McGee v. Purolator Courier Corp.

• Decision Date: 03 May 1977
• Docket Number: No. CA77-H-450-S.,CA77-H-450-S.
• Citation: 430 F. Supp. 1285
• Parties: Lois Joan McGEE, Plaintiff, v. PUROLATOR COURIER CORPORATION, Defendant.
• Court: U.S. District Court — Northern District of Alabama

430 F. Supp. 1285

Lois Joan McGEE, Plaintiff, v. PUROLATOR COURIER CORPORATION, Defendant.

No. CA77-H-450-S.

United States District Court, N. D. Alabama, S. D.

May 3, 1977.

Edward Still, Judith S. Crittenden, Birmingham, Ala., for plaintiff.

Arnold E. Perl, Young & Perl, Memphis, Tenn., Larry Waites, Dinsmore & Waites, Birmingham, Ala., for defendant.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

HANCOCK, District Judge.

On March 15, 1977, plaintiff filed with the Equal Employment Opportunity Commission ("EEOC") a charge of discrimination asserting that defendant, who operates a courier business, discriminates against female employees in route assignments. On April 4, 1977, plaintiff filed this action asserting that on or about March 28, 1977, defendant retaliated against her for having filed the charge. Plaintiff's complaint endeavors to invoke this court's jurisdiction under Title VII of the Civil Rights Act of 1964 and seeks only what plaintiff characterizes as preliminary injunctive relief, requesting the court to retain the action until a "right to sue" letter is received. By order entered April 7, 1977, the court set the matter down for hearing on April 19, 1977, alerting the parties to some of the court's concern as to its jurisdiction. The hearing on April 19, 1977, was recessed until April 28, 1977, at which time that hearing concluded the receipt of evidence and both parties rested. The matter is now before the court on the pleadings, the evidence received on April 19 and 28, 1977, and the excellent briefs of the attorneys, and the court hereby enters its findings of fact and conclusions of law.

Jurisdiction

There is no question that once the jurisdiction of this court is properly invoked an individual plaintiff in an employment discrimination action is entitled to interlocutory injunctive relief upon a proper evidentiary showing. Certainly that jurisdiction can be properly invoked in private employment discrimination suits pursuant to 42 U.S.C. § 2000e-5(f)(1) which requires prompt action after the receipt of the "right to sue" letter. Where the discrimination is alleged to be racial in nature, that jurisdiction can also be invoked under 42 U.S.C. § 1981 with its own jurisdictional grant (28 U.S.C. § 1343). But in the instant action racial discrimination is not an issue and the procedural route under § 2000e-5(f)(1) has not been followed. Instead, plaintiff has filed a complaint seeking interlocutory injunctive relief which, as addressed to the jurisdictional issue, alleges only that "this action arises under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq. Jurisdiction is vested in this Court by that statute."

The Supreme Court has stated that both the timely filing of a charge of employment discrimination and the receipt and timely action thereupon of the EEOC's statutory notice of the right to sue are "the jurisdictional prerequisites to a federal action" by an individual under Title VII. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798, 93 S.Ct. 1817, 1822, 36 L.Ed.2d 668 (1973) (emphasis added); Beverly v. Lone Star Lead Construction Corp., 437 F.2d 1136 (5th Cir. 1971). No right to sue letter has been issued to the plaintiff herein.

Nonetheless, relying primarily upon Drew v. Liberty Mutual Insurance Company, 480 F.2d 69 (5th Cir. 1973), plaintiff argues that she is entitled to bring what amounts to an action identical to that which the EEOC is specifically empowered to bring pursuant to 42 U.S.C. § 2000e-5(f)(2).¹ It is true that Drew contains some broad language supportive of plaintiff's view that this court has jurisdiction to entertain this action. See Drew, supra, at 72-73. However, several considerations militate against applying Drew to the present action. The first is the significant factual distinction between Drew and the instant action. In Drew jurisdiction was properly plead by an amended complaint which alleged that the EEOC had issued a "right to sue" letter. It is therefore clear that, at the time the hearing for injunctive relief was held, jurisdiction had been properly invoked under the two-pronged test enunciated in McDonnell Douglas Corp. v. Green, supra. Secondly, much of Judge Tuttle's rationale in Drew seems to be premised on the proposition that prior to the 1972 Amendments to the Civil Rights Act of 1964 an individual "had a clear right to seek equitable relief without having to await the convenience of the EEOC."² 480 F.2d at 73. The court has been cited to no case, nor can the court find a case wherein, prior to the 1972 Amendments, interlocutory relief was granted to an individual without a right to sue letter and jurisdiction was predicated exclusively upon Title VII. Indeed, Sanders v. Dobbs Houses, Inc., 431 F.2d 1097 (5th Cir. 1970), which is the case relied upon by Drew for the granting of interlocutory relief to an individual without a right to sue letter, was in fact a § 1981 action where jurisdiction had been properly invoked under 28 U.S.C. § 1343. Third, although Drew postdated McDonnell Douglas Corp. v. Green, supra, by approximately one month, Judge Tuttle's opinion failed to discuss the obvious implications of McDonnell's jurisdiction prerequisites to an individual action for interlocutory relief solely under Title VII where those jurisdictional prerequisites had not been met. Perhaps this is because the issue was moot in Drew since jurisdiction was properly invoked once the "right to sue" letter was issued and the complaint amended. Finally, subsequent case law, discussed below, casts substantial doubt upon the propriety of this court having jurisdiction to entertain Mrs. McGee's action for relief, interlocutory or otherwise, at this time.

