Culpepper v. Reynolds Metals Company

Citation296 F. Supp. 1232
Decision Date17 January 1969
Docket NumberCiv. A. No. 12179.
PartiesSamuel CULPEPPER, Plaintiff, v. REYNOLDS METALS COMPANY, Defendant.
CourtUnited States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia

Howard Moore, Jr., Peter Rindskopf, Atlanta, Ga., Jack Greenberg, Gabrielle Kirk, New York City, for plaintiff.

William Pate, Mitchell, Clarke, Pate & Anderson, Atlanta, Ga., Fred R. Edney, Asst. Gen. Counsel, Richmond, Va., for defendant Reynolds Metals Co.

Charles W. Wilson, David W. Zugschwerdt, Washington, D. C., for the Equal Employment Opportunity Commission.

SIDNEY O. SMITH, Jr., Chief Judge.

This is a fair employment practices case proceeding under Title VII of the Civil Rights Act of 1964. 42 U.S.C.A. 2000e ff. The petition as finally amended set out an individual complaint and a class-type complaint against the defendant employer. In addition, the petition seeks immediate injunctive relief. The defendant disputes any right to temporary injunctive relief under the Act, relies on jurisdictional defenses as well as the merits, and has further demanded a jury trial on the issues. To facilitate a ruling on the legal questions involved, the court heard all of the evidence.

Insofar as is necessary to reach the points raised, the dispute arises out of the following facts:

Samuel Culpepper, a 48 year old Negro was originally employed at defendant's Atlanta "Colorweld" plant (formerly Southern Iron & Roofing Co.) in 1955. The plant is primarily concerned with the cutting, shaping, and painting of aluminum siding produced by its Alabama plant and is the final processing before delivery to the customer. The plant is divided into three main departments: receiving, fabrication, and painting. Culpepper's entering job was in receiving. He later moved into fabrication and is now qualified as a "machine operator" at $2.62 per hour. This job classification is the highest wage rate within the fabrication department other than a single slitter operator, which carries 15¢ per hour more.

This is a union-plant and has been since 1956. By virtue of present and prior agreements between defendant and the International Brotherhood of Firemen & Oilers, each employee holds "plant seniority" (petitioner is 8th) and "departmental seniority" (petitioner is 5th). On job openings, the filling is based on the principles of "qualifications and seniority." Each new job or vacancy in an existing job is posted or bulletined by management for the period of 24-hours and interested employees bid the job by signing the bulletin. Priority for the job opening is based first on departmental seniority. Failure of an applicant with departmental seniority to qualify opens the bid to employees in other departments based on plant seniority. The senior bidder is granted a 20-day trial period. If he successfully completes the trial period (apparently in the judgment of management), he is deemed qualified and promoted. If not, the next senior bidder is granted a trial period and similarly until a bidder is qualified.

As stated, the only job within the fabrication department higher than that presently held by Culpepper is that of slitter operator. The slitter machine is a cutting device which must be set up to cut to thousandths of an inch and length as ordered. The skill involved relates to a translation of an order to the machine by attaching spacers (down to 1/64" in size) and shims (down to .001" in size) between the cutting knives. While interpolating charts are available to the operator for the ordinary requirements, a facility with figures and mathematics is almost mandatory for a good operator to make the necessary "set ups" for each order, some of which require as much as two hours. Normally, job applicants for slitter operator come from helpers, who have assisted in and about the machine along with the other duties of laborers over a period of time.

Culpepper unsuccessfully bid the job first in the fall of 1962, it going to a white junior employee. In April, 1963, he successfully bid the job and was granted the 20-day trial period in May and June. Inasmuch as he had filed a grievance about the 1962 bid he was granted an additional 10-day trial period not required by the contract in July. Based upon performance figures, indicating approximately a 25% production record as compared with an established operator, he was deemed not qualified in 1963, and the job went to another white employee, Sells.

On December 29, 1964, the job was posted again, but Culpepper did not bid because it involved night work.

On March 20, 1967, the job of "relief slitter operator" was posted. This opening was to qualify in order to serve as slitter operator for the regular employee during vacations, absences, and, in this instance, union contract negotiations. Petitioner and two white employees bid the job, with Culpepper holding seniority based on the union contract. In spite of the seniority, the job was awarded to Arthur Collins on March 28, 1967. Collins immediately began his trial period and subsequently qualified on the machine.

