Full opinion text
KUNZIG, Judge. This case involves two major issues, jurisdictional and proof of discrimination, which surround allegations of racial and sexual discrimination at General Motors’ Allison Division plant in Indianapolis, Indiana. In addition to the preliminary jurisdictional issue, there is a second threshold problem concerning the appropriate statute of limitations. In a lengthy and thorough decision, Judge Noland of the Federal District Court for the Southern District of Indiana found that General Motors had not discriminated against either the individual plaintiffs or the classes they represent. Consequently, he denied declaratory, monetary, and injunctive relief under both Title VII of the Civil Rights Act of 1964, 78 Stat. 253, 42 U.S.C. §§ 2000e — 2000e—17 (1976) and the Civil Rights Act of 1866, 42 U.S.C. § 1981 (1976). One threshold issue is jurisdictional. The problem involves the necessity of receiving a right to sue letter from the Equal Employment Opportunity Commission (EEOC) in order to maintain an action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (1976). We follow the Supreme Court’s decision in Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974) and hold that receipt of a right to sue letter is a prerequisite to the maintenance of suit under Title VII. A second threshold problem requires us to determine the appropriate statute of limitations under Indiana law for the Civil Rights Act of 1866, 42 U.S.C. § 1981 (1976). Here, we follow our decision in Hill v. Trustees of Indiana University, 537 F.2d 248 (7th Cir. 1976), and agree with Judge Noland that a two-year statute of limitations is appropriate. The second major issue for discussion involves the manner of proving discrimination through the use of statistics under Title VII and section 1981 for the class actions. We consider that the district judge properly relied on defendants’ statistics showing the flow of people by race and sex into and within the work force rather than plaintiffs’ statistics concentrating on specific instances in time when an artificial discrepancy occurred. To the extent not inconsistent with the following, the court adopts Judge Noland’s Memorandum of Opinion and attaches it (with the exception of certain portions not challenged on appeal discussing the claims of individual class members) as an appendix hereto. We feel it necessary, however, to analyze and clarify in an abbreviated manner our position on the above two major issues. HISTORY OF THE CASE General Motors Allison plant engineers, manufactures and assembles aircraft, diesel and locomotive engines. The total work force has fluctuated between 13,000 and 15,600 employees. The workers are divided into salaried and hourly employees. Ninety-six percent of the hourly workers are skilled or semi-skilled. Of the salaried work force, some seventy-five percent are professionals and some fifteen percent are clerical or office help. Numerous employees are represented in collective bargaining by Local 933, United Automobile Aerospace and Agricultural Implement Workers of America. In 1973, nine minority and women employees filed suit against General Motors (GM) under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e-17 (1976) and the Civil Rights Act of 1866, 42 U.S.C. § 1981 alleging racial and sexual discrimination in GM’s employment practices. Specifically, plaintiffs charged GM with employment discrimination in the areas of hiring, job assignment, rates of pay, entry into skilled trades, transfer and promotion in union-covered jobs, and promotion to supervisory and managerial positions. As to the union defendants, plaintiffs charged them with violating Title VII and section 1981 both for permitting GM to engage in discrimination and engaging in collective bargaining which denied plaintiffs equal opportunity. Plaintiffs sought declaratory, monetary and injunctive relief. Judge Noland held that neither GM nor the unions discriminated against either the named plaintiffs or the classes they represented. As stated above, we agree with the district court. Furthermore, we note that plaintiffs only dispute the legal standards applied and not the specific findings of fact. Initially, the lower court had to determine the relevant time frame within which to analyze plaintiffs’ claims. The court determined that a right to sue letter was required under Title VII and that a two-year statute of limitations applied as to section 1981 claims. Under discussion in our first section will be the legal standards applicable to these jurisdictional issues. Judge Noland then had to determine which classes to certify under Federal Rule of Civil Procedure 23(a). He properly certified five classes. (See appendix, Part II, infra.) The district judge also determined correctly the standards of liability for defendants’ alleged misconduct. (See appendix, Part III, infra.) Remaining problems concern proof of discrimination. Our difficulties here deal with plaintiffs’ class claims which largely involved statistical proofs by both parties. As to the appropriate use of statistics, we feel defendants’ figures showing a flow over time are more appropriate. This will be discussed more fully in our section II. I. THRESHOLD PROBLEMS The two threshold problems are of paramount importance because — by determining whether a right to sue letter is needed under Title VII and the relevant statute of limitations for section 1981, we are thereby outlining the parameters within which to consider evidence of discrimination. A. Title VII — Right to Sue Letter In the majority of Title VII claims before the district court, individual plaintiffs filed charges with the EEOC between 1970 and 1973. Thereafter, the EEOC issued right to sue letters based on those charges and plaintiffs brought suit in 1973. As to these claims, there are no jurisdictional problems. The time period in question under Title VII in this court relates solely to the charges of discrimination in promotion and transfer of hourly workers. The individual employee and class representative for these claims is Beulah Wallace. She filed a charge with the EEOC on August 13, 1970 alleging racial and sexual discrimination in promoting and transferring hourly employees. Under that charge and subsequent right to sue letter, the appropriate time frame begins October 17, 1969. That period for the individual representative of the class also controls the time period for the class. Romasanta v. United Air Lines, Inc., 537 F.2d 915 (7th Cir. 1975), aff’d sub nom. United Air Lines v. McDonald, 432 U.S. 385, 97 S.Ct. 2464, 52 L.Ed.2d 423 (1977); Bowe v. Colgate Palmolive Co., 416 F.2d 711, 720 (7th Cir. 1969). Ms. Wallace, however, had also written the EEOC in 1966 to charge defendants with discrimination as to hourly workers in 1966. Plaintiffs argue that this earlier notification should be used to determine the time period for review. Obviously, if plaintiffs’ argument were adopted, the time frame would extend back from 1969 to sometime in 1965-66. As with Judge No-land, we cannot agree with plaintiffs. Congress has provided explicit jurisdictional requirements for Title VII in 42 U.S.C. § 2000e-5 (1976). As the Supreme Court has noted, plaintiffs here had to meet a two-part requirement in order to maintain suit against GM. First, plaintiffs must have filed a charge with EEOC. Second, they must have received a right to sue letter from the EEOC and