Carr v. Conoco Plastics, Inc., 27688.

• Decision Date: 12 June 1970
• Docket Number: No. 27688.,27688.
• Citation: 423 F.2d 57
• Parties: Grozelia CARR et al., Plaintiffs-Appellees, v. CONOCO PLASTICS, INC., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

423 F.2d 57 (1970)

Grozelia CARR et al., Plaintiffs-Appellees, v. CONOCO PLASTICS, INC., Defendant-Appellant.

No. 27688.

United States Court of Appeals, Fifth Circuit.

January 29, 1970.

Rehearing Denied and Rehearing Denied June 12, 1970.

Robert D. Patterson, Patterson, King & Lee, Aberdeen, Miss., Thomas D. Montgomery, Houston, Tex., for defendant-appellant.

Robert B. Fitzpatrick, Jackson, Miss., for plaintiffs-appellees.

H. L. Hutcherson, Jackson, Miss., for Mississippi State Employment Service.

Russell Specter, Acting Gen. Counsel, Julia Cooper, Gen. Atty., Charles L. Reischel, Marian Halley, Attys., E.E. O.C., for the United States Equal Employment Opportunity Commission as amicus curiae.

Before TUTTLE, WISDOM and GOLDBERG, Circuit Judges.

Rehearing Denied and Rehearing En Banc Denied June 12, 1970.

PER CURIAM:

We have carefully considered the grounds of appeal in this case in which the trial court for the Northern District of Mississippi overruled the defendant's motions in this Title VII¹ case to dismiss and to strike the allegations pertaining to the complaint as a class action.

Concluding, as we do, that the Findings of Fact and Conclusions of Law of the trial court admirably expound the principles of law and are well suited to stand as the opinion of this court in the much litigated field of law, we accept the Findings of Fact and Conclusions of Law, dated February 14, 1969 as the opinion of this court. 295 F.Supp. 1281. In order to have this opinion in ready reference form we have here annexed such judgment of the trial court to this opinion as Appendix A.

We add the following comment touching on the contention urged by the defendant-appellant that the class which the named plaintiffs claim to represent may include present employees of the defendant whose interests are adverse to those of the rest of the class of potential and present Negro employees. As to this, we think that Federal Rule of Civil Procedure 23(c) (4) adequately covers the situation. We think that if upon hearing on the merits it appears that persons who might otherwise be included in this "class" have an adverse interest to protect, the trial court can realign the parties. As stated by this court in Jenkins v. United Gas Corporation, 5 Cir., 1968, 400 F.2d 28 at 35:

"And finally, as Oatis Oatis v. Crown Zellerbach Corp., 5 Cir., 398 F.2d 496 makes clear in its reference to sub-classes, the Court under F.R. Civ.P. 23 has the duty, and ample powers, both in the conduct of the trial and relief granted to treat common things in common and to distinguish the distinguishable."

The interlocutory orders of the trial court are affirmed.

APPENDIX A

ORDER GRANTING SUBSTITUTION

(Number and Title Omitted) (Filed )

This cause came for hearing in the Federal District Court House in Oxford, Mississippi on January 22, 1969. Certain motions were agreed upon by counsel for the plaintiffs and counsel for the defendants. It is, therefore,

ORDERED:

1. That the motion to substitute Conoco Plastics, Inc. as the party defendant for Monroe Manufacturing Company is hereby granted. The clerk of the Court will make the substitution on the record file.

2. That the motion to file an amended complaint is hereby granted.

THIS THE 23 day of January, 1969 s/ORMA R. SMITH ORMA R. SMITH District Judge

FINDINGS OF FACT AND CONCLUSIONS OF LAW

(Number and Title Omitted)

(Filed Feb. 14, 1969)

This action is brought by plaintiffs pursuant to the authority of Title VII of the Civil Rights Act of 1964¹ to enjoin unlawful employment practices on the part of defendants against plaintiffs and all other persons similarly situated. Jurisdiction of the Court is invoked pursuant to the provisions of the act² and Title 28 U.S.C. § 1343.

FINDINGS OF FACT

Plaintiffs are adult Negro citizens of the United States and residents of the Aberdeen Division of the United States District Court for the Northern District of Mississippi.

Plaintiffs bring this action on their own behalf and on behalf of other Negroes similarly situated, pursuant to Rule 23 of the Federal Rules of Civil Procedure.

Defendant Conoco Plastics, Inc. is engaged in the operation of an industry affecting commerce and is an employer within the meaning of the Civil Rights Act of 1964.

