C. after inter­
vening investigation by a state employment opportunities 
commission. This Court has granted the motion to dismiss 
upon reconsideration, because plaintiff, a Union steward, 
did not comply with Title VII statutory time requirements 
of filing her E.E.O.C. charge after her termination.

Plaintiff’s claims against the employer, Robbins & Myers, 
must stand dismissed.

Certified  T rue C opy 
J. F r a n k lin  R eid , Clerk

By M. Cleaues 
Deputy Clerk

Opinion of the District Court, June 19, 1974

United States District Court Judge

Date:



11a

Nos. 72-2144 & -2145

UNITED STATES COURT OF APPEALS
F or t h e  S ix t h  C ircu it

A ppea l  F rom U nited  S tates D istrict C ourt 
eor t h e  W estern  D istrict of T en n e sse e .

O p in io n  o f  th e  C o u r t  o f  A p p e a ls ,  O c to b e r  2 4 ,  1 9 7 5

D ortha A l l e n  Guy  

and
I n ternational  U n io n  of E lectrical, R adio and M a ch in e  

W orkers, AFI-CIO L ocal 790,
Plaintiff-Appellants,

v .

R obbins & M yers, I n c .
(H u n ter  F an D iv isio n ),

Defendant-Appellee. 

Decided and Filed October 24, 1975.

B e f o r e  :
W e ic k , E dwards a n d  P e c k ,

Circuit Judge.

W e ic k , Circuit Judge, delivered the opinion of the Court, 
in which P e c k , Circuit Judge, joined, E dwards, Circuit 
Judge, (pp. 8-10) filed a separate dissenting opinion.

W e ic k , Circuit Judge. Appellant G uy has appealed fro m  
an order of the District Court dismissing her complaint for



12a

wrongful discharge brought under Title YII of the Civil 
Rights Act of 1964, as amended, 42 U.S.C. § 2Q00e et seq. 
and 42 U.S.C. § 1981. She claimed that her employer dis­
charged her on account of her race (Negro).

The District Court granted the defendant’s motion to dis­
miss her Title YII claim on the ground that plaintiff had 
not met the jurisdictional prerequisites of §2000e-5(d) of 
the Act which were in force at the time.1 The Act required 
her to file a charge with the Equal Employment Oppor­
tunity Commission (EEOC) within 90 days from the date 
of her discharge. She did not file the charge until after the 
lapse of 108 days.

The District Court dismissed her claim for violation of 
§ 1981 of 42 U.S.C. on the ground that it was barred by the 
one year Tennessee statute of limitations. Tenn. Code 
28-304.

It was Guy’s contention that the 90 day requirement of 
the Act was tolled during the pendency of a grievance 
which she had filed with her employer under the provisions 
of a collective bargaining agreement entered into between 
her employer and the defendant labor Union.

The sole appellate issue is whether the filing of the 
grievance tolled the jurisdictional requirements of the Act.

Guy’s claim under 42 U.S.C. § 1981 was controlled by our 
decision in Johnson v. Railway Express Agency, Inc., 489

1 “ (d) A charge under subsection (a) of this section shall be filed 
within ninety days after the alleged unlawful employment prac­
tices 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) of this section, such charge 
shall be filed by the person aggrieved within two hundred and ten 
days after the alleged unlawful employment practice Or within 
thirty days after receiving notice that the State or local agency has 
terminated the proceedings under the State or local law, whichever 
i's earlier, and a copy of such charge shall be filed by the Commis­
sion with the State or local agency.”

Opinion of the Court of Appeals, October 24, 1975



13a

F.2d 525 (6th Cir. 1973), which was affirmed by the Supreme 
Court on May 19, 1975, 95 S.Ct. 1716 (1975). Guy has not 
appealed from this ruling and it has become final.

The Union originally was a party defendant hut was dis­
missed by agreement with the plaintiff and has been re­
aligned as a party plaintiff.

