Alexander v. Gardner-Denver Company
Citation | 346 F. Supp. 1012 |
Decision Date | 07 July 1971 |
Docket Number | Civ. A. No. C-2476. |
Parties | Harrell ALEXANDER, Plaintiff, v. GARDNER-DENVER COMPANY, Defendant. |
Court | U.S. District Court — District of Colorado |
Henry V. Ellwood, III, Denver, Colo., for plaintiff.
Robert G. Good, Denver, Colo., for defendant.
Plaintiff's complaint charges a violation of Title VII of the Civil Rights Act. He says that he was discharged from his employment because "he was a member of the Negro race." After an arbitration held under a union contract (to be discussed later herein) he filed an appropriate complaint with the Equal Employment Opportunity Commission, and, on July 25, 1970, that Commission advised plaintiff that it found no probable cause for plaintiff's charge of discrimination. Enclosed with this advice was a form notifying plaintiff that he had 30 days within which to file suit in a United States District Court. On August 6, 1970, plaintiff filed in this Court, (1) an "Affidavit in support of Motion to Commence Action," and (2) a "Motion to Commence Action Without Payment of Fees and Costs." Acting on these ex parte documents, on August 6, 1970, Chief Judge Arraj entered an order permitting plaintiff to proceed in forma pauperis, appointing counsel for him and allowing 20 days within which to commence the action. The complaint in this Court was filed on August 25, 1970 more than 30 days after the letter from the EEOC but within the 20 days allowed by the Court. The case is now before the Court on defendant's summary judgment motion.
Defendant first asserts that the Court is without jurisdiction because the complaint was not filed within 30 days of the finding of lack of probable cause by the Equal Employment Opportunity Commission. Ordinarily, the 30-day time limit is jurisdictional, Goodman v. City Products Corp. (6 Cir.) 425 F.2d 702; Cunningham v. Litton Industries, (9 Cir.) 413 F.2d 887. However, here the Court accepted the plaintiff's documents for filing, and allowed him 20 days within which to file a complaint. Under these circumstances, the Court believes that plaintiff has complied with the 30-day time limit and that defendant's jurisdictional attack on this ground must fail.
Defendant next says that the Court is without jurisdiction because the Commission did not find reasonable cause to believe that plaintiff's charge was true. This contention was disposed of by Judge Chilson in Brown v. Frontier Airlines, Inc., (D.C.Colo.) 305 F. Supp. 827, and, "We agree and hold that a finding by the Commission, that there is reasonable cause to believe that the charge is true, is not a jurisdictional requirement for the maintenance of an action brought pursuant to Section 2000e-5(e), and that the finding by the Commission in this case that the facts do not constitute a violation of the Act does not deprive this Court of jurisdiction to judicially determine the plaintiff's claim."
With these preliminary questions disposed of, we come to the vital and troublesome issue in the case. Pursuant to the collective bargaining agreement between defendant and its employees, before filing his charges with the Equal Employment Opportunity Commission, plaintiff lodged a grievance under the labor contract. That grievance was arbitrated to Mr. Don W. Sears, the Dean of the University of Colorado Law School. After an evidentiary hearing the arbitrator made written findings and concluded, The arbitrator's findings do not discuss plaintiff's present assertion of racial discrimination, but Alexander's deposition taken in this case acknowledges that this charge was before the arbitrator, and, on this motion for summary judgment, that deposition has been considered by the Court.
The present posture of the case, then, is that the Commission did not find probable cause that plaintiff's charge of discrimination was true, and, with that same charge of racial discrimination before him, the Dean of the University of Colorado Law School, sitting as an arbitrator, found against plaintiff and found that he was discharged for just cause. We must decide just how many chances plaintiff should be afforded to try to establish his claim of discrimination. We have already held that his failure to convince the Commission that there was probable cause for his charge does not bar a Title VII action in this Court, and we must now decide whether submitting the matter to arbitration under the labor contract requires the entry of a summary judgment in defendant's favor.
There are two diametric lines of authority. In Culpepper v. Reynolds Metals Company (1970) (5 Cir.) 421 F.2d 888, the employee filed a grievance under the union contract. He thereafter sought help from the Equal Employment Opportunity Commission, and the employer claimed that the short statute of limitations created by 42 U.S.C. 2000e-5 had run. The Court held that the statute was tolled by the union grievance procedure, and said:
Hutchings v. United Industries, Inc. (1970) (5 Cir.) 428 F.2d 303, rules squarely that as a matter of public policy the federal courts cannot be divested of jurisdiction of a Title VII action by any arbitration procedure under a labor contract. Judge Ainsworth there ably sets forth the arguments in support of this view, and he points out that in a Title VII suit, the individual "takes on the mantle of the sovereign." The Court held that "the matters in dispute were subject to the concurrent jurisdiction of the federal courts under the scheme of Title VII and of the grievance-arbitration machinery established by the bargaining contract." It was held:
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