Jenkins v. United Gas Corporation

Decision Date25 September 1968
Docket NumberNo. 24555.,24555.
Citation400 F.2d 28
PartiesThomas L. JENKINS, Appellant, v. UNITED GAS CORPORATION and Allan B. Caldwell, Appellees.
CourtU.S. Court of Appeals — Fifth Circuit

Elmo R. Willard, III, Beaumont, Tex., Leroy D. Clark, Jack Greenberg, James M. Nabrit, III, Robert Belton, Thomas E. Woodhouse, Albert J. Rosenthal, New York City, for appellant.

Quentin Keith, Keith, Mehaffy & Weber, Beaumont, Tex., for appellees.

Before JOHN R. BROWN, Chief Judge, and BELL and THORNBERRY, Circuit Judges.

JOHN R. BROWN, Chief Judge:

This case is another of those now frequently coming to us1 under Title VII of the 1964 Civil Rights Act, 42 U.S. C.A. § 2000e et seq., forbidding discrimination in employment by reason of race, color, religion, sex, or national origin. At issue is the question whether the offer and acceptance of a promotion, subsequent to the filing of a class action alleging systematic racial discrimination renders the suit moot as to the employee individually or to the class he represents. We hold that the action is not moot on either score and therefore reverse and remand for a full hearing.

The problem arises from the unique structure of Title VII which limits access to the courts by conditioning the filing of suit upon a previous administrative charge with the EEOC2 whose function is to effectuate the Act's policy of voluntary conference, persuasion and conciliation as the principal tools of enforcement. The key to the courthouse door being the administrative charge, the door slams shut, the employer argued successfully below, when the specific job assignment claimed to have been denied the employee because of the employer's racial discrimination was offered to and accepted by the employee.

The Employee, Jenkins, is a Negro and was working for the Employer, United Gas Corporation, as a "serviceman's helper" at the time this action was commenced. In May 1965 Employee applied for promotion to the position of "serviceman." When an opening occurred in August 1965 it was filled by a white employee who was not, so Employee alleges, qualified according to Employer's own job specifications. Employee filed a charge with EEOC on November 4, 1965, complaining that he was refused the promotion because of his race. The investigation by EEOC substantiated the charge.3

But in keeping with the Act's short timetable EEOC gave notice (§ 706(e); 42 U.S.C.A. § 2000e-5(e)) that due to heavy workload, efforts at conciliation had not been undertaken and Employee was notified of his right (§ 706(e), (f); 42 U.S.C.A. § 2000e-5(e), (f)) to file suit in Federal District Court.

Employee, within the 30 days allowed, filed a class action alleging systematic racial discrimination which, tested against the applicable standard4 of how a complaint is to be read under F.R.Civ.P. 12(b) (6), was a model of specificity in plant-wide, system-wide racial discrimination which took its toll of Employee and his group principally in denial of promotion to the position of Serviceman.5 The prayer was equally specific and broad, seeking an injunction on behalf of Employee and his class, not only as to promotion to Servicemen but generally prohibiting Employer "from continuing or maintaining the policy, practice, custom and usage of denying, abridging, withholding, conditioning, limiting or otherwise interfering with the rights of plaintiff and others similarly situated to enjoy equal employment opportunity as secured by Title VII of the Act * * * without discrimination on the basis of race or color." It then ended with a prayer for back pay differential, and as a valuable unique adjunct of the Act (§ 706(k); 42 U.S. C.A. § 2000e-5(k)) the allowance of attorney's fees.

But within a few weeks Employer offered the coveted promotion to Serviceman, which Employee accepted one week later. Shortly, Employer moved to dismiss the action as moot since Employee was tendered and accepted promotion to Serviceman. Although the moving papers warranted the Judge to conclude that there was no dispute about the offer and acceptance of this individual promotion, the court without more — and without ever making any factual inquiry6 into the broad charges affecting others system-wide — entered an outright judgment of dismissal.7

Neither on the score of the action in Employee's own right or his representation of those in his class will this outcome jell. Like considerations bear on each claim and they start with the unusual structure of Title VII. Of course the legislative compromise changed the concept from an enforcing-adjudicatory administrative agency to one in which the agency would conciliate, leaving the ultimate, final sanction to be judicial enforcement. As a part of the scheme such judicial enforcement was to be initiated by and at the hands of individual working grievants.8

