J. SKELLY WRIGHT, Circuit Judge:
This class action involves allegations of racial discrimination against one of the nation's largest trucking firms, Spector Freight Systems, Inc., against one of the nation's most powerful unions, the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, and against Teamsters Local 639 which represents drivers in the District of Columbia, Maryland and Northern Virginia. Appellant Macklin was a member of the local during the period when the discriminatory practices were alleged to have occurred. He still is. The International and the local are charged with participation in a continuing conspiracy with Spector to deny blacks access to the remunerative over-the-road driver jobs. More specifically, Spector is said to maintain a practice of refusing to hire blacks, including Macklin, for these jobs on unjustifiable racial grounds. The International and the local are alleged to cooperate with Spector in this unlawful practice with respect to their own members. An Equal Employment Opportunity Commission investigation of the events that gave rise to this suit indicated that of Spector Systems' approximately 2,700 drivers only 109, or approximately four per cent, were blacks. More significant, the EEOC report found that there was no evidence that Spector employed any blacks as over-the-road drivers as of early 1967 when the events culminating in this suit occurred.
In January 1967 Spector assumed control of operating rights between New York and Washington which the Interstate Commerce Commission had granted to Macklin's employer, Jacobs Eastern Transport, Inc. Jacobs had sold the rights to Spector a few months earlier, subject to ICC approval which was soon given. Within a few days of assuming control, Spector informed Macklin and Jacobs' other over-the-road drivers, all of whom apparently were black, that they were laid off until Spector established an over-the-road trucking terminal in Washington. No such terminal has been established. This fact becomes important for the following reasons.
The contract of sale between Jacobs and Spector indicates that Spector bought not merely Jacobs' operating rights, but also Jacobs' business. Under the terms of the then applicable National Master Freight Agreement, which both Spector and Jacobs had signed and which governed the firms' relations with their Teamsters-represented drivers, it appears that, since the Jacobs-Spector transaction covered both business and operating rights, Spector was obliged to either dovetail the seniority list of its own employees with that of Jacobs
Convinced that Spector owed him an over-the-road job somewhere in its system under the terms of the Master Freight Agreement, Macklin asked Local 639 to institute grievance proceedings for him. In the proceedings that followed the local accepted the applicability of the provision that Spector relied on, but took the position that under the agreement Jacobs' over-the-road drivers should be given the right to transfer at the bottom of the seniority list to a Spector terminal in New Jersey from which shipments would be made on the route rights purchased from Jacobs. Following the terms of the Maryland-District of Columbia Freight Council Supplemental Agreement,
On October 15, 1968 Macklin filed a complaint with EEOC against Spector and the local, charging conspiracy to discriminate against him. On January 24, 1969, after the 60-day period specified by Title VII of the 1964 Civil Rights Act, Section 706(b), 42 U.S.C. § 2000e-5(b) (1970), for referral to the state agency had expired, EEOC formally assumed jurisdiction of his complaint.
With all respect, we find ourselves unable to sustain any of the District Court's holdings. Thus we must reverse the judgments of dismissal and remand these cases for further proceedings consistent with this opinion.
Under the terms of Title VII of the 1964 Civil Rights Act, 42 U.S.C. §§ 2000e-1-2000e-15 (1970), a plaintiff may not bring suit in District Court until he has first filed a complaint with the Equal Employment Opportunity Commission.
In addition to requiring EEOC clearance before suit may be filed in court, Title VII also imposes a timely filing requirement for filing a complaint with the agency in the first place. Section 706(d), 42 U.S.C. § 2000e-5(d), provides that where, as here, a charging party's complaint was referred initially to an available state agency with jurisdiction over discriminatory employment practices, the charge must be filed with EEOC within 210 days of the occurrence of the alleged unfair practice.