The facts pertaining to the Title YII issue were not in 
dispute. Guy was discharged on October 25,1971 for failing 
to report for work following an authorized sick leave. A 
co-worker filed a grievance for her with the employer on 
October 27, 1971 which stated: “Protest unfair action of 
company for discharge. Ask that she be reinstated with 
compensation for lost time.” She did not explicitly claim 
racial discrimination. Guy processed her grievance to the 
third step under the collective bargaining agreement. The 
company rejected the grievance on November 18, 1971. 
Guy decided not to proceed further to arbitration. Instead 
she filed a charge with EEOC on February 10, 1972 which 
was 108 days from the date of her discharge.

The EEOC, although finding no evidence of racial dis­
crimination, granted a right to sue letter which resulted in 
the filing of the present suit.

The District Judge was of the opinion that this case was 
controlled by the recent decision of the Supreme Court in 
Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974).

While the specific holding in Gardner-Denver was that 
the adverse decision of an arbitrator did not foreclose 
resort by the grievant to her federal remedy, the reasoning 
of the court, in our judgment, supports the proposition 
that the filing of a grievance under a collective bargaining 
agreement does not toll the limitation period of an appli­
cable federal or state statute.

The court pointed out that “in instituting an action under 
Title YII the employee was not seeking to review an arbi­

Opinion of the Court of Appeals, October 24, 1975



14a

trator’s decision but was asserting a right independent of 
the arbitration process.”

The court referred to the legislative history which indi­
cated Congressional intent that an employee could pursue 
any remedy which he may have under state or federal law. 
Thus, the employee could file proceedings under the 
National Labor Relations Act or with other federal, state 
or local agencies or pursue contractual remedies. In John­
son v. Railway Express Agency, supra, the court held that 
the various remedies are “separate, distinct and indepen­
dent.”

It would be utterly inconsistent with the thesis of Gard­
ner-!) enver and Railway Express Agency to hold that the 
pursuit of any of these remedies operates to toll other 
remedies which the employee has a right to resort to con­
currently. See the statements of Senators Humphrey and 
Dirksen reported in 11 Cong. Rec. 12297 and quoted in 
Banks v. Local Union, 136 Int’l Bhd. Elec. Eng’rs, 296 
F.Supp. 1188 (N.D. Ala. 1968).

In Tennessee, Civil Rights remedies are not provided by 
state or local law.

Subsection 5(d) of the Act contains an exception when 
the grievant has availed himself of remedies provided by 
state or local Civil Rights agencies and in such a case ex­
tends the time for filing a charge with EEOC from 90 days 
to 210 days after the unlawful employment practice or 
within 30 days after receipt of notice of termination of 
state or local proceedings, whichever is earlier.

Guy would have us add another exception to the Act to 
toll the limitations’ period of 90 days when the grievant 
resorts to a contractual remedy under a collective bargain­
ing agreement.

We are not persuaded that we should add additional 
exceptions not authorized by Congress.

Opinion of the Court of Appeals, October 24, 1975



15a

But most important is the language of Mr. Justice 
Powell who wrote the unanimous opinion of the court in 
Gardner-Denver at 47:

. . .  It does, however, vest federal courts with plenary 
powers to enforce the statutory requirements; and it 
specifies with precision the jurisdictional prerequisites 
that an individual must satisfy before he is entitled to 
institute a lawsuit. In the present case, these prerequi­
sites were met when petitioner (1) filed timely a charge 
of employment discrimination with the Commission, 
and (2) received and acted upon the Commission’s 
statutory notice of the right to sue. 42 U.S.C. §§ 2000e-5 
(b), (e), and (f).

This is a clear pronouncement that the 90 day limitation 
period in the Act for filing a charge with EEOC is a juris­
dictional prerequisite “that an individual must satisfy be­
fore he is entitled to institute a lawsuit.” Here Guy ad­
mittedly did not meet the jurisdictional prerequisite.

The limitation in Title VII is more than a mere statute 
of limitations. The Act creates a right and liability which 
did not exist at common law and prescribes the remedy. 
The remedy is an integral part of the right and its require­
ments must be strictly followed. If they are not, the right 
ends.