As noted earlier, this action was commenced on April 4, 1977, less than 30 days after the initial EEOC charge was filed by the plaintiff on March 15, 1977.³ With the exception of a suit brought specifically under 42 U.S.C. § 2000e-5(f)(2), even the EEOC could not have initiated a suit within the first 30 days after the charge was filed. See 42 U.S.C. § 2000e-5(f)(1). The 1972 Amendments have been correctly interpreted to bar private actions for a period of 180 days after the EEOC charge is filed. Equal Employment Opportunity Commission v. Louisville & Nashville Railroad, 505 F.2d 610, 615 (5th Cir. 1974). Further, while there exist cases specifically denying a jurisdictional basis for an action such as that brought by the plaintiff herein,⁴ the court has found no authority, except for Parks v. Dunlop, supra, discussed in footnote 2 above, for the proposition that a jurisdictional basis exists for any kind of an individual action exclusively under Title VII prior to the receipt of a "right to sue" letter. In all other cases which have been brought to the court's attention to support the plaintiff's contention, the jurisdiction of the court had in fact been properly invoked. Drew v. Liberty Mutual Insurance Company, 480 F.2d 69 (5th Cir. 1973) (right to sue letter issued); Murry v. American Standard, Inc., 488 F.2d 529 (5th Cir. 1973) (right to sue letter issued)⁵; Culpepper v. Reynolds Metals Company, 421 F.2d 888 (5th Cir. 1970) (right to sue letter issued). Finally, recent decisions in other circuits have expressed doubt as to the propriety and jurisdictional basis of an action such as that brought by the plaintiff herein. Hochstadt v. Worcester Foundation for Experimental Biology, 545 F.2d 222, 225-26 (1st Cir. 1976); Berg v. Richmond Unified School District, 528 F.2d 1208, 1211-13 (9th Cir. 1975).

Therefore, because Mrs. McGee has neither received a right to sue letter nor demonstrated an independent basis for jurisdiction for this action, the court concludes that it is without jurisdiction to hear this action and that this action should be dismissed for want of jurisdiction.

Merits

Prior to the commencement of the hearing on April 19, 1977, the court pointed out its serious concern for its apparent lack of jurisdiction. The court nevertheless proceeded to receive evidence addressed to the issuance vel non of the requested interlocutory relief. Having considered all the evidence offered by the parties on April 19 and 28, 1977, the court further concludes that plaintiff has failed to establish a factual basis for the requested interlocutory relief even if the court had jurisdiction of this action.

In order to establish her right to interlocutory injunctive relief, plaintiff at least has to show either

(1) a violation in fact of a right given to plaintiff by a statute, United States v. Hayes International Corporation, 415 F.2d 1038 (5th Cir. 1976),⁶ or

(2) the traditional four prerequisites to the grant of such relief, including principally a substantial likelihood of success on the merits and the existence of irreparable injury. Morgan v. Fletcher, 518 F.2d 236 (5th Cir. 1975).

It should be emphasized that plaintiff does not predicate her request for injunctive relief on events occurring prior to March 24, 1977 (it is undisputed that on March 15, 1977, she filed with the EEOC an initial charge of discrimination by defendant and that the charge was served on defendant on March 24, 1977). Plaintiff asserts that the actions of defendant on March 24, 1977, and thereafter, most significantly on March 28, 1977, were in retaliation for the filing of the March 15, 1977 charge and hence constituted an unlawful employment practice under 42 U.S.C. § 2000e-3(a). Were the events occurring between March 24 and March 28 in any way motivated by or associated with the charge of discrimination theretofore filed by plaintiff, then she would be correct. But the only credible evidence offered to show the requisite connection with the original charge was the inference which could be drawn from the fact that the March 28, 1977 meeting was called on March 24, 1977, the very day defendant was served with the original charge. All other evidence militates against any connection between the original...