It has been argued that the timely filing provisions are to be administered solely by the agency and that once EEOC has taken jurisdiction over a complaint and proceeded, as here, to launch a serious investigation into defendants' practices, this decision should be collaterally reviewable in a subsequent Title VII court action only where the agency's assumption of jurisdiction lacks a rational basis. Boudreaux v. Baton Rouge Marine Contracting Co., 5 Cir., 437 F.2d 1011, 1014-1015 n.6 (1971). But most courts have preferred to make their own decisions de novo as to whether EEOC jurisdiction was properly asserted. See, e.g., Richard v. McDonnell Douglas Corp., 8 Cir., 469 F.2d 1249 (1972) ; Bartmess v. Drewrys U.S.A., Inc., 7 Cir., 444 F.2d 1186 (1971) ; Cox v. United States Gypsum Co., 7 Cir., 409 F.2d 289 (1969) ; Reynolds v. Daily Press, Inc., E.D.Va., 5 EPD ¶ 7991 (1972).
We do not rely on the agency's own finding here that it had jurisdiction. We believe appellants complied with the timely filing requirement of the Act. The District Court assumed that the latest possible date on which any unfair practice by the local or Spector occurred was April 25, 1967, the date the grievance proceedings ended. Using
As we read appellants' initial, personally drafted, complaints to EEOC, they attack Spector and the local, not merely for an isolated refusal of employment occurring in early 1967, but for maintaining and supporting a discriminatory hiring system throughout 1967 and 1968. Allegations that a discriminatory hiring system continues to exist and continues to deny appellants jobs are sufficient to constitute a timely filing with the agency. See Kohn v. Royall, Koegel & Wells, S.D.N.Y., 59 F.R.D. 515, 517 (1973). Moreover, in a letter to EEOC in March 1969 elaborating on his initial complaint, Macklin further alleged that Spector's continuing refusal to open a Washington terminal and its reliance for D.C. area originating hauls on trucks based in Baltimore and New Jersey constituted a purposeful and discriminatory decision based on race to avoid having to give the Jacobs drivers jobs under the 1967 grievance decision. Thus this case appears similar to Cox v. United States Gypsum Co., supra, where the court found a continuing violation in a layoff situation. Cox stressed that a layoff, as distinguished from a discharge or quitting, tends to suggest a possibility of re-employment and a claim of continuing discrimination "readily suggests that he claims there has been subsequent recall or new hiring which discriminates against him." 409 F.2d at 290. Here similar logic requires us to find appellants' complaint of a continuing nature.
Even as a de novo applicant, under the explicit terms of Title VII Macklin has an ongoing and justifiable expectation of nondiscriminatory treatment. Given Macklin's relationship with Spector, under the grievance decision or as an applicant off the street he was clearly prejudiced by Spector's union-supported and continuing manpower allocation and hiring decisions, if his allegations are to be believed. All this, in our mind, is surely sufficient to conclude that EEOC was asked to investigate not merely an isolated incident occurring in April 1967, but a deep-seated pattern of racial discrimination by Spector and the union against blacks like Macklin that allegedly operated with devastating effect throughout 1967 and 1968, up to and including the date the EEOC complaint was filed. In short, the claim that the "action was not timely commenced is not well taken because one isolated incident is not being challenged but rather an entire allegedly discriminatory system." Banks v. Lockheed-Georgia Co., N.D.Ga., 46 F.R.D. 442, 444 (1968). See also Austin v. Reynolds Metals Co., E.D.Va., 327 F.Supp. 1145, 1152 (1970) ; Tippett v. Liggett & Myers Tobacco Co., M.D.N.C., 316 F.Supp. 292, 296 (1970) ; Sciaraffa v. Oxford Paper Co., D.Me., 310 F.Supp. 891, 896-897 (1970).
Our conclusion as to the continuing nature of the complaint against Spector and the union is buttressed by EEOC's own refusal to regard the filings as focusing simply on events between January and April 1967. To be sure, the EEOC investigator, judging from his report, paid careful attention to the dispute over application of the Master Freight Agreement's provisions to Jacobs' drivers' claims for positions with Spector. But the investigation report also discussed at some length Spector's record of minority employment in the period following April 1967, suggesting
It should be remembered that the jurisdictional requirements we are applying here are not aimed at polished lawyers' pleadings, but rather at charges brought, initially, by laymen usually unassisted by attorneys. See Love v. Pullman Co., 404 U.S. 522, 527, 92 S.Ct. 616, 30 L.Ed.2d 679 (1972). Thus it makes sense, in our view, to avoid reading them as Baron Parke might have, but rather to read them with considerably more latitude and with weight to the construction given them by the Commission in the matters it proceeds to investigate. See Sciaraffa v. Oxford Paper Co., supra, 310 F.Supp. at 897-900.
