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BARRETT v. UNITED STATES CIV. SERV. COMMN.

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA


October 14, 1977

SYLVESTER BARRETT and GLORIA A. WILLIAMS, Plaintiffs,
v.
UNITED STATES CIVIL SERVICE COMMISSION, et al., Defendants

The opinion of the court was delivered by: RICHEY

MEMORANDUM OPINION OF UNITED STATES DISTRICT JUDGE CHARLES R. RICHEY

 This case involves the issue of whether the statute of limitations for filing a discrimination complaint under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., as amended by the Equal Employment Opportunity Act of 1972, is tolled by the filing of a complaint by one member of the class, in favor of members excluded from the class upon decertification.

 The facts are as follows: On February 25, 1974, Gloria Williams, a black female employee at the Johnson Space Center, filed an administrative complaint alleging both racial and sexual discrimination. On November 20, 1974, she and Sylvester Barrett, a black male employee at the Center, filed a complaint in this Court alleging discrimination in their employment on the basis of race and sex. This Court conditionally certified the action on December 10, 1975, as a class action on behalf "of all blacks and females presently employed at the Johnson Space Center." However, upon plaintiffs, discovery that a conflict may exist in the certified class, this Court modified the class to include only "all incumbent black employees." Thus, notice must be given to all present female employees who allege claims of sex-based discrimination that their claims are no longer being advanced in this litigation.

 The issue before this Court is the effect of the decertification of the class on the running of the statute of limitations. According to 5 C.F.R. § 713.214(a)(i), an employee must file an administrative complaint within 30 days of the alleged unlawful act. Plaintiffs argue that the filing of the administrative class complaint tolls the running of the statute of limitations for all purported members of the class. Defendants contend that the class was only certified "conditionally" and, therefore, that the administrative complaint did not toll the statute for employees who are not now members of the class -- even if the class was initially certified to include them. The Court cannot agree with the defendants.

 This Court finds the Supreme Court's discussion in American Pipe & Construction Co. v. Utah, 414 U.S. 538, 38 L. Ed. 2d 713, 94 S. Ct. 756 (1974) rather persuasive. There, former members of a class that was decertified attempted to intervene as plaintiffs in the antitrust suit that had since become an individual action. If the time of their motion to intervene was the determinative date, the statute of limitations would have barred their action. The Court, however, held that the "commencement of the original class action tolls the statute for all purported members of the class." Id. at 553 (emphasis added). To hold that the statute was not tolled as to persons excluded from the class, the Court continued, would frustrate the principal function of a class suit because then each member would begin an individual action -- precisely the multiplicity of activity which Fed.R.Civ.P. 23 was designed to avoid. Id. at 551. In fact, the Court did not even require reliance upon the filing of the complaint for the tolling rule to apply:

 

[No] different a standard should apply to those members of the class who did not rely upon the commencement of the class action (or who were even unaware that such a suit existed) and thus cannot claim that they refrained from bringing timely motions for individual intervention or joinder because of a belief that their interests would be represented in the class suit.

 Id. Although American Pipe dealt with a judicial complaint as tolling the statute, the policy behind Rule 23 and the need to protect all "purported" class members even if they do not rely upon the class complaint are equally applicable to a Title VII case at the administrative level. See United Airlines v. McDonald, 432 U.S. 385, 97 S. Ct. 2464, 2468 n.11, 53 L. Ed. 2d 423 (1977) (by implication); United States v. Georgia Power Company, 474 F.2d 906, 925 (5th Cir. 1973); Roberts v. Western Airlines, 425 F. Supp. 416, 425 (N.D. Cal. 1976).

 Accordingly, it has been held that, in Title VII cases, the filing of an administrative class complaint with the Equal Employment Opportunity Commission by a private sector employee tolls the running of the statute of limitations. In Equal Employment Opportunity Commission v. Detroit Edison Co., 515 F.2d 301, 315-16 (6th Cir. 1975), the Court held that the filing of an administrative complaint "tolled the statute of limitations of all members of the class he represented." The Supreme Court's recent insistence in Chandler v. Roudebush, 425 U.S. 840, 48 L. Ed. 2d 416, 96 S. Ct. 1949 (1976), that federal employees be afforded the same rights under Title VII as are provided private sector employees requires this Court to apply the tolling rule of Detroit Edison to the present federal employment discrimination case.

 The core of the defendants' contention in this case is that even if the statute is tolled as to the members of the class, the decertification indicates that the female employees were not "proper" members of the class and, therefore, the statute should not be tolled as to them. Courts have recognized that the tolling rule protects all persons who were asserted to be members of the class, even if they later were removed. See, e.g., Haas v. Pittsburgh National Bank, 526 F.2d 1083, 1098 (3d Cir. 1975). This seems reasonable because, otherwise, a purported member of a class would, in all cases, be compelled to protect his interests by filing an administrative complaint, since there is always the chance that at some later time he may be removed from the class. As a practical matter, this would result in forcing all unnamed class members to exhaust their administrative remedies, and to, perhaps, file suit in federal court to protect their rights. The Supreme Court has explicitly sought to avoid this result in Title VII class actions. Albemarle Paper Company v. Moody, 422 U.S. 405, 414 n.8, 45 L. Ed. 2d 280, 95 S. Ct. 2362 (1975). Therefore, this Court finds that the filing of the administrative complaint by Ms. Williams on February 25, 1974, tolled the limitations period for all purported members of the class.