As early as 1886 the Supreme Court recognized the dis­
tinction between a statute of limitation and a limitation con­
tained in a statute creating liability and imposing a remedy.

In The Harrisburg, 119 U.S. 199, 214, the court stated:
. . . [W]e are entirely satisfied that this suit was 

begun too late. The statutes create a new legal liability, 
with the right to a suit for its enforcement, provided

Opinion of the-Court of Appeals, October 24, 1975



16a

the suit is brought within twelve months, and not 
otherwise. The time within which the suit must be 
brought operates as a limitation of the liability itself 
as created, and not of the remedy alone. It is a condi­
tion attached to the right to sue at all. . . .

In Matheny v. Porter, Price Adm’r, 158 F.2d 478, 479 
(10th Cir. 1946), the court said:

. . . Ordinarily, a statute of limitation does not con­
fer any right of action, but merely restricts the time 
within which the right finding its source elsewhere may 
be asserted. I t is not a matter of substantive right. It 
neither creates the right nor extinguishes it. It affects 
only the remedy for the enforcement of the right. And 
unless it affirmatively appears from the face of the 
complaint that the cause of action is barred by the ap­
plicable statute, limitation must be presented by special 
plea in defense. . . .

But here, section 205(e) creates a new liability, one 
unknown to the common law and not finding its source 
elsewhere. It creates the right of action and fixes the 
time within which a suit for the enforcement of the 
right must be commenced. It is a statute of creation, 
and when the period fixed by its terms has run, the 
substantive right and the corresponding liability end. 
Not only is the remedy no longer available, but the 
right of action itself is extinguished. The commence­
ment of the action within the time is an indispensable 
condition of the liability. Cf. The Harrisburg, 119 U.S. 
199, 7 S.Ct. 140, 30 L.Ed. 358; Midstate Horticultural 
Co., Inc. vs. Pennsylvania E. Co., 320 U.S. 356, 64 S.Ct. 
128, 88 L.Ed. 96.

Opinion of the Court of Appeals, October 24, 1975



17a

In Callahan v. Chesapeake & 0. By. Co., 40 F.Supp. 353, 
354 (E.D. Ky. 1941), District Judge Mac Swinford stated:

The rule is stated in the syllabus from Morrison y. 
Baltimore & Ohio Railroad Company, 40 App. D.C. 391, 
Ann. Cas. 1914C, page 1026, as follows: “Under the 
Federal Employers’ Liability Act of June 11, 1906, 
(Fed. St. Ann. 1909 Snpp. p. 585) the time within which 
the snit must be brought operates as a limitation of the 
liability itself as created, and not of the remedy alone. 
It is a condition attached to the right to sue at all. 
Time has been made of the essence of the right, and 
the right is lost if the time is disregarded. The liability 
and the remedy are created by the same statute, and 
the limitations of the remedy are therefore to be treated 
as limitations of the right.”

Johnson v. Bailway Express Agency, supra, held that the 
timely filing of a charge with EEOC under Title VII of the 
Act did not toll Tennessee’s applicable one year statute of 
limitations. It would therefore appear to us to be utterly 
incongruous for us to hold that a federal statute which con­
tains jurisdictional prerequisites for the exercise of its 
remedies is tolled by the mere filing of a grievance under a 
collective bargaining agreement.

Under Guy’s contention the exercise of rights under Title 
VII could be delayed indefinitely for many years while an 
individual is pursuing other remedies. This contention con­
flicts with Congressional intent made manifest by the short 
periods of time provided in the Act as prerequisites for the 
exercise of the rights.

Guy relies on the following decisions from other Circuits: 
Culpepper v. Beynolds Metals Co., 421 F.2d 888 (5th Cir. 
1970); Hutchings v. U.8. Industries, Inc., 428 F.2d 303 (5th

Opinion of the Court of Appeals, October 24, 1975



18a

Cir. 1970); Malone v. North American Rockivell Corp., 457 
F.2d 779 (9th Cir. 1972); Sanchez v. T.W.A., 499 F.2d 1107 
(10th Cir. 1974).