We also believe the complaint to EEOC should be understood as encompassing events and practices extending well beyond April 1967 for additional reasons. Surely Macklin's allegations cover the local's behavior during the grievance proceeding which ended at that time. So far as we can tell, the local not only failed to press for impartial arbitration of Macklin's seniority claim as an alternative to a decision by a bipartite panel ; it also failed to propose to Spector a broader range of employment alternatives than simply employment at a single New Jersey terminal. Further, the local apparently accepted the interpretation of the Jacobs-Spector agreement as simply a sale of operating rights rather than as one including a sale of a business, and this too may have prejudiced Macklin's opportunities to gain a favorable decision from the grievance committee. There is no question that the union's performance is subject to attack since it may constitute a breach of the local's duty of fair representation, see Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967) ; Glover v. St. Louis-San Francisco R. Co., 393 U.S. 324, 330-331, 89 S.Ct. 548, 21 L.Ed.2d 519 (1969), and if the local's performance is found to be arbitrary or in bad faith and the facts support a finding of racial discrimination, then it would appear liable under Title VII. Local U. No. 12, United Rubber etc. Wkrs v. NLRB, 5 Cir., 368 F.2d 12, 24 (1966), cert. denied, 389 U.S. 837, 88 S.Ct. 53, 19 L.Ed.2d 99 (1967). See
It has been clear since Steele v. Louisville & Nashville R. Co., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 193 (1944), that in negotiating as well as in administering a contract a union is obliged to protect all those it represents and may not consent to provisions or take positions that discriminate on racial grounds against some of its people.
Since the local's relationship with Macklin as bargaining agent continued after the grievance proceeding, clearly
We also disagree with the District Court's holding that Macklin is estopped from proceeding under Title VII because of his decision to pursue his claim for a job with Spector through contractual grievance proceedings. The District Court relied principally upon Dewey v. Reynolds Metals Co., 6 Cir., 429 F.2d 324 (1970), which held that, where a worker had raised a claim of religious discrimination in a prior arbitration which rejected the claim, he was barred from raising the same claim in a Title VII suit. Dewey was affirmed by an equally divided Supreme Court, 402 U.S. 689, 91 S.Ct. 2186, 29 L.Ed.2d 267 (1971). But the import of the Supreme Court's divided vote, which ordinarily is not viewed as a judgment on the merits, see Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), is particularly obscure for our purposes here. The Sixth Circuit in Dewey also decided on the merits that the plaintiff had not made out a case of unlawful discrimination and this aspect of its ruling may have been as responsible for the Supreme Court's division as the holding on the arbitration point.
But even assuming its validity, we do not believe Dewey controls this case. In our view, the most crucial distinction is that here the two levels of bipartite grievance proceedings in which Macklin participated—which we may assume for the moment may be considered an adequate counterpart to the arbitration to which Dewey deferred—did not confront the racial discrimination question that Macklin pressed before EEOC and the District Court. All Macklin sought from the grievance boards was a decision that under the terms of the National Master Freight Agreement Spector was obligated to offer him a position at the end of its current seniority list of over-the-road drivers. Not a hint of racial discrimination was raised until many months after the grievance proceeding had ended when Macklin presumably concluded that his unfulfilled prospects resulted from something more than dispassionate interpretation of a labor contract. We see no reason why this question—the continuing policy of Spector and the local toward blacks interested in over-the-road drivers' positions—should be viewed as conclusively decided by a proceeding aimed at a different issue. Moreover, even if Macklin had raised the racial discrimination issue before the grievance committees, under the terms of the Master Freight Agreement it appears doubtful he would have received any relief on such a ground since neither the Master Freight Agreement nor the Maryland-District of Columbia Agreement contained an antidiscrimination provision. The Master Freight Agreement also provided that grievance adjustment boards and arbitrators were forbidden to make awards on any basis except the provisions of the contract.