Defendant Aldridge is Chairman of MESC,³ which administers the Mississippi State Employment Service, an employment agency as defined in 42 U.S.C. § 2000e(c). Defendant Wooten is MESC's manager at its office in Aberdeen, Mississippi, and is responsible for the administration of MESC's job classification and referral program in Monroe County, Mississippi.

On March 5, 1968, plaintiffs filed sworn charges with the EEOC⁴ alleging violation by defendant company and MESC of rights protected by the act.

There is no controversy as to the sufficiency of the charges described in the complaint and set forth in the affidavits filed by plaintiffs with EEOC.

On August 20, 1968, the defendant company received from the New Orleans office of EEOC copies of the charges made and filed with it by plaintiffs, each being dated March 2, 1968, and marked "received" by the New Orleans Office of EEOC on March 5, 1968. Similar copies were received by defendant Wooten at his Aberdeen office on August 23, 1968, and forwarded to defendant Aldridge, who received them at his Jackson, Mississippi office on August 24, 1968.

On September 10, 1968, EEOC notified each plaintiff by certified mail that the Commission had been unable to achieve voluntary compliance with Title VII of the Civil Rights Act of 1964.⁵ This action was filed October 9, 1968.

EEOC did not take any action after receiving the complaints, before the filing of this suit, except to send copies of the charges to defendants and to write letters to plaintiffs as aforementioned.

THE MOTIONS TO DISMISS

Defendants filed motions to dismiss, alleging that before issuing its letters of September 10, 1968, EEOC did not (1) investigate any one of the charges filed by plaintiffs, (2) make any determination that there existed reasonable cause to believe that one of the charges was true, (3) make any efforts to eliminate the alleged unlawful practices by informal methods of conference, conciliation and persuasion.

Defendants contend that it is a prerequisite to the filing of suits of this nature that the Commission (1) furnish defendant with a copy of the charge, (2) make an investigation of the charge, and, (if the Commission determines, after such investigation that there is a reasonable cause to believe that the charge is true) (3) endeavor to eliminate the alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion; that plaintiffs cannot maintain this action because, before issuing its letters of September 10th, EEOC did not do anything except furnish defendants with copies of the charges; and that the failure of the EEOC to investigate the charges, make a determination as to the truthfulness of the same, and endeavor to eliminate the alleged unlawful employment practices by informal methods of conference, conciliation, and persuasion, before issuing its September 10th letters is fatal to plaintiffs' right of action.

On the other hand plaintiffs contend that the failure of EEOC to perform these duties does not prevent them from prosecuting the action; that they are authorized to file suit when they (1) have filed sworn charges with EEOC, and (2) after the expiration of sixty (60) days, have received notice from EEOC, that the Commission has been unable to obtain voluntary compliance with Title VII of the Act.

The parties have filed excellent briefs and have made able arguments in support of their respective positions.

CONCLUSIONS OF LAW

The Court is of the opinion that the motions must be overruled on the authority of Dent et al v. St. Louis-San Francisco Railway Corp., et al, 5 Cir., 406 F.2d 399, Jan. 8, 1969, reversing 265 F.Supp. 56, N.D.Ala.1967.

In Dent the charge was filed September 10, 1965. Copies of Dent's charge were served on the defendants on October 8, 1965. On December 8, 1965, the Commission issued a decision, after an investigation, to the general effect that there was reasonable cause to believe that defendants were violating Title VII of the Act.

December 15, 1965, defendant company was informed of this decision by letter from the Commission. January 5, 1966, the Commission advised Dent that "the conciliatory efforts of the Commission have not achieved voluntary compliance with Title VII of the Civil Rights Act of 1964. Since your case was presented to the Commission in the early months of the administration of Title VII of the Civil Rights Act of 1964, the Commission was unable to undertake extensive conciliation activities. * * * Under Section 706(e) of the Act, you may within thirty (30) days from receipt of this letter commence a suit in Federal district court."

Action was filed in the District Court on February 7, 1966.

The District Court dismissed the action on the ground that "conciliation * * * is a jurisdictional prerequisite to the institution of a civil action under Title VII". The Circuit Court of Appeals for the Fifth Circuit reversed, and said:

"Section 706(e), 42 U.S.C. 2000e-5(a), after making reference to the receipt by the Commission of a charge of unlawful employment practice, provides:

`The Commission shall * * * make an investigation of such charge. * * * If the Commission shall determine, after such investigation, that there is reasonable cause to believe that the charge is true, the Commission shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation and persuasion.\'

"Section 706(e), 42 U.S.C. 2000e-5(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

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