Under the union contract, Culpepper pursued his grievance procedure by filing his complaint on April 4, 1967. Following the prescribed course, of charges, meetings, etc., management issued its formal reply on May 5, 1967, in which it offered a 90-day position as slitter helper at helper's rates with opportunity to bid on the next opening. This offer was refused inasmuch as it involved a pay reduction for the 90-day period. Management's position was that Culpepper had been given the prior trial in 1963 and deemed not qualified. This was likewise the position of Collins, who would have grieved any refusal to award him the job on the same basis, namely, that Culpepper had failed in the prior opportunity.

On July 15, 1967, Culpepper filed his formal charge with the Equal Employment Opportunity Commission as provided by the Act. 42 U.S.C.A. § 2000e-5(a). Following conciliation procedures a suit letter was issued to Culpepper on September 26, 1968, and this action was filed within 30 days thereafter. 42 U.S.C.A. § 2000e-5(e).

Under the pleadings and this state of facts, the case presents three central questions:

1. Does the court have jurisdiction?
2. If so, may a temporary injunction issue in such cases?
3. Is defendant entitled to a jury trial?

I. JURISDICTIONAL QUESTIONS.

The Act provides that an unfair employment charge be filed within ninety days after the alleged unlawful practice occurs. 42 U.S.C.A. § 2000e-5. This court has consistently held along with the majority of the other district courts that this 90-day period is jurisdictional and constitutes in effect a limitation by Congress on the right to proceed before the Equal Employment Opportunity Commission or in a subsequent suit in district court. See Georgia Power Co. v. EEOC, 295 F.Supp. 950 (N.D.Ga., August, 1968); Bowe v. Colgate-Palmolive Co., 272 F.Supp. 332 (D.Ind.1967). However, if the alleged violation is deemed to be "continuing", the 90-day period is of little practical effect. See King v. Georgia Power Co., 295 F.Supp. 943 (N.D.Ga., August, 1968). Consequently, it is necessary to determine whether the failure by defendant to "award" the job on March 28, 1967, to petitioner is an isolated transaction or whether the entire circumstances involving the grievance procedure, etc. are continuing in nature.

The court concludes that the failure by the company to award the job on March 28, 1967, was not continuing but was a completed act when effected. This is true because complainant's right to file a charge with Equal Employment Opportunity Commission accrued immediately, without regard to union contract, grievance procedure, or any unofficial reconsideration by management. There is no known authority to the effect that a failure to rectify an alleged unlawful act converts it into a continuing transaction or suspends the 90-day period.1

Standing alone, then, the act occurred on March 28, 1967, and the charge with Equal Employment Opportunity Commission was not filed until July 15, 1967, well in excess of the 90-day period. Such failure is normally jurisdictional and bars any further proceedings. Mickel v. S. C. State Employment Service, 377 F.2d 239 (4th Cir. 1967). However, petitioner argues and not without logic that the use of existing grievance procedures should be encouraged prior to placing the burden on Equal Employment Opportunity Commission or the courts. Despite the obvious appeal of this argument to those courts already facing an avalanche of fair employment cases, it is untenable. By inference, this court has already ruled that contractual grievance procedures need not be exhausted prior to the filing of an Equal Employment Opportunity Commission charge. See King v. Georgia Power Co., supra. Some employees have an opportunity for grievance procedures, some do not. The conclusion is that the law does not distinguish between the two in this respect. Those without such contractual benefits must file within 90-days; those with a union contract must likewise file within 90 days, without regard to whether they waive, ignore or concurrently pursue such benefits. There is no concern here with an "election of remedies." See Dewey v. Reynolds Metals Company, (W.D.Mich.1968), 291 F. Supp. 786. No such inconsistent remedies exist nor does the Act provide for any alternative procedure to that imposed here.2

Such holding does not end the problem, however. The petition as amended generally claims a maintenance by the company of a policy or practice of discrimination forbidden by the act. The right to proceed on a class basis in these cases has been heretofore granted by this court within appropriate limitations. See King v. Georgia Power Co., supra; Colbert v. H. K. Corporation, 295 F.Supp. 1091 (N.D.Ga. No. 11599, August, 1968). Any question about the general right to maintenance of a class action has been put to rest by Oatis v. Crown...

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