Appeal from the United States District Court for the Western District of Pennsylvania. (D.C. Civil No. 74-997).
Aldisert, Gibbons and Higginbotham, Circuit Judges.
United Airlines appeals from district court orders providing reinstatement to employment and back pay for the four female appellees, who were allegedly discriminated against by United because of their gender. After a nonjury trial, the district court found that United had discriminatorily terminated appellees' terms of employment after they became pregnant. The court agreed with appellees' theory, pressed again on appeal, that once they were separated from employment under an allegedly unlawful plan, each subsequent failure by United to rehire them was a separate and distinct act of discrimination within the meaning of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.*fn1
Because we believe that the recent Supreme Court decision in United Air Lines, Inc. v. Evans, 431 U.S. 553, 52 L. Ed. 2d 571, 97 S. Ct. 1885 (1977), mandates a determination that the individual appellees did not file their original employment complaints with the Equal Employment Opportunity Commission [EEOC] in a timely fashion as required by 42 U.S.C. § 2000e-5(e),*fn2 and that the district court accordingly should have dismissed the action as time-barred, we reverse.
Appellees Roberta Masco, Joanne McMullen, Janet Martin, and Nancy Deliman were employees of United Air Lines who took maternity leave during the course of their employment in 1970. Pursuant to United's mandatory maternity leave policy, later discontinued, each appellee was to be reinstated when her leave ended only if a position in her former department was available.*fn3 At the same time the maternity leave policy was in effect, United maintained a separate policy of granting leaves of absence for illness or injury, under which an employee on leave retained his or her position, seniority, and job classification. Under this type of leave, the employee was guaranteed a return to employment without loss of benefits.
Because no positions in their former departments were available when they wished to return to work, each appellee was denied reinstatement, i.e., separated from employment, at the end of her maternity leave. The date of separation for each appellee was determined by the district court to be as follows: Masco, June 24, 1970; McMullen, September 25, 1970; Martin, September 23, 1970; Deliman, August 18, 1970.*fn4 After numerous unsuccessful requests that United rehire them, each appellee filed employment discrimination charges with the EEOC: Masco, on August 12, 1973; McMullen, on June 6, 1973; Martin, on August 22, 1973; and Deliman, on October 24, 1973. Right-to-sue letters were subsequently issued to each of them, and they brought the present action in the district court on October 17, 1974.
In its opinion of September 14, 1976, the district court determined that appellees had established "a prima facie case of discrimination by showing the different treatment given to pregnancy leave as compared to temporary disability leaves."*fn5 District Court Opinion at 11.
As originally enacted, what is now section 706(e) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(e), provided that "[a] charge under this section shall be filed within ninety days after the alleged unlawful employment practice occurred . . . ." The limitations period was extended to 180 days by amendment of March 24, 1972.
It is clear that appellees did not file their original complaints within 180 days of their separation from employment. The district court addressed this problem by referring to this court's decision in Jurinko v. Edwin L. Wiegand Co., 477 F.2d 1038 (3d Cir.), vacated and remanded on other grounds, 414 U.S. 970, 94 S. Ct. 293, 38 L. Ed. 2d 214 (1973), which it read as support for the contention that "each denial of requests for reemployment after termination is a separate discrimination for the purpose of the [statutory period]." District Court Opinion at 10. We do not so read Jurinko. And because appellees did not present the appropriate ...