408 F.2d 283 (5th Cir. 1969), 25616, Miller v. International Paper Co.

Docket Nº:25616.
Citation:408 F.2d 283
Party Name:James P. MILLER et al., Appellants, v. INTERNATIONAL PAPER COMPANY et al., Appellees.
Case Date:February 26, 1969
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 283

408 F.2d 283 (5th Cir. 1969)

James P. MILLER et al., Appellants,

v.

INTERNATIONAL PAPER COMPANY et al., Appellees.

No. 25616.

United States Court of Appeals, Fifth Circuit.

February 26, 1969

Page 284

Marian E. Wright, Jackson, Miss., Jack Greenberg, Gabrielle A. Kirk, New York City, James M. Nabrit, III, Robert Belton, New York City, Reuben V. Anderson, Paul A. Brest, Iris Brest, Jackson, Miss., for appellants; Albert J. Rosenthal, New York City, of counsel.

Dixon L. Pyles, Jackson, Miss., Robert F. Adams, Mobile, Ala., C. W. Ford, Pascagoula, Miss., Warren Woods, McInnis, Wilson, Munson & Woods, Washington, D.C., Benjamin Wyle, New York City, Louis Sherman, Sherman & Dunn, Washington, D.C., Pyles & Tucker, Jackson, Miss., for appellee, International Paper Co.; Johnstone, Adams, May, Howard & Hill, Mobile, Ala., Ford, Moore, Jones, Colmer & Schroeder, Pascagoula, Miss., of counsel.

Julia P. Cooper, Daniel Steiner, Gen. Counsel, Equal Employment Opportunity Commission, Washington, D.C., amicus curiae.

Before GEWIN and BELL, Circuit Judges, and BOOTLE, District Judge.

GEWIN, Circuit Judge:

The appellants in this case are five Negroes who are employed by the appellee International Paper Company. They brought suit in the District Court for the Northern District of Mississippi on behalf of themselves and others similarly situated against the company, four local unions and three international unions, 1 alleging racial discimination in violation of Title VII of the Civil Rights Act of 1964. 2 The district court entered summary judgment for the defendants-appellees on the grounds (1) that a class action could not be maintained on behalf of persons who have not filed charges with the Equal Employment Opportunity Commission and (2) that the suit had not been filed within the time permitted by the statute. 3 In addition, the district court assessed a penalty against the appellants in the amount of costs and the company's attorney's fees for failure of the appellants to appear on a certain day for the taking of depositions. We have determined that the summary judgment was erroneously granted and that the assessment of the penalty against the appellants was an abuse of discretion; accordingly, we reverse the judgment of the district court.

I

After having made vociferous and vigorous contentions in their briefs supporting the district court's class-action holding, the appellees conceded during oral argument that their position is now untenable under the holding in Oatis v. Crown Zellerbach Corp., 4 decided by this court subsequent to the decision below. We held in Oatis that membership in the class cannot be restricted to individuals who have filed charges with the EEOC prior to the institution of suit. 5 The

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district court here was apparently of the view that, since the filing of a charge with the EEOC is a jurisdictional prerequisite to filing suit, those individuals who had not filed charges with the EEOC could not be included in a class of persons who could properly file suit. Substantively, the district court's syllogism is inviolable. This court was quite clear in the Oatis case 6 and in Jenkins v. United Gas Corp. 7 that a complainant under Title VII cannot bypass the EEOC. The effect of a contrary holding would be virtually to eliminate the commission established by Congress to encourage fair employment practices. 8 The fallacy of the district court's reasoning is that the matter is primarily procedural rather than substantive and thus the question is one of simple expediency. In this posture, it is perfectly clear that no procedural purpose could be served by requiring scores of substantially identical grievances to be processed through the EEOC when a single charge would be sufficient to effectuate both the letter and the spirit of Title VII.

