34 Fair Empl.prac.cas. 1640,34 Empl. Prac. Dec. P 34,330heather Smith, Plaintiff-appellant, v. Oral Roberts Evangelistic Association, Inc., an Oklahomacorporation; David Moore, and Matt Connolly,defendants-appellees, 731 F.2d 684 (10th Cir. 1984)

Randolph P. Stainer, Tulsa, Okl., for plaintiff-appellant.

Maryann C. Hayes, Chicago, Ill. (Robert K. Skolrood of Tulsa, Okl., with her on the brief), for defendants-appellees.

Before McWILLIAMS and LOGAN, Circuit Judges, and CAMPOS, District Judge^* .

CAMPOS, District Judge:

This appeal requires us to determine whether the Equal Employment Opportunity Act (42 U.S.C. § 2000e-2000e-17) requires a plaintiff to file a charge of discrimination with a state agency within state imposed time limitations as a jurisdictional prerequisite to the extended federal filing period for deferral states. Appellant appeals from an order of the district court which dismissed her case. The district court held that because appellant had not filed with the Equal Employment Opportunity Commission (hereinafter "EEOC") within the 180-day state time period for filing with the Oklahoma Human Rights Commission, her complaint was not timely filed. Appellant contends that Mohasco Corporation v. Silver, 447 U.S. 807, 100 S. Ct. 2486, 65 L. Ed. 2d 532 (1980) and Oscar Mayer & Company v. Evans, 441 U.S. 750, 99 S. Ct. 2066, 60 L. Ed. 2d 609 (1979) compel reversal of the district court decision and that the Tenth Circuit precedent relied on by that court has been implicitly overruled. For the reasons stated below, we agree with Appellant, reverse the decision of the district court, and conclude that Dubois v. Packard Bell, 470 F.2d 973 (10th Cir. 1972) has been overruled.

Appellant brought this action pursuant to the Equal Employment Opportunity Act, 42 U.S.C. § 2000e-2000e-17. She alleged that she was employed by Oral Roberts Evangelistic Association (hereinafter "OREA"); that Appellees Connolly and Moore were OREA employees and her direct supervisors; that they committed offensive acts toward her; and that she was terminated without cause other than the friction caused by the sexually-oriented treatment of Appellant and other women.

Appellant originally filed her charge with the EEOC 237 days after her termination. She filed this charge against "Oral Roberts University," not OREA or the individual defendants she later sued. OREA is a production organization associated with the University; Oral Roberts is the president and director of both.

The EEOC automatically deferred the charge to the Oklahoma Human Rights Commission (hereinafter "OHRC"). Pursuant to a work sharing agreement with the EEOC, the OHRC waived jurisdiction to EEOC. Unable to investigate within the statutory time period, EEOC issued a "right to sue" letter to Appellant and Appellant filed suit.

Appellees subsequently moved to dismiss Appellant's suit because, they say, (1) Appellant had filed her charge with the EEOC 237 days after the alleged discriminatory act, beyond the 180-day time limit Okla.Stat. tit. 25 Sec. 2 sets for filing with the OHRC and, therefore, Appellant had not filed a timely action; and (2) Appellant had named Oral Roberts University, not OREA or the individual OREA employees, in the charge she filed with the EEOC and, therefore, Appellant could not bring this civil action against the Appellees.

The district court granted Appellee's Motion to Dismiss. It did not address the second issue in its order. It held that despite the fact that Appellant's complaint was timely under "a literal interpretation" of Mohasco v. Silver, 447 U.S. 807, 100 S. Ct. 2486, 65 L. Ed. 2d 532 (1980), the charge was not timely filed in Oklahoma, where the state deferral agency has a limitation period of 180 days. The Court (1) refused to interpret Mohasco to give Appellant a 240-day time period to file with the EEOC; (2) was not persuaded by Supreme Court case law which construed the Age Discrimination in Employment Act (hereinafter "ADEA"), 29 U.S.C. §§ 621-634, which, if applicable, supported Appellant's position; (3) rejected another Oklahoma district court case which addressed this question and chose the 240-day time limit; and (4) held that Dubois v. Packard Bell, 470 F.2d 973 (10th Cir. 1972) was still good law. Observing that the Supreme Court had not yet spoken as clearly on Title VII time limitations as it had on ADEA cases, the district court refused to construe Mohasco as applicable since to do so would bring on "complete subversion of state employment discrimination laws." Heather Smith v. Oral Roberts Evangelistic Association, No. 82-C-658-E, slip op. at 5 (N.D.Okl. April 28, 1983).