acted upon it. Alexander v. Gardner-Denver Co., 415 U.S. 36, 47, 94 S.Ct. 1011, 1019, 39 L.Ed.2d 147 (1974); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798, 93 S.Ct. 1817, 1822, 36 L.Ed.2d 668 (1973); Choate v. Caterpillar Tractor Co., 402 F.2d 357 (7th Cir. 1968). As stated, there is no .question as to the 1970 charge and subsequent right to sue letter conferring jurisdiction as of October 17, 1969. The difficulty with her 1966 charge is that Ms. Wallace only satisfied half the requirements. Plaintiff Wallace’s 1966 charge can be considered to constitute a proper complaint filed with the EEOC. See Love v. Pulman, 404 U.S. 522, 92 S.Ct. 616, 30 L.Ed.2d 679 (1972). However, she never sought nor received a right to sue letter from EEOC in relation to these charges. Plaintiff Wallace’s failure to pursue the 1966 charges further with EEOC is similar to the neglect we held jurisdictionally fatal in Gibson v. Kroger Co., 506 F.2d 647 (7th Cir. 1974). In Gibson, we agreed with the D.C. Circuit’s decision in Stebbins v. Continental Insurance Companies, 442 F.2d 843 (D.C. Cir. 1971), that Title VII claimants are under a duty to seek their right to sue letter if they wish to pursue their claim in the courts. 506 F.2d at 652. While we recognize that in special circumstances the claimant may be unable to seek the right to sue letter, and hence the strict requirements may be loosened, those circumstances would seem limited to instances where the claimant’s failure is due to misleading acts committed by the EEOC, employer or union. See, Gibson, id. at 652; Choate v. Caterpillar Tractor Co., 402 F.2d 357, 361 (7th Cir. 1968) (complainant should not be held liable for EEOC delay); Cf., Leake v. University of Cincinnati, 605 F.2d 255 (6th Cir. 1979) (employer’s misleading); Dartt v. Shell Oil Co., 539 F.2d 1256 (10th Cir. 1976), aff’d by an equally divided court, 434 U.S. 99, 98 S.Ct. 600, 54 L.Ed.2d 270 (1977). In this situation, moreover, the EEOC had no duty to Ms. Wallace on receipt of her 1966 letter other than to inform her that it could not move ahead until the state agency completed its proceedings or after 60 days had elapsed. The EEOC did in fact inform plaintiff of the need to take further action in order to treat the letter as a charge. Yet Ms. Wallace took no further action until 1970. Moreover, when she subsequently sought a right to sue letter concerning the 1970 charges, neither she nor her attorney sought it as to the 1966 charges. Thus, in light of the clear statutory language and controlling precedent, we are compelled to conclude that plaintiff’s failure to request and obtain a right to sue letter as to the 1966 charges deprives the court of any jurisdiction over those earlier years. As the Supreme Court stated in United Air Lines, Inc. v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977), “A discriminatory act which is not the basis for a timely charge is the legal equivalent of a discriminatory act which occurred before the statute was passed.” Id. at 558, 97 S.Ct. at 1889. In summary, we concur with the district judge that the failure to procure a right to sue letter as to the 1966 charges was fatal. Thus, the 1970 charges where plaintiff Beulah Wallace followed the appropriate procedures are controlling, and the jurisdictional date governing her individual and class representative aspect of this case is October 17, 1969. B. § 1981 — State Statute of Limitations The other threshold issue also deals with the appropriate time frame within which the district court could consider plaintiffs’ charges of discrimination. Plaintiffs sued defendants alternatively under 42 U.S.C. § 1981 (1976) for all race-related charges of discrimination. Since section 1981 contains no specific statute of limitations, we must look to the “most appropriate one provided by state law.” Johnson v. Railway Express Agency, 421 U.S. 454, 462, 95 S.Ct. 1716, 1721, 44 L.Ed.2d 295 (1975). We conclude, as did the district court, that a two-year statute of limitations applies. In applying the Supreme Court’s Johnson rule, we have stated, “[T]he applicable limitations period is that which a court of the State where the federal court sits would apply had the action been brought there.” Beard v. Robinson, 563 F.2d 331, 334 (7th Cir. 1977). We must be mindful, however, that “considerations of state law may be displaced where their application would be inconsistent with the federal policy underlying the cause of action under consideration.” Johnson v. Railway Express Agency, supra 421 U.S. at 465, 95 S.Ct. at 1722; Beard v. Robinson, supra at 334. We are faced in this case with choices ranging between two and 15 years. The selection largely boils down to choosing between the two-year tort statute of limitations, Ind.Code Ann. § 34-1-2-2 (1973), and a 15-year residuary statute. Id. at § 34-1-2-3. When faced with such a choice under Illinois law, we felt the five-year general statute of limitations was more appropriate than a two-year tort limit. Beard v. Robinson, 563 F.2d 331, 334-38 (7th Cir. 1977); Teague v. Caterpillar Tractor Company, 566 F.2d 7 (7th Cir. 1977). Nonetheless, it is Indiana rather than Illinois law which must apply here. See Johnson v. Railway Ex press Agency, supra. Moreover, in Hill v. Trustees of Indiana University, 537 F.2d 248 (7th Cir. 1976), we have already chosen the two-year statute of limitations for analogous section 1983 claims. The reason for our choice in Beard and Teague was two-fold. First, the Illinois statute of limitations which we selected over the two-year tort period specifically applied to statutorily created causes of action. Beard, supra at 335. Since plaintiff’s rights in those cases were created by statute, e. g., § 1981, Ill.Rev.Stat. ch. 83, § 16 was “most closely analogous” as required by Johnson v. Railway Express Agency, supra. Secondly, we rejected the approach taken in Jones v. Jones, 410 F.2d 365 (7th Cir. 1969), cert. denied, 396 U.S. 1013, 90 S.Ct. 547, 24 L.Ed.2d 505 (1970), which examined the claimant’s underlying facts and sought to analogize it to an appropriate common law action. Beard, supra at 336. In Beard, we stated that we preferred to “avoid the often strained process of characterizing civil rights claims as common law torts.” Id. at 337. This case does not offer, however, the same choices as existed under Illinois law. The parties presented us with a choice between Indiana’s 15-year residual statute, Ind.Code Ann. § 34-1-2-3 (Burns 1973) and a two-year statute applicable to actions for injuries to the person, character or personal property, and generally considered by Indiana courts as applicable to tort causes of action. Illinois’ five-year residual statute, Indiana’s 15-year statute is inappropriate and probably unworkable here. In Beard, we noted that Illinois’ five-year residual statute had been interpreted as applying to statutorily created causes of action. Beard, supra at 335. By contrast, the 15-year residual statute of limitations has been generally limited by Indiana’s courts to real property claims. See, e. g., Yarlott v. Brown, 192 Ind. 648, 138 N.E. 17 (1923). No case law exists extending § 34-1-2-3 to statutory causes of action. Gantt v. Bethlehem Steel Corp., 17 Emp. Practices D. ¶ 8502 (N.D.Ind.1978). As both Judge Noland below, and Judge McNagny in Gantt, supra, have noted, serious problems would exist in production of proof if a 15-year statute of limitations