The question then becomes whether any other argument supports the District Court's holding. Appellees suggest that Dewey stands for a more sweeping proposition : that workers seeking relief
We find this argument untenable on several grounds. First, the Sixth Circuit itself, and every other circuit considering the question, has rejected this sweeping interpretation of Dewey, and for good reason.
In short, we must overturn the District Court's holding in this aspect of the case on the following grounds : first, the decision of the grievance board could certainly not be said to have any res judicata effect since the racial discrimination claims were not raised because the board had no authority to hear them ; second, a mechanistic application of the election of remedies doctrine has been rejected by all the circuits which have considered the question in a Title VII context ; and third, the customary policy of deferring to the decisions of private grievance boards is not applicable in a case, such as this, where the plaintiff attacks the quality of the representation he received from the union and where the questions of discrimination he seeks to litigate were not covered by the labor contract the grievance board applied.
The District Court also dismissed appellants' claims under 42 U.S.C. § 1981 (1970). The District Court refused to decide whether appellants stated a claim under Section 1981 on the ground that, even if they did, they were barred by the operation of the relevant statute of limitations, 12 D.C.Code § 301(8), a residuary provision setting up a three-year limitation for claims not otherwise provided for by statute. We believe appellants state a claim under Section 1981 and that the three-year limitation period did not run before they filed their action in the District Court.
Section 1981 provides :
(Emphasis added.) While this circuit has not previously decided the applicability of Section 1981 to cases involving racial discrimination by unions and employers, see Stebbins v. Continental Insurance Companies, supra, 143 U.S.App.D.C. at 124-125, 442 F.2d at 846-847, we must do so here. This is so because appellants' claim under Section 1981 runs not only against the local and Spector, but against the International as well. Appellants say their complaint against the International should be viewed as resting on Section 1981. Thus if the International is to remain in this suit, it must be as a Section 1981 defendant.
We need not discuss this issue at any great length, for we are in accord with the overwhelming weight of authority in other circuits that Section 1981 does indeed apply to acts of private racial discrimination by union organizations and employers and should not be read as having been repealed by passage of Title VII in 1964.
Since the federal statute provides no period of limitations to govern Section 1981 claims, we must refer to the appropriate period stated in a statute of local application. See Waters v. Wisconsin Steel Works of International Harvester Co., 7 Cir., 427 F.2d 476, 488, cert. denied, 400 U.S. 911, 91 S.Ct. 137, 27 L.Ed.2d 151 (1970) ; Boudreaux v. Baton Rouge Marine Contracting Co., supra, 437 F.2d at 1017 n.16. And see generally Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 239-240, 90 S.Ct. 400, 24 L.Ed.2d 386 (1969) ; Int. U., United Auto., etc. Wkrs v. Hoosier Cardinal Corp., 383 U.S. 696, 703-706, 86 S.Ct. 1107, 16 L.Ed.2d 192 (1966). The District Court ruled that appellants' claim was most appropriately governed by the residuary limitation of three years in 12 D.C.Code § 301(8), and we see no reason to disagree.
We think not. As to Spector, it is clear from Macklin's complaint that its alleged discriminatory practices as they affected him continued at least up to the time he filed his complaint with EEOC in early 1969. Moreover, as to the local its failure to protect its black members' interests also allegedly continued to that time, according to the complaint, as did its alleged complicity in Spector's allegedly unfair hiring practices. And the same conclusion certainly applies to the complaint as it pertains to the International which, after all, participates in the negotiation of nationwide agreements with truckers.