II. THE RELEVANT STATUTES AND SUPREME COURT DECISIONS

Timely filing with the EEOC is a prerequisite to civil suit under Title VII.¹ 

42 U.S.C. § 2000e-5(c) specifies that in states with state or local authority which enforces state or local employment discrimination law, no federal charge may be filed until 60 days after commencement of state or local proceedings, "unless such proceedings have been earlier terminated."

In a "non-deferral state," a state with no state or local agency authorized "to grant or seek relief from such practice or to institute criminal proceedings with respect thereto," a charge must be filed with the EEOC within 180 days of the act complained of. 42 U.S.C. § 2000e-5(e). In a "deferral state," in a case where the complainant has "initially instituted proceedings" with the appropriate state or local agency, the charge must be filed with the EEOC within an extended 300-day time period. Id.

(1) Automatic Deferral.

In Love v. Pullman, 404 U.S. 522, 92 S. Ct. 616, 30 L. Ed. 2d 679 (1972), the Supreme Court approved of the EEOC's practice of automatic deferral of charges filed with the EEOC when the aggrieved party had not exhausted state or local administrative remedies. In such cases, exhaustion of state or local administrative remedies is accomplished automatically by the EEOC. It refers the charge to the appropriate state or local agency and then, after the expiration of the 60-day deferral period, reactivates the charge within its own proceedings. See 29 C.F.R. Sec. 1601.13 (1982).

(2) The "240-day maybe" rule.

In Mohasco Corporation v. Silver, 447 U.S. 807, 100 S. Ct. 2486, 65 L. Ed. 2d 532 (1980), the Supreme Court rejected the cases which construed 42 U.S.C. § 2000e-5(c) and (e) to require filing with the EEOC (or the state or local agency) within 180 days in deferral states.²  Mohasco held that a complainant "need only file his charge within 240 days of the alleged discriminatory employment practice to insure that his federal rights will be preserved." Mohasco, 447 U.S. at 814, n. 16, 100 S. Ct. at 2491, n. 16. Even if a charge is initially filed with the EEOC more than 240 days after the alleged discrimination, the charge may still be effectively filed within 300 days of the alleged illegal acts if state or local proceedings terminate in less than 60 days, thereby ending the deferral period,³  and automatically reactivating the charge with the EEOC.⁴ 

Despite this language, Mohasco is not precisely on point: in Mohasco, the complainant had filed with the EEOC within New York's 365-day limitation for its state proceedings. Timely federal filing within state time requirements for state administrative proceedings was not directly addressed.

In Dubois v. Packard Bell, 470 F.2d 973 (10th Cir. 1972), this Court affirmed the district court's summary judgment for defendants because plaintiff had filed with the EEOC after the expiration of New Mexico Human Rights Commission filing time period. Dubois is directly on point, but was decided ten years before the Supreme Court decision in Mohasco, and also before the Supreme Court had spoken on this issue in the Age Discrimination in Employment context.

Nothing in Title VII requires filing with the state or local agency (or the EEOC) within the time periods commanded by state law. Our understanding of employment discrimination law has been enhanced by Supreme Court decisions since Dubois; consequently, we cannot construe 42 U.S.C. § 2000e-5(c) or (e) to require filing within state specified time limits. This construction is fully consistent with Title VII's remedial purposes and is especially appropriate "in a statutory scheme in which laymen, unassisted by trained lawyers, initiate the process." Love v. Pullman, 404 U.S. 522, 527, 92 S. Ct. 616, 619, 30 L. Ed. 2d 679 (1972).

Title VII requires the EEOC to defer for 60 days "after proceedings have been commenced under state or local law...." 42 U.S.C. § 2000e-5(c) (emphasis added). It establishes a 300-day extended filing period for "a case of an unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings with a state or local agency...." 42 U.S.C. § 2000e-5(e) (emphasis added). By its terms, then, Title VII requires only that state proceedings be commenced (or initially instituted) before federal consideration takes place. Specifically, there is no requirement that in order to "commence" state proceedings and thus preserve federal rights, the complainant must comply with state dictated time periods. In fact, the "commenced" and "initially instituted" language suggests that time periods set by state law "are irrelevant--since by way of analogy, under the Federal Rules of Civil Procedure even a time-barred action may be 'commenced' by the filing of a complaint." Oscar Mayer & Co. v. Evans, 441 U.S. 750, 759, 99 S. Ct. 2066, 2073, 60 L. Ed. 2d 609 (1979), citing Fed. R. Civ. P. 3 and Magalotti v. Ford Motor Co., 418 F. Supp. 430, 434 (E.D. Mich. 1976).