were incorporated into section 1981 actions. Unfairness would exist in requiring employers to defend 15-year-old claims where the evidence would most likely be lost or destroyed. Moreover, given the fluidity of employee movement and change-over — particularly in a 10,000+ employee plant— there would be serious problems of witness availability. Comparing our situation at bar once more to Beard and Teague, there is a major difference in choosing between a two- and five-year statute as opposed to two- and 15-year limits. Moreover, while we realize that applying state statutes to federal causes of action necessarily results in some lack of uniformity, Schiffman Bros., Inc. v. Texas Co., 196 F.2d 695, 698 (7th Cir. 1952), we must remember that state law is displaceable where its application is inconsistent with the federal policy underlying section 1981. Johnson, supra 421 U.S. at 465, 95 S.Ct. at 1722; Beard, supra at 334. Applying a 15-year statute in Indiana would extend the rights of that state’s residents substantially beyond the maximum periods allowed in this and other circuits. See, e. g., Runyon v. McCrary, 427 U.S. 160, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1970) (upholding choice of a two-year Virginia statute); Zuniga v. AMFAC Foods, Inc., 580 F.2d 380 (10th Cir. 1978) (applying six-year limit); Tatum v. Golden, 570 F.2d 753 (8th Cir. 1978), cert. denied, 436 U.S. 960, 98 S.Ct. 3079, 57 L.Ed.2d 1127 (1978) (five-year statute); Jones v. San Antonio, 586 F.2d 1224 (5th Cir. 1978) (two-year Texas statute). All told, we find the 15-year statute of limitations encompassed in Ind. Code Ann. § 34-1-2-3 (Burns 1973) totally inappropriate for section 1981 actions. See, Gantt v. Bethlehem Steel Corp., 17 Emp. Prac.D. ¶ 8502 (N.D.Ind.1978). Although the parties did not raise the issue, we feel that a thorough analysis must include a discussion of the applicability of the six-year statute of limitations governing contractual actions. Ind.Code Ann. § 34-1-2-1 (Burns 1973). Federal District Judge McNagny chose that period in Gantt v. Bethlehem Steel Corp., 17 Emp.Prac.D. 18402 (N.D.Ind.1978). He did so, however, where the claimant filed more than six years after the alleged injury. Thus, the important choice was between the 15-year residuary statute, which he properly rejected, and a six-year or shorter period, which he adopted, using Ind.Code Ann. § 34-1-2-1 (Burns 1973). In our reasoning in Beard, supra, we noted that the choice of a statute of limitations under section 1981 (for discriminatory actions by private individuals) is essentially the choice to be made under 42 U.S.C. § 1983 (1976) (for discriminatory actions under color of state law). Consequently, in Beard we adopted the same statute of limitations for section 1981 actions in Illinois as we had adopted there for section 1983 actions in Wakat v. Harlib, 253 F.2d 59 (7th Cir. 1958). Similarly, this court has already adopted the two-year statute of limitations in Ind.Code Ann. § 34-1-2-2 (Burns 1973) for section 1983 actions. Hill v. Trustees of Indiana University, 537 F.2d 248, 254 (7th Cir. 1976) (Kunzig, J., concurring with Stevens, Circuit Justice, concurring specially). Just as Wakat’s choice governed Beard’s decision, so does Hill’s choice control the case at bar absent some more “closely analogous” statute. Cf., Sacks Brothers Loan Co., Inc. v. Cunningham, 578 F.2d 172 (7th Cir. 1978). But no such statute exists. An analysis of other circuits’ decisions is of little help. Generally, other courts have chosen a “contract” or “tort” statute; but, it was because that statute had been interpreted specifically to include actions based on statute. Zuniga v. AMFAC Foods, Inc., 580 F.2d 380 (10th Cir. 1978); Tatum v. Golden, 570 F.2d 753 (8th Cir. 1978) (Iowa law); Martin v. Georgia-Pacific, 568 F.2d 58 (8th Cir. 1977) (Arkansas law). We still strive to adhere to Beard and avoid characterizing actions as common law torts. Yet, as this case indicates, when the general statute of limitations fails and no easy comparison exists, cf., Green v. Ten Eyck, 572 F.2d 1233 (8th Cir. 1978), some analogies must be used. Making an analogy, plaintiffs’ claims here fit better under the Indiana statute applicable to injuries to the person rather than the statute governing interference with contract. Indiana’s tort statute for “injuries to person or character,” Ind.Code Ann. § 34-1-2 — 2 (Burns 1973) has been given a broad interpretation including abuse of process, Cassidy v. Cain, 145 Ind.App. 581, 19 Ind. Dec. 168, 251 N.E.2d 852 (1969), and loss of a spouse’s services, Merritt v. Economy Department Store, 125 Ind.App. 560, 128 N.E.2d 279 (1955). By contrast, Indiana has limited its contract section, Ind.Code Ann. § 34-1-2-1 (Burns 1973) to actions based on a contract. As another court stated, the “essential nature of the [civil rights] claim is the interference with . . . not the breach of a contractual obligation.” Ingram v. Steven Robert Corp., 419 F.Supp. 461 (S.D.Ala.1976), aff’d 547 F.2d 1260 (5th Cir. 1977) (applying statute for injuries to the person). Cf., Runyon v. McCrary, 427 U.S. 160, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1970); Partin v. St. Johns- bury, 447 F.Supp. 1297 (D.R.I.1978). In the case at bar, also the alleged damage was due to a violation of plaintiffs’ personal rights to be free from racial and sexual discrimination. The actions were not based on a breach of contract. Thus, in our opinion, Indiana’s two-year tort statute is more analogous than the six-year contract provision. See Johnson v. Railway Express, supra. A recent Indiana Court of Appeals decision supports our conclusion. In Merimee v. Brumfield, 72 Ind. 765, 397 N.E.2d 315 (1st Dist. 1979), the court was required to construe the meaning of the phrase “personal injuries” in the context of Indiana’s survival statute. Ind.Code Ann. § 34-1-1-1 (Burns 1973). The Indiana court read that phrase to include “injuries to the physical body, malicious prosecution, false imprisonment, libel, slander, or any affront or detriment to the body, psyche, reputation or liberty.” Merimee v. Brumfield, 72 Ind. at 769, 397 N.E.2d at 318 (emphasis added). Seemingly, Indiana courts would read the phrase “personal injuries” in Ind.Code Ann. § 34-1-2-2 (Burns 1973), similarly since both phrases were placed in the two statutes simultaneously. See Indiana Acts of 1881 (Special Session), ch. 38, §§ 7, 38, p. 240. Interpreted to include “any affront or detriment to . reputation or liberty,” § 34-1-2-2 seems most closely analogous to a claim based on “interference with a constitutionally protected right.” Ingram v. Steven Robert Corp., 419 F.Supp. 461 (S.D.Ala.1976), aff’d 547 F.2d 1260 (5th Cir. 1977). The application of the tort period is further supported by two other statutory provisions. Another closely analogous statutory limitations period for section 1981 is found in Ind.Code Ann. § 22-3-9-8 (Burns 1973), also providing a two-year statute of limitations for employers’ liability for injuries to employees. Certainly, the section 1981 actions are based on a violation of the employee’s civil rights — an injury the employer inflicts upon the employee. Considering this analogous, the specific section’s identical two-year period together with the tort section’s two-year period supports the conclusion that a two-year period applies. Moreover, since plaintiffs initiated their action, Indiana has