Although there are restrictions both in time and pre-conditions for court action this does not minimize the role of ostensibly private litigation in effectuating the congressional policies. To the contrary, this magnifies its importance while at the same time utilizing the powerful catalyst of conciliation through EEOC. The suit is therefore more than a private claim by the employee seeking the particular job which is at the bottom of the charge of unlawful discrimination filed with EEOC. When conciliation has failed — either outright or by reason of the expiration of the statutory time-table — that individual, often obscure, takes on the mantel of the sovereign. Newman v. Piggie Park Enterprises, 1968, 390 U.S. 400, 88 S.Ct. 964, 19 L. Ed.2d 1263; Oatis v. Crown Zellerbach, supra. And the charge itself is something more than the single claim that a particular job has been denied him. Rather it is necessarily a dual one: (1) a specific job, promotion, etc. has actually been denied, and (2) this was due to Title VII forbidden discrimination.

Considering that in this immediate field of labor relations what is small in principal is often large in principle,9 element (2) has extreme importance with heavy overtones of public interest. Whether in name or not, the suit is perforce a sort of class action for fellow employees similarly situated. Consequently, while we do not here hold that such a "private Attorney General"10 is powerless absent court approval to dismiss his suit, see F.R.Civ.P. 41(a) (2); the court, over the suitor's protest, may not do it for him without ever judicially resolving by appropriate means (summary judgment, trial, etc.) the controverted issue of employer unlawful discrimination.

In dollars Employee's claim for past due wages may be tiny. But before a Court as to which there is no jurisdictional minimum, (§ 706(f), 42 U.S.C.A. § 2000e-5(f)), it is enough on which to launch a full scale inquiry into the charged unlawful motivation in employment practices. It is even more so considering the prayer for injunction as a protection against a repetition of such conduct in the future.

With so much riding on the claim of the private suitor, the possibility that in this David-Goliath confrontation economic pressures will be at work toward acceptance of preferred post-suit jobs and the equal possibility that an employer would devise such a resist-and-withdraw tactic as a means of continuing its former ways calls for the trial court to keep consciously aware of time-tested principles particularly in the area of public law. Such actions in the face of litigation are equivocal in purpose, motive and permanence.11

The dismissal fares no better as to the class action. The Trial Judge's principal thesis on this score was "that no common question of fact exists as to all Negro employees of the defendant, since different circumstances surround their different jobs and qualifications in the structure of the corporation."12 To that Employer adds several more we find equally wanting. One is that there was no class since the other Negro apparently referred to in the administrative charge who was eligible for, but denied promotion to, Serviceman had likewise been promoted. There are at least two answers to that. First, this ignores element (2) of the claim — plant-wide system-wide racially discriminatory employment practices. Second, for the reasons pointed out at length Employee's personal claim is yet very much alive as to (a) back pay differential and (b) injunction protection against future repetition. The other supports urged by Employer are all wrapped up in its championing of Mondy v. Crown Zellerbach Corp., E.D. La.1967, 271 F.Supp. 258, which now falls before Oatis v. Crown Zellerbach, 5 Cir. 1968, 398 F.2d 496.

To Oatis we need only add a few comments. The holding that the nature of the claims asserted make it a 23(b) (2)13 class action was expressly recognized in the Advisory Committee's Note.14 And the Note's emphasis on declaratory, injunctive relief is easily satisfied by Title VII. See § 706(g), 42 U.S.C.A. § 2000e-5(g).

Indeed, if class-wide relief were not afforded expressly in any injunction or declaratory order issued in Employee's behalf, the result would be the incongruous one of the Court — a Federal Court, no less — itself being the instrument of racial discrimination, which brings to mind our rejection of like arguments and result in Potts v. Flax, 5 Cir., 1963, 313 F.2d 284, 289.15

Any effort to distinguish Oatis as Employer's brief undertook to do respecting Hall v. Werthan Bag Corp., supra, on the ground that interventions were involved is unavailing. Amended Rules 19, 23, and 24 are meant to, and do, dovetail in many respects. Atlantis Development Corp. v. United States, 5 Cir., 1967, 379 F.2d 818, 824-25. Meeting the test of the right to intervene, F.R. Civ.P. 24, intervention is actually superfluous if — and here there is no if, big or little — element (4) of 23(a) on the adequacy of the representation of the class is satisfied.

The reason given by the Trial Court (see text at note 12, supra)...

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