In fact, the previous analysis of the Title VII language is identical to Justice Brennan's statutory construction of 29 U.S.C. § 633(b), the Age Discrimination in Employment Act statute which is analogous to Sec. 2000e-5(c) and (e), in Oscar Mayer v. Evans, 441 U.S. 750, 99 S. Ct. 2066, 60 L. Ed. 2d 609 (1979). In Oscar Mayer, the Court held that the ADEA statute similarly worded to Sec. 2000e-5 did not require commencement of state proceedings within time limits specified by state law. The opinion notes that "the ADEA and Title VII share a common purpose, the elimination of discrimination in the workplace," that Sec. 633(b)'s language is "almost in haec verba" with Sec. 2000e-5, and that the legislative history of the ADEA section "indicates that its source" was the Title VII statute. Oscar Mayer, 441 U.S. at 756, 99 S. Ct. at 2071. These observations influenced our decision in this case. Further reinforcement comes from this passage:

[The ADEA section analogous to Sec. 2000e-5] does not stipulate an exhaustion requirement. The section is intended only to give state agencies a limited opportunity to settle the grievances of ADEA claimants in a voluntary and localized manner so that the grievants thereafter have no need or desire for independent federal relief. Individuals should not be penalized if States decline, for whatever reason, to take advantage of these opportunities... Congress did not intend to foreclose federal relief simply because state relief was also foreclosed.

Oscar Mayer v. Evans, 441 U.S. at 761, 99 S. Ct. at 2074 (citations omitted).

Appellee and the court below do not interpret the Supreme Court's ADEA decision in Oscar Mayer to suggest that a consistent judgment should be reached in the Title VII context. We cannot agree. The description, in Oscar Mayer⁵ , of both the identity of purpose of the ADEA and Title VII and the similarity of language in the two Acts' filing period sections suggest that a distinction between the ADEA and Title VII in this case is unwarranted. We also note that the Supreme Court frequently has cited ADEA cases in its Title VII opinions and Title VII cases in its ADEA decisions. See e.g. Mohasco v. Silver, 447 U.S. at 814, n. 16, 100 S. Ct. at 2491, n. 16. See also the use of Title VII's legislative history to construe the ADEA in Oscar Mayer, 441 U.S. at 755-756, 99 S. Ct. at 2071-2072. Moreover, in Ciccone v. Textron, Inc., 616 F.2d 1216 (1st Cir. 1980), an ADEA case in which the Court of Appeals affirmed the district court's summary judgment against plaintiff who failed to file with the state agency either within state time limit of 120 days or within 180 days, but did file within 300 days, the Supreme Court granted certiorari, vacated the judgment, and remanded for consideration in the light of the Title VII decision in Mohasco. Ciccone v. Textron, Inc., 449 U.S. 914, 101 S. Ct. 311, 66 L. Ed. 2d 143 (1980). On remand, the First Circuit Court of Appeals found that " [t]he rationale in Mohasco strongly suggests, if it does not compel, the conclusion that it is to control in situations such as the present." Ciccone v. Textron, Inc., 651 F.2d 1 (1st Cir. 1981) (per curiam) .

Although Mohasco Corporation v. Silver, 447 U.S. 807, 100 S. Ct. 2486, 65 L. Ed. 2d 532 (1980) is not precisely on point, it contains persuasive language which supports Appellant's position. Before the Mohasco decision, there was a split in the circuits over when an aggrieved person had to file in a deferral state to benefit from the extended federal filing period in 42 U.S.C. § 2000e-5(e). Compare Dubois v. Packard Bell, 470 F.2d 973 (10th Cir. 1973), and Olson v. Rembrandt Printing Co., 511 F.2d 1228 (8th Cir. 1975) (citing Dubois with approval and holding that state charge must be filed within 180 days to qualify for 300-day extended federal period regardless of state limitation) with Moore v. Sunbeam Corporation, 459 F.2d 811 (7th Cir. 1972) (when employee submitted charge to EEOC before state filing, charge was deemed filed upon termination of state proceeding or 60 days after initial EEOC filing; charge was timely filed if initial filing occurred in extended federal period minus 60 days). See also other cases holding contrary to Olson and Dubois: Anderson v. Methodist Evangelical Hospital, Inc., 464 F.2d 723 (6th Cir. 1972) (interpreting earlier version of Sec. 2000e-5 to allow the extended federal period to be tolled by submission of original charge with EEOC, which automatically deferred to state agency) and Doski v. M. Goldseker Company, 539 F.2d 1326 (4th Cir. 1976) (holding charge was timely when employee filed with state agency which terminated and transferred charge to EEOC within 300 days).