enacted Ind.Code Ann. § 34-1-2-1.5 (Burns Cum.Supp.1978) in 1977. This new section now specifically provides a two-year period for all employment related actions. The recent statement by Indiana’s legislature indicates its judgment that a two-year period is best applicable to employment related actions. Given the lack of any precisely analogous statute in state law, cf., Curran v. Portland School Committee, 435 F.Supp. 1063, 1080 (D.Me. 1977), we are reassured, by this later enactment, that our choice of the two-year “tort” period, Ind.Code Ann. § 34-1-2-2 (Burns 1973), is correct. See, Gantt v. Bethlehem Steel Corp., 17 Emp.Prac.D. ¶ 8502 (N.D.Ind. 1978) (The new two-year employment related actions statute, Ind.Code Ann. § 34-1-2-1.5 (Burns Cum.Supp.1978) would control a § 1981 action if brought today). In summary, after a careful examination of Indiana law and our precedents, including especially our adoption of a two-year statute in Indiana in a section 1983 setting, Hill, supra, we consider a two-year statute of limitations applicable to plaintiffs’ section 1981 actions. II. PROOF OF DISCRIMINATION The final subject to be discussed is the manner in which both sides attempted to use statistics to prove or disprove discrimination in the class action suits. Plaintiffs undertook to prove their claims of class-wide discrimination on the basis of data focusing on an instant in time (snapshot statistics). Plaintiffs would take a date, look at a job, and determine the percentage of women and minorities in that job at that instant compared to the percentages in the relevant workpool. Anytime the percentages of women and minorities in the “snapshot” were less than those in the workpool, plaintiffs considered themselves to have proven discrimination by defendant. While plaintiffs are correct in using this method to make out their prima facie case, Hazelwood School District v. United States, 433 U.S. 299, 97 S.Ct. 2736, 53 L.Ed.2d 768 (1977), defendants were entitled to rebut that prima facie case through more refined, accurate and valid statistics. Furnco Construction Corp. v. Waters, 438 U.S. 567, 576-78, 98 S.Ct. 2943, 2949-50, 57 L.Ed.2d 957 (1978); Teamsters v. United States, 431 U.S. 324, 339, 360, 97 S.Ct. 1843, 1856, 1867, 52 L.Ed.2d 396 (1977). We find the district court was correct in relying on defendants’ statistics. Defendants submitted statistics depicting the “flow” of its workforce — the movement of personnel into and within the company. Thus these statistics showed the gains in employment women and minorities made from year to year. In other words, defendants showed the number of openings they had available for each type of position, the percentage of minorities or women in the relevant labor pool and, finally, the percentage of women and minorities actually hired for these openings. In so doing, defendants showed the actual hiring decisions made during the relevant time periods. As the record proves, GM’s hiring at Allison plant illustrates the positive results of their affirmative action program. Women and minorities were actually hired and promoted at a greater rate than their percentages in the relevant workpools would have suggested. Moreover, plaintiffs’ snapshot statistics incorporate discriminatory impacts occurring before the relevant time frame, United Air Lines, Inc. v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977). Thus, given Congress’ imposition of a statute of limitations for Title VII actions and direction to impose such limits for section 1981, see, 42 U.S.C. § 1988 (1976), defendants’ approach emphasizing the day-to-day decisions made during the relevant period are better than plaintiffs’, which include pre-statute of limitations actions by virtue of their use of cumulative statistics. By relying on cumulative statistics alone, plaintiffs grouped defendants’ hiring decisions from 20-30 years ago with those of the last five years. Defendants could have hired all women and minorities for those jobs which opened during the relevant statutory periods, yet, because of the large number of existing non-minority male employees carried over from before, it would look as though defendant was still discriminating. The residue of past discrimination is not immediately eliminated. In the instant case, it is more relevant to look not at a workforce makeup on a given day, but to the chances Allison had to change its percentage of women minorities through current hiring decisions. In so doing, we do not see a picture of a discriminatory employer during the relevant period, supra Part I. All told, we conclude that Judge Noland treated the statistical evidence properly and agree that GM did not discriminate against the individual plaintiffs or classes they represent. Accordingly, we concur with the determination of the district judge that plaintiffs’ claims under Title VII and section 1981 were not proven. We have expanded to some degree his treatment of two major issues which we consider important: (1) threshold problems (the need of a right to sue letter under Title VII and, the appropriate Indiana statute of limitations to incorporate into section 1981); and (2) proof of discrimination (the correct means of using statistics). Additionally, to the extent not inconsistent with the above, we have adopted Judge Noland’s Memorandum of Opinion and attach it as an appendix hereto. The judgment of the district court is Affirmed. APPENDIX UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OP INDIANA INDIANAPOLIS DIVISION Movement For Opportunity And Equality, et al vs. Detroit Diesel Allison Division Of General Motors Corporation, et al Nos. IP 73-C-412 IP 73-C-413 MEMORANDUM OF OPINION, FINDINGS OF FACT AND CONCLUSIONS OF LAW MEMORANDUM OPINION This action was commenced by the plaintiffs on August 23,1973. An amended complaint was filed on January 17, 1977. The action presents claims for relief under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and under 42 U.S.C. § 1981. Plaintiffs, Movement for Opportunity and Equality (M.O.E.) and nine individual present and former employees of defendant, brought this action on their own behalf and on behalf of other persons similarly situated pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure. Defendants are Detroit Diesel Allison Division of General Motors (Allison), Local 933 United Automobile, Aerospace and Agricultural Implement Workers of America (Local 933), and International United Automobile, Aerospace and Agricultural Implement Workers of America-U.A.W. (U.A.W.). The complaint alleged both individual and class claims against all defendants. The class claims against Allison are as follows: 1. Discrimination against females in the hiring of employees. 2. Discrimination against blacks in the hiring of salaried employees. 3. Discrimination against black and female employees in assignment to jobs. 4. Discrimination against black and female employees in selection for the EIT training program. 5. Discrimination against black and female employees in promotion to the position of Group Leader. 6. Discrimination against black and female employees in the denial of job transfers and advancement through the operation of the seniority system. 7. Discrimination against black and female employees in the selection of foreman, general foreman, and superintendents. 8. Discrimination against black and female employees and applicants in the application of educational criteria for selection into salaried positions. 