It is noteworthy that all of these eases, except Sanchez, 
were decided prior to Gardner-Denver and hence are in­
apposite. Sanchez relies on these prior decisions. Sanches 
conflicts with Johnson v. Railway Express Agency, supra.

In the brief of EEOC as amicus curiae a new issue is in­
jected into the case which was not raised by plaintiff in the 
District Court, namely, that under the 1972 amendments to 
Title VII it had authority to assume jurisdiction retroac­
tively to charges pending before the Commission. It relies 
on Love v. Pullman Co., 404 U.S. 522 (1972).

Since this issue was not raised in the District Court by 
any party to the case, we are not required to consider it. 
United States v. Summit Fid. & Sur. Co., 408 F. 2d 46 (6th 
Cir. 1969); Wiper v. Great Lakes Engineering Works, 340 
F. 2d 727 (6th Cir.), cert, denied, 382 U.S. 812 (1965).

We do note, however, that in Love, supra, the charge had 
been timely filed with the Commission so that the jurisdic­
tional prerequisite had been met.

Plaintiff Guy’s claim was barred on January 24, 1972. 
She did not file her charge with EEOC until February 10, 
1972. The amendments to Title VII, increasing the time 
within which to file her charge to 180 days, did not become 
effective until March 24, 1972. 42 U.S.C. § 2000e-5(e). The 
subsequent increase of time to file the charge enacted by 
Congress could not revive plaintiff’s claim which had been 
previously barred and extinguished.

The judgment of the District Court is affirmed.

E dwards, Circuit Judge, dissenting. Appellant Guy was 
discharged for failure to report back to work on her

Opinion of the Court of Appeals, October 24, 1975



19a

production job with appellee Robins and Meyers at the end 
of sick leave which had been granted to her. She claims 
that she notified appellee that she was not able to return 
on the day set, but when she did return four days later, she 
was informed she had been discharged.

Promptly on October 27, 1971, the union filed a grievance 
on her behalf, alleging that the discharge was illegal under 
the union-management contract. This grievance was denied 
at the third step on November 18, 1971. Thereafter plaintiff 
filed a charge, alleging that her discharge was racially 
motivated, before the Equal Employment Opportunity 
Commission. This charge was filed February 10, 1972, 108 
days after her discharge. At the time the EEOC limitation 
provided for a 90-clay period within which to file the 
charge. On March 24, 1972, however, Title VII was 
amended to increase the filing time to 180 days. See 42 
U.S.C. § 2000e-5(d). EEOC, in an amicus brief filed in this 
appeal, asserts that the 1972 amendment should be read 
retrospectively as applicable to appellant’s complaint, since 
it was pending in EEOC’s possession at the time when the 
amendment became effective 151 days after plaintiff’s dis­
charge.

The EEOC position is that the amendment did not create 
a new cause of action. It merely increased the period from 
90 to 180 days before the limitation became effective.

In Davis v. Valley Distributing Co., ------F.2d ------ (9th
Cir. 1975) (No. 73-2725, decided July 30, 1975), the court, 
per Browning, J., held that a similar 180-day extension 
amendment (applicable to filing before the EEOC) should 
be given retroactive effect. The court said:

The 1972 Act became effective March 24, 1972. The 
prior 90-day limitation had run on appellant’s com­
plaint some 54 days earlier. It is the general rule that

Opinion of the Court of Appeals, October 24, 1975



20a

subsequent extensions of a statutory limitation period 
will not revive a claim previously barred. James v. 
Continental Insurance Co., 424 F.2d 1064, 1065-66 (3d 
Cir. 1970). But the question is one of legislative 
intent; and though not free from doubt, we think it the 
more likely conclusion that Congress intended the ex­
tended limitations period to apply to all unlawful 
practices that occurred 180 days before the enactment 
of the 1972 Act, including those otherwise barred by 
the prior 90-day limitations period.

Section 14 of the 1972 Act 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 Com­
mission on the date of enactment of this Act and 
all charges filed thereafter.

