Dent v. St. Louis-San Francisco Railway Company

• Decision Date: 10 March 1967
• Docket Number: Civ. A. No. 66-65.
• Citation: 265 F. Supp. 56
• Parties: James C. DENT, Plaintiff, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY et al., Defendants, Equal Employment Opportunity Commission, Intervenor.
• Court: U.S. District Court — Northern District of Alabama

265 F. Supp. 56

James C. DENT, Plaintiff, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY et al., Defendants, Equal Employment Opportunity Commission, Intervenor.

Civ. A. No. 66-65.

United States District Court N. D. Alabama, S. D.

March 10, 1967.

Oscar W. Adams, Jr., Birmingham, Ala., and Jack Greenberg and Leroy Clark, New York City, for plaintiff.

Nicholas deB. Katzenbach, Atty. Gen., St. John Barrett, John Doar, Asst. Attys. Gen., and Charles T. Duncan, Gen. Counsel, EEOC, Washington, D. C., and Macon L. Weaver, U. S. Atty., Birmingham, Ala., for intervening plaintiff.

Mulholland, Hickey & Lyman, Toledo, Ohio, and Jerome A. Cooper, of Cooper, Mitch, Johnston & Crawford, Birmingham, Ala., for defendants, St. Louis-San Francisco Ry. Co., Carmen, and Local 60.

Drayton T. Scott, William F. Gardner and Paul R. Moody, of Cabaniss, Johnston, Gardner & Clark, Birmingham, Ala., for defendant St. Louis-San Francisco Ry. Co.

OPINION

LYNNE, Chief Judge.

Invoking the provisions of Title VII of the Civil Rights Act of 1964,¹ the plaintiff has brought this action against his employer and his collective bargaining representative alleging racial discrimination in terms and conditions of employment against himself and the class which he claims to represent in this suit.

By Motions to dismiss, the jurisdiction of the court and the plaintiff's right to maintain the action in its present posture have been brought into question. The Equal Employment Opportunity Commission in turn responded with its petition to intervene for the purpose of presenting its views regarding the questions raised by the motions. The court granted its petition and has welcomed the benefit of its views.

One of the questions before the court concerns the necessity of the plaintiff first pursuing remedies available under the collective bargaining agreement or before the National Railroad Adjustment Board. The court agrees with the position, taken by the plaintiff and the Commission, that the principle of Republic Steel Corp. v. Maddox² should not be applied to actions brought under Title VII of the Act and therefore holds that remedies under the collective bargaining agreement or before the Adjustment Board need not be pursued prior to the institution of an action under this title.³

A second question before the court is whether the suit was timely filed. Pointing to the fact that section 706 provides a 60 day period for the investigation and conciliation functions of the Commission and a 30 day period for the filing of suit, the defendants have argued that this establishes a period of 90 days from the filing of the charge within which suit must be instituted in order to be timely. However, the court agrees with the plaintiff and the Commission that the 60 day time period provided for the investigation and conciliation of charges is properly to be accorded a directory rather than a mandatory construction and that the Commission is not required to undertake conciliation of charges within the 60 day period in order for a civil action based on the charge to be timely filed thereafter.

There remains the fact that this action, as well as several similar suits under Title VII pending in this court,⁴ were instituted without there having been any conciliation efforts by the Commission, either within or beyond the 60 day period. The court is therefore faced with the critical issue as to whether it is a prerequisite to the institution of a civil action under Title VII that there be compliance by the Commission with the direction of section 706(a) that it "shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion."

The court has devoted the most careful and studied consideration to the resolution of this issue. It has in this study had the benefit of complete and exhaustive briefs, both original and supplemental; the issue has been argued orally as well, and the court has independently researched all available pertinent material. Having done so, the court is firmly of the opinion that conciliation was intended by Congress to be and is a jurisdictional prerequisite to the institution of a civil action under Title VII and that the actions instituted without this prerequisite must accordingly be dismissed.

I.

This is the only result which could be reached consistent with the congressional intent, for the legislative history establishes conclusively and beyond doubt that Congress intended that conciliation be preferred to coercion and that the conciliation step would be a prerequisite to the institution of a civil action under this title.