9. Discrimination against black and female salaried employees in promotions. 10. Discrimination against black and female employees in salaried income. The class claims against Local 933 and the U.A.W. allege they have failed to fairly represent blacks and females as follows: 1. Discrimination against blacks and females by negotiating and entering into collective bargaining agreements which have the intent and effect of denying blacks and females equal employment opportunities. 2. Discrimination against blacks and females by refusing to process grievances on their behalf on the same basis as for white males. 3. Failing to act affirmatively to cause the employer to refrain from discriminating against blacks and females because of their race and sex. 4. Failing to effectively represent blacks and females by passively permitting the employer to discriminate against blacks and females because of their race and sex. All of these claims are alleged to violate both Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981. On November 14, 1977, the Court granted plaintiffs’ motion for class certification pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure, the class being described as: “[A] class of black and female employees of the defendant corporation who have been adversely affected by one of the following alleged practices of the defendants: 1. Discrimination against black and female employees in assignment to jobs. 2. Discrimination against black and female employees in selection for the EIT training program. 3. Discrimination against black and female employees in promotion to the position of group leader. 4. Discrimination against black and female employees in the denial of job transfer and advancement through operation of the seniority system. 5. Discrimination against black and female salaried employees in promotions.” This certification has not been challenged by the parties. The claims of the individual plaintiffs against Allison, Local 933 and the U.A.W. are as follows: 1. Discrimination against Glenn L. Howard, a black male, by denial of disability benefits because of his race and retaliation against Howard through refusal to recall him from layoff and other retaliatory acts due to his filing of charges of racial discrimination. Howard received a right-to-sue letter on July 23,1973 in response to charges filed with the EEOC on November 27, 1972 and June 14, 1973. 2. Discrimination by Allison against Beulah M. Wallace, a black female, in refusing to upgrade her to positions to which she was entitled by seniority because of her race and sex and by harassing her because of her race and sex. Wallace received a right-to-sue letter on July 23, 1973, in response to charges filed with the EEOC on August 13, 1970. February 17,1972, March 31,1972, July 31, 1972 and November 8, 1972. 3. Discrimination against Johnny Castille, a black male, in laying him off because of his race and denying him promotions because of his race. Castille received a right-to-sue letter on July 23, 1973, in response to charges filed with the EEOC on January 24, 1972 and February 7, 1973. 4. Discrimination by Allison against Kenneth A. Bebley, a black male, in an award given under the General Motors Suggestion Plan because of his race. Bebley received a right-to-sue letter on July 23, 1973, in response to charges filed with the EEOC on October 1, 1970. 5. Discrimination by Allison against Roosevelt Mason, a black male, by harassment and discipline and acquiescence thereto because of his race. Mason received a right-to-sue letter on July 23, 1973 in response to charges filed with the EEOC on May 4, 1970. 6. Discrimination by Allison against Delores H. Dungey, a black female, in promotion and through harassment because of her race and sex. Dungey received a right-to-sue letter on July 23, 1973, in response to charges filed November 9, 1971. 7. Discrimination against Herman Test, a black male, by bumping him from an upgrade by grievance and not processing his grievance to this action, by denying him overtime, and by assigning him to unfavorable assignments all because of his race. Test received a right-to-sue letter on August 13, 1973 in response to charges filed with the EEOC on November 14, 1972. On December 5, 1977, Geneva Test, administratrix of the estate of Herman Test, was substituted as party plaintiff for Herman Test, deceased. 8. Discrimination by Allison against James Fletcher, a black male, by refusing to approve his application for promotion, refusing to promote him, unlawfully discharging him, and by harassing him all because of his race. 9. Discrimination by Allison against Willie G. Griffin, a black male, by denying him entry into a skilled trades program and by denying him the benefits of seniority, particularly in regard to overtime work, all because of his race. 10. Injury to M.O.E. is alleged derivatively through the detrimental effect upon its ability to raise funds and protect its members from employment discrimination which resulted from the alleged discrimination of the defendants against its members. Defendants denied all allegations of discrimination. Trial of this action to the Court without a jury commenced on December 5, 1977, and concluded on December 21, 1977. Motions to dismiss were granted for Local 933 and the U.A.W. at the conclusion of plaintiffs’ case in chief, the Court having found the plaintiffs had failed to sustain their burden of proof with respect to allegations of discrimination against them. The Court has now determined that defendant Allison is entitled to judgment as well. As detailed below the Court finds the evidence overwhelming in its support of Allison’s efforts to provide equal opportunity for minority and female employees throughout its operations. The record is replete with evidence of its efforts to comply with numerous governmental affirmative action requirements as well as Title VII. This Court finds it to be clear that Allison has in no way discriminated against any of these plaintiffs or against any members of the class they represent. I. RELEVANT EMPLOYMENT DECISIONS The record in this action is voluminous and includes evidence relating to the individual claims as well as statistical and other documentary information relative to Allison’s employment decisions from 1958 through 1977. It is necessary, therefore, to determine the time limitations relevant to this lawsuit under both Title VII of the Civil Rights Act of 1964 (Title VII), and 42 U.S.C. § 1981 (§ 1981) as to each individual and each class claim. TITLE VII Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974) sets two jurisdictional prerequisites to instituting an action under Title VII: (1) timely filing a charge of employment discrimination with the EEOC and (2) timely action upon receipt of the EEOC notice of right-to-sue. Id. at 47, 94 S.Ct. at 1019. The charge which Alexander requires must itself be filed with the EEOC within 180 days after the alleged unlawful employment practice occurred or 300 days thereafter if a charge has first been filed with a state agency. Though no direct allegation is made that charges were filed with the Indiana Civil Rights Commission, the Court takes notice of the limitation upon the EEOC in 42 U.S.C. § 2000e-5(c) which requires deferment to a state agency where one exists as it does in Indiana. The Court will therefore apply the 300 day