Kitty Jones YATES, et al., Plaintiffs-Appellants, v. MOBILE COUNTY PERSONNEL BOARD, Defendant-Appellee

United States Court of Appeals for the Fifth Circuit1981-10-05No. No. 81-7323

658 F.2d 298

Summary · law.co

Holding. The district court's judgment in favor of the Mobile County Personnel Board and against Johnny Lee Pogue is affirmed. Pogue's Title VII discrimination claim is time-barred because he failed to file an EEOC charge within 180 days of learning of the allegedly discriminatory test results, and the Board did not waive its right to assert this limitations defense.

Johnny Lee Pogue sought to join a class action discrimination lawsuit against the Mobile County Personnel Board based on his failure to achieve a sufficient score on a 1974 civil service examination for the position of City Clerk. The district court dismissed his claim as time-barred under Title VII of the Civil Rights Act. Pogue received notice of his test failure in March 1974 but did not file a charge with the Equal Employment Opportunity Commission within the required 180-day window. Although the named plaintiff in the class action filed her EEOC complaint in November 1976, this late filing did not extend the deadline for Pogue's individual claim because the limitations period runs from when each person knows of the alleged discriminatory act.

Pogue argued that the Personnel Board waived its right to assert the time-bar defense by waiting until August 1979 to formally raise it in response to his claim, missing an earlier deadline set by the district court. The court rejected this argument, finding that the district court properly permitted the Board to raise the defense up until the hearing on Pogue's claim and that Pogue suffered no prejudice from the delayed response.

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Key issues

Whether a petition for mandamus filed in appellate court satisfies notice of appeal requirements
Whether Title VII's 180-day filing deadline applies individually to class members or collectively from the named plaintiff's filing
Whether a defendant waives a statute of limitations defense by raising it after an earlier procedural deadline

Procedural posture

Pogue appealed the district court's dismissal of his Title VII discrimination claim on behalf of a class action against the Mobile County Personnel Board, challenging both the time-bar ruling and whether the Board waived its limitations defense.

Authorities cited

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Opinion · public domain

majority opinion

PER CURIAM:

The district court’s judgment in favor of appellee Mobile County Personnel Board (“Board”) and against appellant Johnny Lee Pogue is affirmed.

Although the parties do not raise the issue of appellate jurisdiction, we must determine whether Pogue timely filed a notice of appeal. Concluding that Pogue satisfied the requirements for the issuance of a certificate under Fed.R.Civ.P. 54(b), the district court entered final judgment against Pogue on February 18, 1981. On March 18, 1981, Pogue filed in this court a “Petition for Supervisory Writ of Mandamus and Certiorari.” This court denied this petition on April 1,1981. In re Johnny Lee Pogue, No. 81-7241. On April 7, 1981, Pogue filed with the district court a formal notice of appeal. A party seeking to appeal normally files in the district court a notice of appeal within thirty days after the entry of the final judgment. Fed.R.App.P. 4(a)(1). A petition for mandamus filed in this court, however, may also satisfy the notice of appeal requirement, especially when the appellant is proceeding pro se (as in Pogue’s ease) and is thus generally ignorant of procedural rules. Jordan v. United States District Court, 233 F.2d 362, 364-65 (D.C.Cir.), vacated on other grounds, 352 U.S. 904, 77 S.Ct. 151, 1 L.Ed.2d 114 (1956), cited with approval in Cobb v. Lewis, 488 F.2d 41, 45 (5th Cir. 1974); 9 Moore’s Federal Practice H 203.09 (1980). Pogue’s petition clearly evinces his intent to appeal. The petition specifies Pogue as appellant, designates the district court’s February 18, 1981, final judgment against him as the judgment from which he appeals, and names this court as the court to which he takes his appeal. Cobb v. Lewis, 488 F.2d at 45; Fed.R.App.P. 3(c) (appeal shall not be dismissed for informality of form or title of notice of appeal). We therefore hold that Pogue’s petition of March 18, 1981, satisfied the requirements for a timely notice of appeal.

On the merits, the district court ruled that Pogue’s Title VII claim was time-barred. (R-138) Title VII requires persons claiming discrimination to file a complaint with the Equal Employment Opportunity Commission (“EEOC”) within 180 days after the allegedly discriminatory practice occurs. 42 U.S.C.A. § 2000e-5(e) (West 1974). This limitations period begins to run from the time that the complainant knows or reasonably should know that the challenged act has occurred. Hamilton v. General Motors Corp., 606 F.2d 576, 579 (5th Cir. 1979); Chappell v. Emco Machine Works Co., 601 F.2d 1295, 1303 (5th Cir. 1979); Reeb v. Economic Opportunity Atlanta, Inc., 516 F.2d 924, 931 (5th Cir. 1975); see Delaware State College v. Ricks, 449 U.S. 250, 256-58, 261, 101 S.Ct. 498, 503-504, 506, 66 L.Ed.2d 431, 439-40, 442 (1980). Here, Pogue attempts to join this class action on the basis of a February 4, 1974, test for the position of City Clerk of Prichard, Alabama. On March 25, 1974, Pogue was notified of his failure to achieve a test score high enough to warrant the placing of his name on the employment register for the position. Thus, on March 25, 1974, the alleged discrimination against Pogue was complete and he was aware of all of the facts necessary to claim a Title VII violation. Pogue has not alleged that he himself filed a complaint with the EEOC as to this test. The named plaintiff in this class action, Kitty Jones Yates, did not file her EEOC complaint until November 16, 1976, more than 180 days after Pogue received notice that he failed the test. Pogue’s claim is therefore barred under Title VII.

Pogue argues that the Board waived its right to assert the limitations defense by failing to respond to his individual claim until August 10, 1979, well after the May 14, 1979, deadline set by the district court. However, the district court permitted the Board to raise the limitations defense up to the time of the hearings on the individual class members’ claims (R-118-19), in effect allowing the Board to amend its original answer to the named plaintiff’s complaint. See Fed.R.Civ.P. 15(a) (district court shall freely give leave to amend pleadings when justice so requires). The Board’s response, expressly raising the statute of limitations defense (R-177), was filed August 10, 1979, well before the August 24,1979, hearing on Pogue’s claim. We cannot say that Pogue was prejudiced in any way by the Board’s failure to raise the limitations defense by May 14, 1979. Thus, we hold that the Board did not waive the limitations defense.

AFFIRMED.

. Pursuant to Fed.R.App.P. 4(a)(1), we direct the clerk of this court to note on Pogue’s petition the date the petition was filed in this court (j. e., March 18, 1981) and to transmit same to the clerk of the district court. This petition shall be deemed filed in the district court on March 18, 1981. Fed.R.App.P. 4(a)(1).

. After Pogue requested the district court to transmit parts of the record to this court, the Board requested the district court clerk to supplement the record on appeal with other documents omitted by Pogue. Pogue then filed in the district court an objection to this supplementation. The district court apparently did not rule on Pogue’s objection, and Pogue has not renewed his objection to this court. Even if he did renew this objection, however, we would still permit the supplementation because the documents omitted by Pogue are material to the Board’s arguments. Fed.R.App.P. 10(e).