41 Fair Empl.prac.cas. 1875,26 Empl. Prac. Dec. P 31,902edward Jefferson et al., Plaintiffs-appellants, v. H. K. Porter Company, Etc., et al., Defendants-appellees, 648 F.2d 337 (5th Cir. 1976)

Some 71 of the Muldrow class members were dissatisfied with the back pay award and decided to litigate further for the sole purpose of receiving more compensation. The district court ruled that the 71 objectors could not remain covered by the consent decree and only litigate the back pay issue, that is "partially opt-out"; but the court indicated that the 71 objectors were free to pursue separate actions. The objectors appealed this decision but withdrew their appeal on December 11, 1975. Approximately 36 of the 71 objectors withdrew their objections and participated in the consent decree. The remaining objectors, appellants, filed the instant action under Title VII and 42 U.S.C.A. § 1981 against Porter Co. and the Steelworkers on September 9, 1976.¹  On February 6, 1980, the district court, 485 F. Supp. 356 (Guin, J.) rejected appellants' argument that the statute of limitations had been tolled during the pendency of the Muldrow litigation and granted summary judgment for appellees Porter Co. and the Steelworkers because the complaint was time barred. This appeal followed.

It is undisputed that appellants were parties in the original Muldrow litigation. Accordingly, appellants argue that their complaint was timely filed since it was filed within Alabama's one year statute of limitations for Section 1981 actions following the conclusion of the Muldrow litigation. They argue further that equitable tolling is proper here since they were prejudiced by the district court's denial of their partial opt-out argument which was later approved by this Court in Pettway v. American Cast Iron Pipe Co., 576 F.2d 1157, 1182 (5th Cir.), cert. denied, 439 U.S. 1115, 99 S. Ct. 1020, 59 L. Ed. 2d 74 (1978) (Pettway IV). Finally, appellants argue that the district court erred by basing its rejection of their equitable tolling argument on its holding that Muldrow was a Title VII action only as reflected by the amended complaint.

Appellants' arguments are without merit for several reasons. First of all, the district court's order in Muldrow which rejected the objectors' partial opt-out argument is not a part of this appeal: the appeal of that order was withdrawn on December 11, 1975, and thus is not reviewable here. Nilsen v. City of Moss Point, 621 F.2d 117, 120 (5th Cir. 1980). Even if Muldrow did apply to this appeal, we agree with the district court below that, subsequent to the July 1966 amended complaint in Muldrow that deleted all references to Section 1981, Muldrow was based solely on Title VII. We cannot accept appellants' argument that the Section 1981 claim was inadvertently deleted from the amended Muldrow complaint since several paragraphs were completely redrafted to delete the Section 1981 references. In other words, the changes made by the amendment involved more than a simple addition of the Steelworkers to the original complaint. Moreover, appellants' counsel conceded at oral argument that the Title VII aspects of the complaint under review are time barred.² 

Furthermore, appellants have failed to allege any circumstances other than the pendency of the Muldrow litigation to justify equitable tolling of the one year statute of limitations period. For example, appellants have not alleged any misconduct on Porter Co.'s part such as concealment of a cause of action or on the EEOC's part such as misleading actions. See Nilsen v. City of Moss Point, supra, 621 F.2d at 121. The appellees would clearly be prejudiced if we allowed equitable tolling given the amount of time that has elapsed since the July 1966 amended complaint in Muldrow was filed.³  Appellants cannot rely on their allegation of prejudice resulting from the district court's ruling on the partial opt-out theory because, as herein noted, Muldrow is not before us.

Finally, even if equitable tolling were applicable, it would apply only to appellants' Title VII claims since Muldrow was a Title VII suit. It is clear that the timely filing of an employment discrimination charge with the EEOC under Title VII does not toll the statute of limitations during the pendency of the EEOC charge for an action brought under Section 1981. See Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 466, 95 S. Ct. 1716, 1723, 44 L. Ed. 2d 295 (1974); Jones v. City of San Antonio, 568 F.2d 1224, 1226 (5th Cir. 1978). Since appellants' Title VII claims were concededly time barred, the district court properly granted appellees' summary judgment motion. Because we are unaware of any justification for an exercise of our equitable jurisdiction to toll the one year statute of limitations period applicable to this Section 1981 action, we AFFIRM.