 Having decided the issue in this way, the Court must next determine how long after receipt of the notice of decertification the employees have in which to file new administrative complaints. Justice Powell, relying upon American Pipe, supra, answered this question in his dissent in United Airlines, supra :

 

If class status is denied in whole or in part, the statute of limitations begins to run again as to class members excluded from the class. In order to protect their rights, such individuals must seek to intervene in the individual action (or possibly file an action of their own) before the time remaining in the limitations period expires.

 97 S. Ct. at 2474 (emphasis added). See Monarch Asphalt Sales Co., Inc. v. Wilshire Oil Co., 511 F.2d 1073 (10th Cir. 1975). Thus, the former class members will be permitted to file their administrative complaints within the following time periods after receipt of the decertification notice: (1) those members seeking relief for discriminatory acts that occurred prior to February 25, 1974, must file their complaint with the agency within the time remaining in the original 30-day limitations period (i.e. they must file within 30 days minus the number of days before February 25, 1974, that the discriminatory act occurred); (2) those members seeking relief for discriminatory acts that occurred between February 25, 1974, and the date of receipt of this notice must file their complaint with the agency within 30 days of the receipt of this notice.*

 An Order in accordance with the foregoing will be issued of even date herewith.

 DATE:

 Charles R. Richey United States District Judge

 [EDITOR'S NOTE: The following court-provided text does not appear at this cite in 439 F. Supp.]

 ORDER

 In accordance with the Memorandum Opinion issued of even date herewith, it is, by this Court, this 13th day of October, 1977,

 ORDERED, that the attached Notice of Decertification of Class be sent to all incumbent female employees at the National Aeronautics and Space Administration's Johnson Space Center at Houston, Texas.

 Charles R. Richey United States District Judge

 NOTICE OF DECERTIFICATION OF CLASS

 TO: All Incumbent Female Employees at The National Aeronautics and Space Administration's Johnson Space Center at Houston, Texas.

 On February 25, 1974, Gloria A. Williams, a black female employee at the Johnson Space Center filed an administrative complaint pursuant to Civil Service Commission regulations alleging that she had been discriminated against in her employment at the Center on the basis of her sex and race. In addition, she alleged that "females, as a class... have been discriminated against because of the Center's personnel policies and practices as they pertain to recruitment, hiring, initial assignments, job classifications, merit promotions, training opportunities, retention, and the terms, conditions and privileges of employment."

 On November 20, 1974, after waiting the requisite 180 days, Ms. Williams (together with Sylvester Barrett, a black male employed at the Center) filed a complaint in the United States District Court for the District of Columbia pursuant to Title VII of the Civil Rights Act of 1964, as amended in 1972. The principal defendants to the suit were the United States Civil Service Commission, James C. Fletcher, Administrator, National Aeronautics and Space Administration, and Christopher C. Kraft, Director, Johnson Space Center. Ms. Williams alleged that the defendants were responsible for job-related discrimination against her on the basis of race and sex. The complaint further alleged that defendants had engaged and were engaging in employment discrimination against black and female employees as a class as set forth in the administrative complaint. The named plaintiffs sought, among other things, a permanent injunction prohibiting the alleged discrimination and an upgrade and back pay for each deserving incumbent black and female employee.

 On December 10, 1975, this Court certified the action as a class action in behalf "of all blacks and females presently employed at the Johnson Space Center," thereby allowing the suit to proceed with all black and female employees before the Court. The Court further ordered, however, "that this certification is condition is conditional and subject to further developments in this case...."

 On June 22, 1977, on application from plaintiffs, the Court decertified the class of all incumbent female employees, thereby removing them from this suit. The approved class was redefined to consist only of "all incumbent black employees of the Johnson Space Center." Therefore, incumbent female employees with claims of unlawful discrimination based on sex are no longer parties to this suit and cannot advance their claims in the context of this suit.

 Accordingly, you are hereby notified that despite the decertification of the class of female employees, if you believe that the Johnson Space Center, or NASA, has discriminated against you on the basis of sex, between January 26, 1974, and the date of receipt of this notice, you may still seek relief under Title VII of the Civil Rights Act of 1964, as amended in 1972, by filing an administrative complaint with the Johnson Space Center in accordance with Civil Service Commission Regulations. This complaint must be filed within a limited time period after receipt of this notice: (1) If you are seeking relief for discriminatory acts that occurred prior to February 25, 1974, you must file your complaint within the time remaining in the original 30-day limitations period (i.e., within 30 days minus the number of days before February 25, 1974, that the discriminatory act occurred); (2) If you are seeking relief for discriminatory acts that occurred between February 25, 1974 and the date of receipt of this notice, you must file your complaint within 30 days of the receipt of this notice. Of course, any unlawful discrimination based on sex which is presently occurring or which may occur in the future must be brought to the attention of the Johnson Space Center, in accordance with the Civil Service Commission regulations, within 30 days of the unlawful act.

 If you have any questions concerning this notice and your rights under Title VII of the Civil Rights Act of 1964, as amended in 1972, and the Civil Service Commission regulations, please call either of plaintiffs' attorneys immediately. They are:

 Melvyn R. Leventhal, Esquire, NAACP Legal Defense and Educational Fund, 10 Columbus Circle, New York, New York 10019

 Gabrielle Kirk McDonald, Esquire, 1834 Southmore Boulevard, Suite 203, Houston, Texas 77004

 Charles R. Richey United States District Judge

19771014

© 1992-2004 VersusLaw Inc.



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