ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT of PENNSYLVANIA.
Gibbons and Hunter, Circuit Judges and Mansmann, District Judge.*fn*
John F. Edwards, an employee of Boeing Vertol Company, appeals from a judgment in favor of the defendants in his action charging that he was discriminated against in employment because of his race. He contends that the trial court erred in denying his motion for discovery with respect to events occurring prior to 1973, in applying the statute of limitations, and in trying the case without a jury. The defendants contend that the action should not have been tried at all because it is barred by res judicata or collateral estoppel. We reverse and remand for a new trial.
Edwards has been employed at Boeing Vertol since 1952, primarily in the Transportation Department as a bus driver. Edwards contends that he has been interested in a promotion to a supervisory position since the early 1960's and has demonstrated that interest by maintaining an above standard work record, and by attending a pre-supervisory training course offered by his employer in 1966. Prior to 1973 there was no formal procedure by which employees could bid on supervisory vacancies. Since the 1960's supervisors in the Transportation Department have been selected by William Platt, with input from other managers. According to Edwards, between 1965 and 1973 at least ten persons, all white, were appointed as supervisors in that department. To Edward's knowledge, only three of these persons had prior supervisor experience.
On September 2, 1971, a class action was filed in the Eastern District of Pennsylvania by several Boeing Vertol employees on behalf of all black employees, alleging a company-wide pattern or practice of racial discrimination on or after September 2, 1965, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e and the Civil Rights Acts of 1866 and 1871, 42 U.S.C. §§ 1981, 1985. Edwards was not a named plaintiff. On November 21, 1973 he filed a charge with the Equal Employment Opportunity Commission (EEOC) alleging racial discrimination in his failure to receive a promotion. In 1974 Edwards testified as a witness in the pending class action, and in 1975 he supplemented his EEOC charge to include allegations of retaliation for that testimony. On November 19, 1980 Edwards received from EEOC a notice of his right to sue. On December 12, 1980 he filed a handwritten pro se complaint which commenced this action. The inartful complaint, in letter form, addressed to the Clerk of the United States District Court for the Eastern District of Pennsylvania, alleges that Boeing Vertol discriminated against him in an ongoing manner. It alleges:
Enclosed is a "right to sue" letter from E.E.O.C. along with my charge. I cannot afford counsel at this time, and am requesting this District Court to appoint in my behalf under the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e-5(f)(1) suitable representation.
There is no mention in the complaint of any other statute. Thus a fair reading of it is that Edwards relied originally only upon Title VII. The pro se complaint does not contain a demand for jury trial. The pro se complaint was served on the defendants, and they filed answers in January of 1981.
On December 28, 1981 counsel entered an appearance on Edwards' behalf, and immediately moved for leave to file an amended complaint. A copy of the proposed amended complaint was served with the notice of motion, and it contained a demand for a jury trial. The amended complaint added a charge under 42 U.S.C. §§ 1981 and 1985 and a demand for money damage. The memorandum of law in support of the motion pointed out that when a claim for legal relief was joined with a claim for the equitable relief available under Title VII, the plaintiff was entitled to a jury trial. The proposed amended complaint added no new parties and made no new factual allegations.
The defendants opposed the motion for leave to file an amended complaint, but filed no affidavits showing that they would be prejudiced in any manner if it were to be granted. The defendants also refused to answer interrogatories with respect to any period prior to May 20, 1973. Counsel for Edwards promptly moved for an order to compel discovery for the period back to September 2, 1965, contending that this date was the governing limitations period.
The trial date had, on December 28, 1981, been fixed for Monday, April 5, 1982. That trial listing was made the same date Edwards' counsel entered an appearance, at a time when his request for appointment of counsel under 42 U.S.C. 2000e-5(f)(1), set forth in his initial pro se pleading, had not yet been acted upon. On Friday, April 2, 1982, the trial court ruled on the pending motions for leave to file an amended complaint and to compel discovery. The court granted the motion for leave to file an amended complaint. It denied the motion for a jury trial as untimely. It denied the motion to compel discovery. Although the trial court did not prepare an opinion, colloquy in the record makes clear that the discovery ruling amounted to a pretrial ruling that the statute of limitations barred consideration of evidence of discrimination occurring prior to May 20, 1973. Counsel moved for reconsideration of the discovery ruling, or in the alternative, for a certification under 28 U.S.C. § 1292(b) that the limitations question involved a controlling question of law as to which there is a substantial ground for difference of opinion and that an immediate appeal would materially advance the ultimate termination of the action. These motions were denied.
The trial commenced as scheduled on April 5, 1982. The court limited Edwards' proofs to acts of discrimination occurring after May 25, 1973. On November 30, 1982 the trial court filed findings of fact and conclusions of law. The court found that in the period after May 25, 1973 race was not a factor in Edwards' failure to receive a promotion. Since he had not established a prima facie case the court found it unnecessary to ...