David L. KIRK, Plaintiff-Appellant, v. ROCKWELL INTERNATIONAL CORPORATION, Defendant-Appellee

578 F.2d 814 17 Fair Empl.Prac.Cas. 1380 , 17 Empl. Prac. Dec. P 8556 David L. KIRK, Plaintiff-Appellant, v. ROCKWELL INTERNATIONAL CORPORATION, Defendant-Appellee. No. 77-2640. United States Court of Appeals, Ninth Circuit. July 19, 1978. 1 Stephen H. Silver (argued), of Silver & Wells, Los Angeles, Cal., for plaintiff-appellant. 2 David J. Shapiro (argued), El Segundo, Cal., for defendant-appellee. 3 Appeal from the United States District Court for the Central District of California. 4 Before HUFSTEDLER and WRIGHT, Circuit Judges, and SOLOMON, * District Judge. 5 SOLOMON, District Judge. 6 Appellant, David L. Kirk, a white male, brought this action against his employer, Rockwell International Corporation (Rockwell) for the violation of his civil rights. Appellant asserts that Rockwell discriminated against him on account of his race in violation of Title VII of the Civil Rights Act of 1964 1 and the Civil Rights Act of 1866. 2 The District Court granted Rockwell's motion to dismiss the action on the ground that the claims were time-barred. 7 This appeal raises two issues: (1) whether a state statute of limitations applies to private actions under Title VII, and (2) whether…

concurring specially:

Although I agree with the result reached by the majority, I cannot concur with the reasoning. The majority opinion’s discussion of Johnson v. Railway Express Co. (1975) 421 U.S. 454 , 95 S.Ct. 1716 , 44 L.Ed.2d 295 , assumes that judicial decisions announcing a new application of a statutory rule will not ordinarily be applied retroactively. That assumption is directly contrary to controlling authority. I strongly disagree with the majority’s dictum to the effect that 42 U.S.C. § 2000e-5(f)(l) may require the EEOC to issue right-to-sue letters within 180 days of the filing of a complaint. That dictum is in conflict with controlling authority and the dictum is also in conflict with the statutory scheme for reasons that I hereafter describe. Finally, I express my views on the application of state statutes of limitation to Title VII because the existing law needs clarification that is not supplied by the majority opinion.

Kirk is a white man who seeks to sue his employer, Rockwell International Corporation (Rockwell), for alleged racial discrimination in demoting him from a professional to a non-professional job rank in February, 1971. The essence of Kirk’s…

Appellant, David L. Kirk, a white male, brought this action against his employer, Rockwell International Corporation (Rockwell) for the violation of his civil rights. Appellant asserts that Rockwell discriminated against him on account of his race in violation of Title VII of the Civil Rights Act of 1964 1 and the Civil Rights Act of *816 1866. 2 ■ The District Court granted Rockwell’s motion to dismiss the action on the ground that the claims were time-barred.

This appeal raises two issues: (1) whether a state statute of limitations applies to private actions under Title VII, and (2) whether Johnson v. Railway Express Agency, Inc., 421 U.S. 454 , 95 S.Ct. 1716 , 44 L.Ed.2d 295 (1975), has retroactive application.

I) Facts

In his complaint, appellant alleges that in 1949 he was employed by Rockwell in California as a Radio and 'Radar Mechanic. Eventually, Rockwell promoted him to Material Review Engineer, but, in February, 1971, Rockwell demoted him to Inspector.

On or about April 27,1971 appellant filed a charge with the Equal Employment Opportunity Commission (EEOC). He alleged that Rockwell, when it reduced its staff, systematically demoted whites on the basis of race, 3…