requirement to each charge to determine the earliest date for which evidence may be reviewed in this action under Title VII. Application of this period to the individual claims is relatively simple, but discussion of the class claims requires a determination of which individual charges apply to which class claims in order to determine the earliest charge filed relative to each class. It is not necessary that each class member have filed a charge with the EEOC, Bowe v. Colgate Palmolive Co., 416 F.2d 711, 720 (7th Cir. 1969); however, only those who could have filed a charge at or after the time a charge was filed by the class representative can be included in the class. Wetzel v. Liberty Mutual Insurance Co., 508 F.2d 239, 246 (5th Cir. 1975), cert. denied, 421 U.S. 1011, 95 S.Ct. 2415, 44 L.Ed.2d 679 (1975); Coppotelli v. Howlett, 76 F.R.D. 20 (E.D. Ill. 1977). This is necessary to satisfy the notice requirement of the EEOA for the accused employer. Class membership as certified must, therefore, be redefined for purposes of decision. The applicable period of inquiry will commence 300 days prior to the earliest charge filed relevant to a particular class claim. The final issue to be resolved under Title VII’s application in this lawsuit is the effect of two efforts by Beulah M. Wallace to bring discrimination at Allison before various public agencies in 1965 and 1966. This issue is important not only to the individual claim of Mrs. Wallace but also the class claim for denial of promotion in hourly jobs on account of race and sex since that is the charge made in these efforts. Two requirements must be met in order to provide an avenue to the federal courts: A charge before the EEOC and the issuance of a right-to-sue letter. Alexander, supra 415 U.S, at 47, 94 S.Ct. at 1019. The defendant argues that neither requirement has been met. In regard to the 1965 activities of Mrs. Wallace no direct contact with the EEOC was shown. She testified that she had sent a copy of the complaint she filed with the Indiana Civil Rights Commission (ICRC) to the EEOC in Washington but no formal charge was ever made requesting action by the EEOC. Forwarding a copy of a state complaint to the EEOC does not constitute filing a charge therewith. Moore v. Sunbeam Corp., 459 F.2d 811, 822 (7th Cir. 1972). The ICRA determined no probable cause existed to suspect discrimination and took no further action. In 1966 Mrs. Wallace wrote directly to the EEOC to charge discrimination in regard to hourly promotions. Per statutory and regulatory requirements in effect at that time the EEOC referred the charge to the ICRA and notified Mrs. Wallace that if the state commission’s action was unsatisfactory she should re-contact the EEOC. The defendants contend that Mrs. Wallace’s failure to re-contact the EEOC in order to file a new charge precludes any action by this Court on the basis of the initial letter. The EEOC now has a procedure for holding a charge in abeyance until action by the state has terminated without requiring a new charge to be filed at that time. In the absence of such regulation in 1966 the defendants contend no such “abeyance” was permissible. The Supreme Court, however, in Love v. Pullman, 404 U.S. 522, 92 S.Ct. 616, 30 L.Ed.2d 679 (1972). recognized such a procedure where a 1966 letter, pre-dating Mrs. Wallace’s letter, was sent to the EEOC and referred to a state agency. “[W]e cannot agree with the respondent’s claim that the EEOC may not properly hold a complaint in ‘suspended animation’, automatically filing it upon termination of the state proceedings.” Id. at 526, 92 S.Ct. at 618. In Love the EEOC upon notice from the state that it would take no further action investigated the complaint, found probable cause, and was unsuccessful in its attempt to gain voluntary compliance. In the case before this Court it appears no further action was taken on Mrs. Wallace’s letter even though the ICRA referred the matter to the EEOC. There is no indication in the EEOC’s file relative to Mrs. Wallace, which was submitted into evidence by the plaintiffs, that any action was taken in regard to the 1966 letter or that any notice was given to Allison that a charge had been filed. A “complainant should not be made the innocent victim of a dereliction of statutory duty on the part of the Commission,” Choate v. Caterpillar Tractor Co., 402 F.2d 357, 361 (7th Cir. 1968). The EEOC had no real duty to act until it received a further charge from Mrs. Wallace; but this discussion indicates this Court should not too quickly allow technical errors to obscure the path of plaintiff’s recovery in this type of action. The Court will assume the 1966 letter can serve as a proper charge in this action and will proceed to consider the other prerequisite to a Title VII action, issuance of a right-to-sue letter by the EEOC. Mrs. Wallace received a right-to-sue letter on July 23, 1973 which included a designation of the five charges to which it related. These charge numbers relate to charges filed by Mrs. Wallace from 1970-1972, but make no reference to either of her earlier claims. Gibson v. Kroger Co., 506 F.2d 647, 652 (7th Cir. 1974), cert. denied 421 U.S. 914, 95 S.Ct. 1571, 43 L.Ed.2d 779 (1975), following Stebbins v. Continental Insurance Co., 442 F.2d 843 (D.C.Cir.1971), held that a plaintiff had a duty to seek a right-to-sue letter from the EEOC in the absence of “special circumstances which might have made it a hardship.” There is no evidence in the record suggesting Mrs. Wallace sought such a letter or that doing so would have caused her any hardship. Further, neither the complaint nor the amended complaint indicated the plaintiffs would assert the 1966 letter served as a charge which could provide jurisdiction to the court over events which occurred more than seven years prior to the commencement of this action. To allow the plaintiffs to avoid this prerequisite would not serve the overriding purpose of the EEOC of providing a means for private conciliation of such disputes and notice to the accused employer sufficient to enable it to preserve necessary records relevant to the charge. The Court, therefore, will disregard the 1965 and 1966 actions by Mrs. Wallace in its determination of the appropriate time period for review of the defendants’ actions under Title VII. 42 U.S.C. § 1981 Having determined the time period relevant to the Title VII claim it remains to be determined what period is relevant to the § 1981 claims and how that period might alter the overall scope of this action. It must first be noted that § 1981 applies only to discrimination on the basis of race and will not expand the time periods for purposes of the sex discrimination claims properly cognizable under Title VII. Runyon v. McCrary, 427 U.S. 160, 167, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1976). In determining which time period is appropriate for the race discrimination claims this Court must follow the mandate of the Supreme Court in Johnson v. Railway Express Agency, 421 U.S. 454, 462, 95 S.Ct. 1716, 1721, 44 L.Ed.2d 295 (1975): “Since there is no specifically stated or otherwise relevant federal statute of limitations for a cause of action under § 1981, the controlling period would ordinarily be the most appropriate one provided by state law.” In Runyon v. McCrary, 427 U.S. 160, 181, 96 S.Ct. 2586, 2600, 49 L.Ed.2d 415 (1976) the Court further stated: “In other situations in which a federal right has depended upon the interpretation of state law, ‘the Court has accepted the interpretation of state law in which the District Court and the Court of Appeals have concurred even if an examination of the state law issue without such guidance might have justified a different conclusion.’ ” These cases are cited in order to put into proper perspective the task before the Court. No reported decisions have been found indicating a resolution between the District Courts and the Court of Appeals in this circuit of which Indiana statutory period should apply to employment discrimination actions. The leading cases in this circuit determine the limitation to be applied in Illinois under that state’s statutory scheme. In those cases a five-year general statute has been applied in light of the Illinois court’s use of that statute for other statutory remedies where no specific statute of limitations is provided. Beard v. Robinson, 563 F.2d 331, 336 (7th Cir. 1977). In the absence of a similar interpretation as to the statutory remedies by an Indiana court, this Court is forced to choose between the Indiana general statute of limitations, similarly worded to Illinois’ five-year provision, and its tort statute. Though the Court of Appeals in this circuit has rejected the analogy between the tort cause of action and the employment discrimination suit, Teague v. Caterpillar Tractor Co., 566 F.2d 7, 8 (1977), that was in the context of the Illinois scheme where the alternative was a more workable five-year period. Here the only alternative to the two-year limitation for tort actions, I.C.1971 34-1-2-2, is the fifteen years allowed for “[Ajctions not limited by any other statute . . . .”, I.C.1971 34-1-2-3. This alternative may make the use of the tort period less undesirable. Such may have been implied by a recent opinion of the Court of Appeals in this circuit which, though striking down the use of the tort period in a suit against a public official in light of Indiana’s five-year provision dealing with that specific topic, recognized this Court’s application of the tort statute to an employment discrimination case. Sacks Brothers Loan Co. v. Cunningham, 578 F.2d 172, 176 n.13 (1978). Since the purpose of a statute of limitation is repose in the defendant, the distinction made there between an employment discrimination action and a suit against a government official does no violence to the desire expressed in Beard for a uniform statutory period within a state for civil rights actions. If a different period is applied on the basis of the type of defendant, potential defendants are on notice of the period which applies to them. If a distinction is allowed on the basis of the nature of the claim such defendants have different periods for different possible civil rights claims. Thus application of the tort statute here is consistent with the holdings in Sacks Brothers and Beard. On three previous occasions this Court has applied the Indiana tort statute to employment discrimination actions, Parrish v. Kroger, No. IP 77-460-C (November 17, 1977); Moreno v. Kroger, No. IP 76-417-C (November 19, 1976); Taylor v. Detroit Diesel Allison Division of General Motors, No. IP 76-472-C (August 14, 1978). This choice seems the more appropriate one for several reasons. First, the nature of this type of action is such that a heavy reliance must be placed upon the evaluation of subjective employment decisions. An employer must provide equal opportunities as to all its employees but in the absence of a preference for blacks or women (42 U.S.C. § 2000e-2(J)) the ultimate decisions are necessarily subjective and can only be reviewed where sufficient information exists. To apply a fifteen-year statute of limitations to a dispute requiring evidence of personal observations and evaluations places a difficult burden of production and proof on the parties. Particularly where, as here, the evidence on one side is likely to be more objectively observable than that on the other. Plaintiffs seek to raise the inference of discrimination from the use of statistical information while the defendants must rebut that inference through evidence of a nondiscriminatory purpose. Decision-makers change jobs, leave the company or otherwise become unavailable so that unless a burdensome record retention requirement is placed upon the employer necessary evidence will be unavailable as well. Second, in light of the choice which is before the Court between a relatively short period as opposed to the long general time period, it seems appropriate to note the statutory time periods provided for such civil rights actions in other contexts. The Indiana Civil Rights Law, I.C.1971 22-9-1, provides a ninety day period in which complaints may be filed with the Indiana Civil Rights Commission. I.C.1971 22 — 9-1—3(o). The Equal Employment Opportunity Act provides a 180 day period, 300 if filed with a state agency, to file a charge with the EEOC. Several Courts of Appeal have upheld similar periods for civil rights actions. See, Gonzalez v. Santiago, 550 F.2d 687 (1 Cir. 1977); Howell v. Cataldi, 464 F.2d 272 (3 Cir. 1972); Patterson v. American Tobacco Co., 535 F.2d 257 (4 Cir. 1976); Ingram v. Steven Robert Corp., 547 F.2d 1260 (5 Cir. 1977); Marlowe v. Fisher Body, 489 F.2d 1057 (6 Cir. 1973); Crosswhite v. Brown, 424 F.2d 495 (10 Cir. 1970). Finally though it can have no controlling effect in this action it is worth note that in 1977 Indiana passed a new statute providing a two-year limitation for: “[A]ll actions relating to the terms, conditions, and privileges of employment.” I.C. 34-1-2-1.5. This statute indicates the intent of the Indiana legislature that a relatively short period is appropriate in actions relating to employment decisions. Finally, the Court notes the application of a two-year limitation to this action will limit the plaintiffs’ § 1981 claim to actions occurring after August 23, 1971. The EEOA limits noted above will allow an earlier time period as to some of the claims thus mitigating the shorter period somewhat. More importantly there was very little evidence offered by plaintiffs relative to periods prior to 1970. Any finding relative to that period would be difficult due to the plaintiffs’ failure to provide adequate information, thus there would seem to be little harm from this Court’s decision to apply the two-year tort limitation found in the Indiana Code. Employment Decisions Prior to the Limitations Period “A discriminatory act which is not made the basis for a timely charge is the legal equivalent of a discriminatory act which occurred before the statute was passed. It may constitute relevant background evidence in a proceeding in which the status of a current practice is at issue, but separately considered, it is merely an unfortunate event in history which has no present legal consequences.” United Airlines, Inc. v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 1889, 52 L.Ed.2d 571 (1977). This citation indicates the Court must find that discriminatory conduct on the part of the defendants took place subsequent to the statutory periods determined as outlined above. In reviewing the evidence of discrimination it is therefore necessary to determine when the underlying employment decisions were made in order to limit the Court’s determination to only those employment decisions relevant under the statutory limitations outlined