295 F.Supp. 943 (N.D.Ga. 1968), Civ. A. 11723, King v. Georgia Power Co.

Docket Nº:Civ. A. 11723
Citation:295 F.Supp. 943
Party Name:King v. Georgia Power Co.
Case Date:August 09, 1968
Court:United States District Courts, 11th Circuit, Northern District of Georgia
 
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Page 943

295 F.Supp. 943 (N.D.Ga. 1968)

Charles KING, Paul Brown, Sammie Lee Davenport, Ed Dulaney, and Rufus Mitchell

v.

GEORGIA POWER COMPANY and Local 84, International Brotherhood of Electrical Workers.

Civ. A. No. 11723.

United States District Court, N.D. Georgia

Aug. 9, 1968

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[Copyrighted Material Omitted]

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Isabel Gates Webster, Atlanta, Ga., Robert L. Carter and Robert F. Van Leirop, New York City, for plaintiffs.

William B. Paul, Constangy & Prowell, Atlanta, Ga., for Georgia Power Co.

Robert L. Mitchell, Bullock, Yancy & Mitchell, Atlanta, Ga., for Local 84, IBEW.

ORDER ON DEFENDANTS' MOTIONS TO DISMISS AN STRIKE

SIDNEY O. SMITH, Jr., Chief Judge.

This is a class action pursuant to 28 U.S.C. § 1343 wherein plaintiffs, employees of Georgia Power and members of Local 84, seek injunctive relief and damages under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The factual basis for plaintiffs claim of discrimination is allegedly as follows: (1) Plaintiffs are classified by Georgia Power out of the line of progression in all departments, restricting them to labor posts so as to limit their promotional opportunities. (2) Georgia Power administers tests and utilizes other promotion criteria which are not job-related and which are biased against Negroes. (3) Georgia Power maintains segregated comfort facilities. (4) Defendant, Local 84, contracts with Georgia Power for the maintenance of a promotion system that tends to limit the promotional opportunities of Negro laborers and further, Local 84 fails to fairly represent Negro employees. The named plaintiffs filed complaints with the EEOC on April 18, 1966, and June 6, 1966. Service of the charge upon defendants was made on June 20, 1966. On March 3, 1967, the EEOC found reasonable cause to believe that violations of the Act by defendants had occurred. On March 13, 1968, a suit letter was sent to each of the named plaintiffs informing them of their rights to file civil suits. The complaint in the instant case was filed on April 12, 1968.

Defendants have both filed motions to dismiss and/or strike on a number of different grounds. Their separate positions can be summarized as follows.

Georgia Power contends that this action should be dismissed because:

(1) the complaint was not filed within the time required by law, i.e., 90 days after the charge is filed with EEOC, and there is no allegation that the complaint was filed with EEOC within 90 days of the alleged unfair employment practices; (2) there is no allegation that a sworn charge was filed with EEOC; (3) the unlawful employment practices alleged in the complaint are not shown to be embraced within the scope of the prior charge before EEOC, i.e., defendant need not defend on matters outside the charges brought before EEOC; (4) this action may not be maintained as a class action. Finally, Georgia Power moves to strike Exhibit A, which is a copy of the decision of EEOC that reasonable cause existed to believe that Georgia Power had violated Title VII of the Civil Rights Act of 1964.

Defendant Local 84 makes its motion on the above grounds as well as the following:

(1) the complaint fails to set forth a claim against this defendant for the sole basis for such relief would arise out of an alleged contract negotiated by the Union and no copy of such contract is attached to the complaint; (2) the maintenance of a class action under these facts would deprive defendant of due process; (3) plaintiffs have failed to exhaust their contractual

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remedies; (4) injunctive relief is forbidden by Norris-LaGuardia.

The Equal Employment Opportunity Commission applied for and is hereby granted leave to file its briefs as amicus curiae on the questions raised by defendants' motions to dismiss.

TIMELINESS OF COMPLAINT

The Court can not agree with defendants' position as to the time periods for bringing actions under this Title. While a very small number of courts have agreed with defendants' position, see, e.g., Miller v. International Paper Co., 290 F.Supp. 401 (Nov. 9, 1967, S.D.Miss.) (this decision by Judge Cox is now before the 5th Circuit, Case No. 25,616); Cunningham v. Litton Industries, 56 L C § 9078 (September, 1967, C.D.Calif.), the weight of authority is that the 60-day period, for the investigatory and conciliatory functions of the Commission, is to be accorded a directory rather than a mandatory construction and therefore the crucial requirement is that the civil suit be brought within 30 days of receipt of the suit letter. See, e.g., Mondy v. Crown Zellerbach Corp., 271 F.Supp. 258 (E.D.La.1967); Dent v. St. Louis-San Francisco Ry. Co., 265 F.Supp. 56 (N.D.Ala.1967). The failure to allege that the complaint was filed with the EEOC within 90 days of the alleged unfair employment practices is...

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