Initially, both the House and Senate bills provided 
that the amendments to section 706 would not apply to 
charges filed prior to the effective date of the amend­
ments. H.R. 1746, 92d Cong., 2d Sess. §10 (1972); 
S. 2515, 92d Cong., 2d Sess. § 13 (1972). Section 14 was 
adopted primarily to make the new authority given 
EEOC to bring suit against alleged violators applicable 
to pending claims. EEOC v. Kimberly-Clark Corp., 511 
F.2d 1352,1355 (6th Cir. 1975); Roger v. Ball, 497 F.2d 
702, 708 (4th Cir. 1974). But Congress did not limit 
section 14 of the 1972 Act to the new remedy, although 
it would have been simple to do so. The language 
of section 14 is sweeping. It includes all amendments 
to section 706. Congress was, of course, aware of the 
other amendments to section 706 contained in the same 
bill. The provision extending the limitation periods

Opinion of the Court of Appeals, October 24, 1975



21a

was called to Congress’ attention by committee reports 
and in floor debate. In both tbe House and Senate, 
prior court decisions maximizing coverage within the 
given time limits were noted with approval, and the 
remedial purpose of extending the 90-day period to 180 
days was emphasized.

The words of section 14 affirmatively suggest an in­
tention to encompass discriminatory conduct that 
occurred before the Act was passed. “ [Cjharges pend­
ing with the Commission on the date of enactment of 
this Act” could only involve conduct occurring prior 
to that date. It might be contended that a charge filed 
with EEOC after the pre-amendment 90-day limitation 
had expired, as in this case, was not “pending” on the 
effective date of the Act. It is unnecessary to argue 
the point. Section 14 also makes the amendments ap­
plicable to “all charges filed thereafter.” Since appel­
lant’s claim was not formally “filed” until EEOC 
assumed jurisdiction after the claim was returned by 
the Arizona Commission, it fell within the literal words 
of the statute.

There is no substantial reason for giving less than 
their full meaning to the words of section 14. Even as 
extended, the time limits under the statute are ex­
ceedingly short, particularly since, as Congress noted, 
most complainants are laymen representing them­
selves. The Equal Employment Opportunity Act is a 
remedial statute to be liberally construed in favor of 
victims of discrimination. EEOC v. Wah Chang 
Albany Corp., 499 F.2d 187, 189 (9th Cir. 1974). 
Accordingly, “courts confronted with procedural 
ambiguities in the statutory framework have, with 
virtual unanimity, resolved them in favor of the com­

Opinion of the Court of Appeals, October 24, 1975



22a

plaining party.” Sanches v. Standard Brands, Inc., 
431 F.2d 455, 461 (5th Cir. 1970).
Davis v. Valley Distributing Co., supra, at —. (Foot­
notes omitted.)

This issue, as outlined above, was not presented to the 
District Court in our instant case, and in fairness to the 
District Judge, it should be.

I would remand this case for consideration of the effect 
of the 1972 EEOC amendments.

Opinion of the Court of Appeals, October 24, 1975



23a

Order

Nos. 74-2144 & -2145

UNITED STATES COURT OP APPEALS 
F oe t h e  S ix t h  C ircu it

D ortha A l len  Gu y , 
and

I nternational U n io n  of E lecteical, R adio and M a c h in e  
W orkers, AFL-CIO Local 790,

Plaintiff s-Appellants, 
vs.

R obbins & M yers, I n c . (H u n ter  F an D iv isio n ),

Defendant-Appellee.

Before
W e ic k , E dwards a n d  P e c k ,

Circuit Judges.

This cause came on to be heard upon the petition for 
rehearing with the suggestion that it he reheard en banc. 
No active Judge having requested that the petition be re­
heard en banc, the petition for rehearing was considered 
by the panel and was found to be not well taken.

It is therefore Ordered that the petition for rehearing 
be and it is hereby denied. Judge Edwards dissents.

E ntered B y Order of t h e  C ourt

/ s /  J o h n  P . H eh m a n  
Clerk



MEILEN PRESS INC. — N. Y. C. 219