above. II. CLASS CERTIFICATION On November 14, 1977, this Court certified five class claims for adjudication in this action allowing plaintiffs to represent all black employees and all female employees of Allison who were employed on July 2, 1965, or at any time thereafter, or who may be employed in the future, who have been or may be adversely affected by discrimination against black and female employees in assignments to jobs, by discrimination against black and female employees in selection for the EIT training program, by discrimination against black and female employees in promotions to the position of group leader, by discrimination against black and female employees in the denial of job transfer and advancement through the operation of the seniority system, and by discrimination against black and female salaried employees in promotions. Rule 23(a) of the Federal Rules of Civil Procedure provides four prerequisites to a class action: “(1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.” The issue of joinder in this action'was obvious from the beginning in light of the size of Allison’s operation. The plaintiff demonstrated the potential size of the putative class through statistics showing the number of black employees in the hourly work force who may have been affected by discrimination in job assignment, promotion or other form of advancement. The question of commonality of issues was raised by the defendant in its brief in opposition to class certification on the basis of the diversity of the class claims. Though not accompanied by a motion to sever the various class claims the defendants, in effect, sought to question the joinder of these individual claims under Rule 20. through this objection to class certification. Thompson v. Board of Education of Romeo Community Schools, 71 F.R.D. 398, 412 (W.D. Mich. 1976) held that Rules 20 and 23 are exclusive of one another so that satisfaction of one in a given situation will obviate the need to discuss the other. That case did not involve multiple class claims, however, so that the question in this action seems to be unique. Rule 23 speaks in terms of “questions of law or fact common to the class” which was satisfied in this action as to the individual class members within each class in terms of the type of discrimination alleged and the nature of the evidence presented; but Rule 20 speaks in terms of “the same transaction, occurrence, or series of transactions or occurrences” in addition to commonality of law or fact. It has been held that this provision affords the District Court great discretion in determining the scope of a civil action. Mosely v. General Motors Corp., 497 F.2d 1330, 1332 (8th Cir. 1974). Here the claims are based upon voluminous evidence of a statistical nature which places a heavy burden on individual plaintiffs to present their case and upon the defendants to analyze and rebut it. In light of these burdens the Court finds joinder is proper in this type of action in order to allow the two sides to fully express their position on the principal underlying issue of discrimination. In light of the requirement that the claims of the representative plaintiffs are typical of the claims of the class the Court found it necessary to reduce the number of separate class claims. In Jenkins v. Blue Cross Mutual Hospital Insurance, Inc., 522 F.2d 1235 (7th Cir. 1975), reheard en banc, 538 F.2d 164 (1976), cert. denied, 429 U.S. 986, 97 S.Ct. 506, 50 L.Ed.2d 598 (1976), the Court held that class claims under Title VII or 42 U.S.C. § 1981 can only be brought by one who has suffered the same injury which is alleged to have been suffered by the class. “We agree with the district court, however, that the failure of the plaintiff to allege sex discrimination in her charge before the EEOC precludes her from raising the issue in this proceeding.” Id. at 1239. “The plaintiff must be a member of the class which she seeks to represent (under § 1981) with sufficient interest in the outcome to assure that she will adequately and fairly represent the class.” Id. at 1240. Here in reviewing the charges before the EEOC the Court found that none had been filed with respect to five of the plaintiffs’ claims: discrimination against females in hiring, discrimination against blacks in the hiring of salaried employees in the selection of foreman, general foreman, and superintendents, discrimination against black and female employees and applicants in the application of educational criteria for selection into salaried positions, and discrimination against black and female employees in salaried income. A review of the plaintiffs’ individual claims in the complaint and at trial also reveals no allegation of discrimination in any of these forms. The Court further notes at this time that the classes relative to discrimination in salaried job assignment, promotion of salaried employees and promotion of hourly employees to the Employees in Training Program must be limited to black employees due to the lack of any EEOC charge relative to sex discrimination and the inapplicability of § 1981 to such claims. The only charge to the EEOC by a salaried employee was made by Delores H. Dungey on December 10, 1971. The defendants assert this charge does not raise issues of sex discrimination and therefore cannot support a class claim on that issue. Of particular interest in this area is Jenkins v. Blue Cross, 538 F.2d 164 (7th Cir. 1976), cert. denied, 429 U.S. 986, 97 S.Ct. 506, 50 L.Ed.2d 598 (1976). There as here a charge was filed by a black woman but only the “Race or Color” box was checked on the form to indicate the type of discrimination asserted. The Court there held such formality to be insufficient to bar a sex discrimination claim and proceeded to analyze the description of the claim to find any indication that sex discrimination was also alleged. Id. at 167. Applying a similar scrutiny to the charge filed by Mrs. Dungey, it is apparent her claim only goes to racial discrimination. “Denied job promotions which were given to white woman,” is the opening claim and the entire discussion suggests only a denial of job assignments and promotions because of her race. The July 31, 1972 charge of Beulah Wallace relative to promotion and advancement of black hourly employees suffers a similar limitation as that of Mrs. Dungey. No allegation of sex discrimination is contained therein and its wording clearly limits its application to claims of racial discrimination. In addition the class including black and female hourly employees who suffered discrimination in initial job placement must be dismissed due to lack of a class representative. It was argued at the time of class certification that Beulah Wallace, through her July 31, 1972 charge to the EEOC, provided a representative for this class. In reviewing that charge the Court can find no claim of discrimination in initial placement. Further the Court finds that even if such a claim is made it is improper as an EEOC charge given the longevity of service of this plaintiff with Allison. In 1972 she had been employed by Allison for twenty-eight years and had been promoted from her initial job assignment nine years earlier. Any wrong which may have occurred in her initial assignment pre-dated the EEOC and the limitations period applicable to this action. A review of all other named plaintiffs leads to the same result. None filed a charge with the EEOC