346 F.Supp. 1012 (D.Colo. 1971), Civ. A. C-2476, Alexander v. Gardner-Denver Co.

Docket Nº:Civ. A. C-2476
Citation:346 F.Supp. 1012
Party Name:Alexander v. Gardner-Denver Co.
Case Date:July 07, 1971
Court:United States District Courts, 10th Circuit, District of Colorado
 
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Page 1012

346 F.Supp. 1012 (D.Colo. 1971)

Harrell ALEXANDER, Plaintiff,

v.

GARDNER-DENVER COMPANY, Defendant.

Civ. A. No. C-2476.

United States District Court, D. Colorado.

July 7, 1971

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Henry V. Ellwood, III, Denver, Colo., for plaintiff.

Robert G. Good, Denver, Colo., for defendant.

MEMORANDUM OPINION AND ORDER

WINNER, District Judge.

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

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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, "that the grievant was discharged for just cause. Consequently, his grievance is denied." 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:

"Racial discrimination in employment is one of the most deplorable forms of discrimination known to our society, for it deals not with just an individual's sharing in the 'outer benefits' of being an American citizen, but rather the ability to provide decently for one's family in a job or profession for which he qualifies and chooses. Title VII

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of the 1964 Civil Rights Act provides us with a clear mandate from Congress that no longer will the United States tolerate this form of discrimination. It is, therefore, the duty of the courts to make sure that the Act works, and the intent of Congress is not hampered by a combination of a strict construction of the statute and a battle with semantics.

"This court has held many times that Title VII should receive a liberal construction while at all times bearing in mind that the central theme of Title VII is 'private settlement' as an effective end to employment discrimination. In Oatis v. Crown Zellerbach (5 Cir., 1968) 398 F.2d 496, this court held that:

"'It is thus clear that there is great emphasis in Title VII on private settlement and the elimination of unfair practices without litigation."

"This view was again voiced in Jenkins v. United Gas Corporation (5 Cir., 1969) 400 F.2d 28, where this court stated that:

"'*** EEOC whose function is to effectuate the Act's policy of voluntary conference, persuasion and conciliation as the principal tools of enforcement.'

"It would, therefore, be an improper reading of the purpose of Title VII if we were to construe the statute as did the district court to permit the short statute of limitations to penalize a common employee, who, at no time resting on his rights, attempts first in good faith to reach a private settlement without litigation in the elimination of what he believes to be an unfair, as well as an unlawful, practice. We therefore, hold that the statute of limitations, which has been held to be a jurisdictional requirement, is tolled once an employee invokes his contractual grievance remedies in a constructive effort to seek a 'private settlement of his complaint.' Culpepper also sought to settle his complaint in 1963 through the grievance procedures. We do not think that Congress intended for a result which would require an employee, thoroughly familiar with the rules of the shop, to proceed solely with his Title VII remedies for fear that he will waive these remedies if he follows the rules of the shop or to do both simultaneously, thereby frustrating the grievance procedure."

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:

"In view of the dissimilarities between the contract grievance-arbitration process and the judicial process under Title VII, it would be fallacious to assume that an employee utilizing the grievance-arbitration machinery under the contract and also seeking a Title VII remedy in court is attempting to enforce a single right in two forums. We do not mean to imply that employer obligations having their origin in Title VII are not to be incorporated into the arbitral process. When possible they should be. See generally Gould, Labor Arbitration of Grievances Involving Racial Discrimination, 118 U.Pa.L.Rev. 40 (1969). But the arbitrator's determination under the contract has no effect upon the court's power to adjudicate a violation of Title VII rights.

"...

"Title VII outlaws certain forms of discrimination in employment. An important method for the fulfillment of congressional purpose is the utilization

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of private grievance-arbitration procedures. This comports not only with the national labor policy favoring arbitration as the means for the final adjustment of labor disputes, e. g., Boys Markets, Inc. v. Retail Clerk's Union, Local 770, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199, but also with the specific enforcement policy of Title VII that discrimination is better curtailed through voluntary compliance with the Act than through court orders. Congress, however, has made the federal judiciary, not the EEOC or the private arbitrator, the final arbiter of an individual's Title VII grievance. See Fekete v. United States Steel Corp., 3 Cir. 1970, 424 F.2d 331. The EEOC serves to encourage and...

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