The approach we prefer is that taken by the Third Circuit in Young v. International Telephone and Telegraph Co., 438 F.2d 757 (1971), and followed by the Fifth Circuit in Caldwell v. National Brewing Co., 443 F.2d 1044 (1971). In those cases, it was properly stressed that Section 1981 and Title VII, in truth, provide for such radically different schemes of enforcement and differ so widely in their substantive scopes that using the policies behind the latter to create procedural barriers to actions under the former would stretch to the breaking point courts' customary duty to accommodate allegedly conflicting legislation. For one thing, as the Third Circuit stressed, 438 F.2d at 737-738, the statutes have radically differing statutes of limitations, with Title VII requiring a complaint to EEOC within 90 or 210 days, and Section 1981 frequently, as here, permitting a substantially longer period. Secondly, Title VII suits are infused with an undeniably special public interest, as provisions for attorneys' fees, waiver of fees, costs and security, and intervention by the United States Attorney General attest. 42 U.S.C. § 2000e-5(e). Section 1981 includes no such provisions. Finally, it is an exaggeration to argue that in passing Title VII Congress intended to make recourse to EEOC conciliation and investigatory procedures the centerpiece of the nation's commitment to ending unfair discrimination in employment and a sine qua non in all employment discrimination cases. Congress was aware that both the courts and the NLRB were already developing separate means of dealing with discrimination against workers by unions and employers, as Steele v. Louisville & Nashville R. Co., supra, Syres v. Oil Workers Int. U., Local 23, 350 U.S. 892, 76 S.Ct. 152, 100 L.Ed. 785 (1956), and the Supreme Court's refusal in Humphrey v. Moore, 375 U.S. 335, 344, 84 S.Ct. 363, 11 L.Ed.2d 370 (1964), to foreclose the question with respect to the NLRB in early 1964 all indicated. Indeed, Congress rejected an amendment to exclude any federal agency but EEOC from dealing with practices covered by Title VII. 110 Cong. Rec. (Part 10) 13650-13652 (1964). Since that time, of course, concurrent jurisdiction in EEOC, the NLRB, and
This is not to say that the District Court, in the exercise of its discretion, is precluded from encouraging the parties to use EEOC conciliation facilities during the pendency of the suit. See Young v. International Telephone & Telegraph Co., supra, 438 F.2d at 764. Obviously, any District Court will explore settlement possibilities prior to final judgment, and the services of the agency may be helpful in this regard. Cf. 42 U.S.C. § 2000e-4(f). But we believe that, in light of the delay that has already marked this action, any decision to call on EEOC facilities with respect to appellants' dispute with the International—the agency's facilities already having apparently been exhausted with respect to the other defendants—should not serve as a subterfuge whereby this action is further prolonged. This case is ripe for further development of the facts and, if need be, trial. These objectives must take primacy.
Reversed and remanded.
In our view, the applicable statute of limitations for purposes of § 1981 should indeed be considered tolled when a complaint is made to EEOC. Boudreaux v. Baton Rouge Marine Contracting Co., supra note 26, 437 F.2d at 1017 n. 16, came to this conclusion, as did the more recent case of Reynolds v. Daily Press, Inc., E.D.Va., 5 EPD ¶ 7991 (1972). First, we believe Title VII indicates a recent congressional decision to favor informal methods of settlement and conciliation short of litigation in employment discrimination cases. Plaintiffs, who often proceed initially without assistance of counsel and bring their complaints first to EEOC in accord with this legislative policy, should not be penalized for this action when they later sue for relief in District Court under both Title VII and § 1981, which overlaps Title VII. This case is therefore different from Condol v. Baltimore & Ohio R. Co., 91 U.S.App.D.C. 255, 199 F.2d 400 (1952), where a panel of this court found no such policy in favor of pre-litigation adjustment in the statute relevant there, the Railway Labor Act, and accordingly refused to toll the statute of limitations for the period when private grievance procedures were utilized. Moreover, we believe the broad purposes of statutes of limitations—prevention of stale claims and unfair surprise—are not frustrated by adopting the rule of Boudreaux and Reynolds. The local and Spector were assuredly put on notice while the case was under investigation by EEOC, for the investigator's report indicates that Spector's records were examined and officials of the local interviewed. Believing as we do that the statute was tolled in early 1969, it follows that Macklin's claim against Spector and the local is sufficient to cover the events of early 1967 for purposes of granting any relief under § 1981 that may be appropriate.