II

The district court held that, under section 706(e) of the Act, a charging party has sixty days after filing his charge with the EEOC to bring suit and, if he fails, 'the action and the right of action no longer exist, and the defendant is exempt from liability.' 9 The pertinent part of section 706(e) provides:

If within thirty days after a charge is filed with the Commission * * * (except that * * * such period may be extended to not more than sixty days upon a determination by the Commission that further efforts to secure voluntary compliance are warranted), the Commission has been unable to obtain voluntary compliance with this subchapter, the Commission shall so notify the person aggrieved and a civil action may, within thirty days thereafter, be brought against the respondent named in the charge * * *. 10

The appellants brought this suit in the district court some five and a half months after filing their charges with the EEOC. However, the suit was filed within thirty days after the EEOC notified the appellants that voluntary compliance had not been achieved.

Since by the explicit terms of section 706(e) the EEOC has up to sixty days to attempt conciliation, the limitation period applicable to the complainant could in no event be sixty days after the filing of charges with the EEOC. By stacking the thirty-day post-notice period on top of the sixty-day conciliation period it would not be completely unreasonable to argue that the applicable limitation period is ninety days from the filing of the charges. But even that construction is untenable. Suppose, for example, a party files a charge with the EEOC and the latter, after holding the charge for exactly sixty days, mails notice of failure to effect voluntary compliance; the charging party receives the notice two days after mailing and then on the thirtieth day thereafter files suit in the district court. Here, every term of the statutory provision has been complied with and yet, is the aggregated periods fixed the time

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within which suit must be filed, the charging party would be two days too late. This logical discrepancy is a clear portent that the two time periods provided in section 706(e) were not intended to apply as an aggregation. 11

We do not quarrel with the appellee-company's contention that, 'where rights asserted in a court are statutory in nature, compliance with the statute is a prerequisite to the commencement of a civil action based thereon.' However, the difficulty with the proposition is that it assumes the answer to the question before the court. The issue is whether section 706(e) requires the charging parties to bring an action in the district court within a fixed period of time after filing their charges with the EEOC. On this issue, the company has made no enlightening observations but has merely extolled the limpid precision of a statute which we find to a large extent ambiguous.

The confusion concerning the time limitations seems to stem from the inclusion in section 706(e) of both a time limitation on the conciliation efforts of the EEOC and a time limitation on the charging party's right to file suit. The provision states that the EEOC has thirty days, or sixty days if needed, to attempt conciliation by informal means. It also provides that the charging party has thirty days within which to file suit after receiving notice from the EEOC that voluntary compliance has not been achieved. 12

Considering the genesis of Title VII, the difficulties inherent in section 706(e) are hardly surprising. The distant ancestor of the title was H.R. 405 which would have established a fair employment practices commission with both investigatory and enforcement powers. H.R. 405 was included as an amendment and substitute in H.R. 7152 by Subcommittee No. 4 of the House Judiciary Committee. When the latter bill reached the full committed, the proposed EEOC's enforcement powers were stripped away but, in return, it was given the power to institute civil actions on behalf of the charging party against the alleged discriminator. After passage in the House, H.R. 7152 was sent to the Senate Where, by the Mansfield-Dirksen amendments, the power to bring suit was taken from the EEOC and lodged exclusively in the charging party. 13

Section 707(b) of H.R. 7152, as drawn when it reached the Senate, gave the EEOC ninety days after receiving the charging party's complaint to file suit. However, the aggrieved party was not completely at the mercy of the EEOC

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because, under section 707(e), he could bring the suit himself even one member of the EEOC gave his permission. 14 Thus, up to this point in the legislative process, the limitation period applicable to investigation and enforcement was clear and uncomplicated. A serious wrinkle appeared in the legislative fabric, however, when the right to bring suit was vested exclusively in the charging party. The drafters of the bill appear simply to have allocated the first sixty days of the original ninety-day limitation period to the EEOC's conciliation efforts and the last thirty days to the grievant's right to file suit, without any consideration of the relationship between the two separate periods. Our problem here, therefore, is what John Chipman Gray would probably regard as a typical instance of statutory construction:

The fact is that the difficulties of socalled interpretation arise when the legislature has had no meaning at all; when the question which is raised on the statute never occurred to it; when what the judges have to do is, not to determine what the legislature did mean on a point which was present to its mind, but to guess what it would have intended on a point not present to its mind, if the point had been present. 15

Section 706(e) of the Act provides that notice of failure to conciliate shall be sent by the EEOC and 'within thirty days thereafter' the aggrieved person may file suit. It is clear from...

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