The Supreme Court rejected the "Olson approach" in Mohasco as "not compelled by the statute." It reasoned:

Although that construction is consistent with the general rule announced at the beginning of Section 706(e) [42 U.S.C. § 2000e-5], and is supported by one Congressman's understanding of the procedures at the time of the 1972 amendment to that section, see 1972 Leg.Hist. 1863 (remarks of Rep. Dent), Congress included no express requirement that state proceedings be initiated by any specific date in the portion of the subsection that relates to time limitations in deferral states. Further, there are contemporaneous indications in the legislative history, which, while not authoritative, contradict Representative Dent's views....

In any event, we do not believe that a court should read in a time limitation provision that Congress has not seen fit to include....

Mohasco v. Silver, 447 U.S. at 816, n. 19, 100 S. Ct. at 2492, n. 19 (citations omitted).

We infer from the above language that the "restrictive approach" of Dubois must also be rejected. Accordingly, we decide that the criteria for procedurally correct filing in Appellant's case is what Mohasco outlined:

[A] complainant in a deferral state having a fair employment practice agency over one year old need only file his charge within 240 days of the alleged discriminatory employment practice in order to insure that his federal rights will be preserved. If a complainant files later than that (but not more than 300 days after the practice complained of), his right to seek relief under Title VII will nonetheless be preserved if the State happens to complete its consideration of the charge prior to the end of the 300 day period.

Id. at 814, n. 16, 100 S. Ct. at 2491, n. 16.

We note that the Sixth Circuit Court of Appeals has likewise concluded that Sec. 2000e-5 permits an automatic "240-day maybe" period, regardless of state limitations. Jones v. Airco Carbide Chemical Company, 691 F.2d 1200 (6th Cir. 1982). District courts in other circuits have reached this same conclusion. Platts v. Cordis Dow Corp., 558 F. Supp. 114 (S.D. Fla. 1983); Jackson v. Ohio Bell Tel. Co., 555 F. Supp. 80 (S.D. Ohio 1982); Russell v. Belmont College, 554 F. Supp. 667 (M.D. Tenn. 1982). District court decisions in this circuit have questioned the vitality of Dubois v. Packard Bell, 470 F.2d 973 (10th Cir. 1972). Cruz v. Board of Education for City of Trinidad School District No. 1, 537 F. Supp. 292 (D. Colo. 1982); Rumie McBride v. New Mexico Department of Health and Social Services, No. 81-164 (D.N.M. Jan. 25, 1982) (order granting partial summary judgment); Morrison v. United Parcel Service, 515 F. Supp. 1317 (W.D.Okl.1981). But see Dickerson v. City Bank and Trust Co., 575 F. Supp. 872 (D. Kan. 1983), in which the Kansas district court followed Dubois but acknowledged the "troubling conflict" between the rule it applied to the proposed Title VII claim before it and the rule applied to age discrimination claims.⁶ 

Our study leads us to the conclusion "that state procedural defaults cannot foreclose federal relief and that state limitations periods cannot govern the efficacy of the federal remedy." Oscar Mayer v. Evans, 441 U.S. 750, 762, 99 S. Ct. 2066, 2074, 60 L. Ed. 2d 609 (1979). It is our opinion that Dubois v. Packard Bell, 470 F.2d 973 (10th Cir. 1972) has been implicitly overruled by the Supreme Court and, therefore, the decision of the district court in this case should be reversed.

Since the district court did not pass on Appellant's failure to name Appellees in the initial EEOC charge, we will not address this question. On remand, the district court should consider this issue in light of the criteria set forth in Romero v. Union Pacific Railroad, 615 F.2d 1303 (10th Cir. 1980).

REVERSED AND REMANDED for action by the District Court in conformity with the views expressed in this opinion.