We are aware of the heavy reliance appellees place on a series of cases involving monetary claims against the Government and standing for the proposition that a fixed statute of limitations is not to be considered tolled by submission of the claims to nonmandatory administrative consideration. See Williams v. United States, 434 F.2d 1346, 193 Ct.Cl. 440 (1970) ; Steel Improvement & Forge Co. v. United States, 355 F.2d 627, 174 Ct.Cl. 24 (1966) ; Friedman v. United States, 310 F.2d 381, 159 Ct.Cl. 1 (1962), cert. denied, 373 U.S. 932, 83 S.Ct. 1540, 10 L.Ed.2d 691 (1963). But this rule, based on a series of statutes with fixed limitations and fixed procedures for presentation of claims, should not, in our view, be applied mechanically to the situation before us. For one thing, we are not dealing with a clear expression of congressional intent as to limitations of § 1981 actions, for Congress enacted no statute of limitations applicable to § 1981. As a result, we are forced to create procedural limitations on such actions as a matter of judicial implication. See Waters v. Wisconsin Steel Works of International Harvester Co., supra note 26, 427 F.2d at 488 ; cf. Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 239-240, 90 S.Ct. 400, 24 L.Ed.2d 386 (1969). In this posture, it is our duty to ensure that the procedural limitations we impose are consistent with § 1981's underlying "humane and remedial" policy. Burnett v. New York Central R. Co., 380 U.S. 424, 427-429, 85 S.Ct. 1050, 13 L.Ed.2d 941 (1965). See Mizell v. North Broward Hospital District, 5 Cir., 427 F.2d 468, 473-474 (1970). And we believe the underlying policy of justice and interracial accommodation embedded in § 1981 is not furthered by enmeshing actions under the statute in technicalities that operate to the disadvantage of plaintiffs who have acted entirely in good faith by taking their claims initially to EEOC. Nothing is lost, we believe, by such a recourse, and we must therefore reject the applicability of the cases cited to us.
Even if the statute of limitations were deemed tolled only with the filing of this case in District Court—as is true with respect to the International—it does not necessarily follow that the damage relief which appellants might receive in their suit would be restricted to the economic harm and other damages they suffered in the 3 years prior to the beginning of the District Court action. To be sure, a cause of action normally accrues at the time a wrong is committed and the damage inflicted. In some cases, however, it may take time for the damage to occur, see Delta Theaters, Inc. v. Paramount Pictures, Inc., E.D.La., 158 F.Supp. 644, 649 (1958), or, alternatively, a plaintiff may be understandably unaware that the disadvantage he suffers is the product of wrongful behavior, see Jones v. Rogers Memorial Hospital, 143 U.S.App.D.C. 51, 52-53, 442 F.2d 773, 774-775 (1971) ; Westinghouse Electric Corp. v. City of Burlington, Vt., 122 U.S.App.D.C. 65, 68, 351 F.2d 762, 765 (1965). This case might easily fall into the latter category since it is possible that Macklin was deceived for some time into believing his difficulties in obtaining over-the-road employment resulted merely from a purportedly neutral contract interpretation and from the fortuity of residing in a city, Washington, where there appeared insufficient outgoing traffic to justify Spector's establishing an over-the-road terminal. To the extent he could show that his misperception of the source of his difficulty was justified and that he had good cause not to suspect racial discrimination, he could recover for the period before he realized that he had actually been wronged and the statute of limitations had begun to run. See Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 339, 91 S.Ct. 795, 28 L.Ed. 2d 77 (1971) ; Baker v. F & F Investment, 7 Cir., 420 F.2d 1191, 1199 (1970). Under this analysis, Macklin and the other over-the-road drivers from Jacobs might be able to recover for the over-3-year period elapsing between the closing of Jacobs' over-the-road business and the filing of this suit. Certainly this analysis is relevant in deciding the extent of damage appellants may have suffered from the activity of the International, since it was only with the filing of this suit that the statute of limitations was tolled with respect to the International.