From the outset and continuously throughout the legislative process which produced this statute, emphasis was placed on the conciliation step and on the fact that enforcement proceedings would not be initiated without an effort having been made to resolve the matter through conciliation.

At an early day in this legislative history, the Report of the House Education and Labor Committee on the bill providing for adjudication by the Commission stated that "It is the intent of the Committee that maximum efforts be concentrated on informal and voluntary methods of eliminating unlawful employment practices before commencing formal procedures" and that "Formal proceedings leading toward an order of the Commission should be pursued only when informal methods fail or appear futile."⁵

The bill reported by the House Judiciary Committee, providing for adjudication by the district courts, was explained in equally emphatic terms as requiring conciliation before the institution of the civil action.⁶

Moreover, while the bill originally contained a clause which would have permitted the institution of a civil action "in advance" of conciliation,⁷ this clause was eliminated from the bill through amendment in the House for the express purpose of insuring that civil actions would not be brought until there had been conciliation.⁸

The explanations for the deletion of the "in advance thereof" clause can permit of no question concerning this intent. The amendment to delete the clause was offered by Representative Celler, who not only introduced the bill but was Chairman of the Judiciary Committee which reported it as well, and he explained that "the language is stricken out to make certain that there will be a resort by the Commission to conciliatory efforts before it resorts to a court for enforcement."⁹

II.

It is conceded, as necessarily it must be, that "the effect of deleting the clause was to make Commission-initiated conciliation a condition precedent to the Commission's right to bring suit."¹⁰ Instead, the court is asked to distinguish this chapter of the legislative history on the theory that the Dirksen compromise measure,¹¹ in substituting the "person aggrieved" for the Commission as the party authorized to bring the civil action, eliminated the conciliation step as a prerequisite to the institution of the action.

The court cannot agree, for the adoption of this argument would be entirely contrary to logic and to the legislative intent regarding the procedure under the Dirksen compromise.

This measure was not only a compromise in terms and effect but was as well described as "a further softening of the enforcement provisions of Title VII"¹² and as placing "greater emphasis * * * on arbitration and voluntary compliance than there was in the House bill."¹³ It would therefore be most anomalous and contrary to logic to construe this measure as permitting the institution of a civil action without conciliation and thus as providing less protection to potential defendants and as placing less emphasis on voluntary compliance than did the House bill.

Such a construction would require an equally patent disregard for the fact that the procedure under the compromise was explained, just as was the House bill, as authorizing the institution of the civil action only after conciliatory efforts by the Commission.

This intent was once again emphasized. For example, it was explained that by the conciliation step, "we have leaned over backward in seeking to protect the possible defendants",¹⁴ that "If efforts to secure voluntary compliance fail, the person complaining of discrimination may seek relief in a federal district court",¹⁵ and that "The point of view of this section is to permit one who believes he has a valid complaint to have it studied by the Commission and settled through conciliation if possible. The court procedure can follow."¹⁶

It was further explained in a similar vein that "If the procedures before the Commission are unsuccessful the complainant may seek relief in the federal courts", that "Section 706(e) provides for suit by the person aggrieved after conciliation has failed", that "those of us who have worked upon the substitute package have sought to simplify the administration of the bill * * * in terms of seeking a solution by mediation of disputes, rather than forcing every case before the Commission or into a court of law", and that "We have placed emphasis on voluntary conciliation—not coercion."¹⁷

To incorporate all the expressions of legislative intent which the court has reviewed would unduly extend this opinion. It is enough to say that this sampling provides ample illustration of the unmistakable congressional intent that conciliation efforts would be a prerequisite to the institution of a civil action and, by so doing, to achieve the ends of protecting charged parties against being brought into court without the opportunity to resolve the matter through conciliation and of promoting voluntary compliance in perference to coercion. To hold otherwise would be to sterilize and disregard the clear intent of the Congress which enacted this statute.¹⁸

III.

The plaintiff and the Commission have urged the view that the bypassing of the conciliation step should be disregarded because "the EEOC received a large number of complaints...