447 F.2d 159 (5th Cir. 1971), 30267, Danner v. Phillips Petroleum Co.

Docket Nº:30267.
Citation:447 F.2d 159
Party Name:Pauline DANNER, Petitioner-Appellee, v. PHILLIPS PETROLEUM CO., Respondent-Appellant.
Case Date:August 23, 1971
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 159

447 F.2d 159 (5th Cir. 1971)

Pauline DANNER, Petitioner-Appellee,

v.

PHILLIPS PETROLEUM CO., Respondent-Appellant.

No. 30267.

United States Court of Appeals, Fifth Circuit.

Aug. 23, 1971

Page 160

         Joe V. Peacock, Odessa, Tex., W. B. Browder, Jr., Stubbeman, McRae, Sealy, Laughlin & Browder, Midland, Tex., for respondent-appellant.

         Bob Hoblit, Burnett & Childs, Odessa, Tex., for petitioner-appellee.

         Before TUTTLE, THORNBERRY and INGRAHAM, Circuit Judges.

         THORNBERRY, Circuit Judge:

         In this sex discrimination case, Phillips Petroleum appeals from the judgment of the court below holding that Phillips' discharge of Mrs. Pauline Danner, the plaintiff below, was an unfair employment practice in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e et seq. 1

         Mrs. Pauline Danner began working for Phillips Petroleum in March 1957. She was discharged by the company in January 1967. During the ten-year period she was employed at Phillips, Mrs. Danner performed the following tasks: (1) Testing plant water; (2) mixing chemicals for the water treatment; (3) cleaning the spark plugs for the plant engines; (4) doing the regular production figuring; (5) keeping the oil reports and the engine reports; (6) typing up the accident reports; (7) preparing and keeping up with the time sheets; (8) drawing diagrams and making the reports of leaks occurring in the field; (9) answering the telephone; and (10) cleaning the restrooms, washing the walls and woodwork, and burning the trash. The label Phillips placed on this conglomerate of tasks assigned to Mrs. Danner was 'plant clerk.'

         The trial court found, and the Record supports the finding, that Mrs. Danner had a high employee rating. Although Phillips claims that Mrs. Danner's job was eliminated, the trial court found that her job was not eliminated. The trial court's finding is supported by the Record, which reveals that Mrs. Danner's duties continued to be performed by four utility men, or roustabouts, in the plant.

         Although Mrs. Danner had been working for Phillips for almost ten years when she was discharged, she had no seniority rights and no bidding or 'bumping' rights that would have enabled her to assert any rights to another job with Phillips. The trial court found, and the evidence on this point is uncontradicted, that none of the female employees at Phillips had seniority or bidding rights. Phillips claims that Mrs. Danner was discharged as part of an economy measure, and there is nothing in the Record to contradict this claim. According to Phillips' own witness, however, the reason Phillips discharged Mrs. Danner

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rather than some other employee in its economy move was that Mrs. Danner had no seniority or bumping privileges, and therefore could not assert any rights to another position with Phillips (Appendix, p. 99). Had Phillips sought to discharge any of the men who replaced Mrs. Danner, the men would have been able to assert their seniority and bidding rights. On these facts, the trial court concluded that Mrs. Danner suffered sex discrimination.

         I. Jurisdiction

         Phillips' first contention is that this Court lacks jurisdiction over Mrs. Danner's claim because the EEOC, where Mrs. Danner first filed her discrimination charge against Phillips, has made no attempt to obtain voluntary compliance or conciliation under Title VII. The EEOC did make an investigation of Mrs. Danner's charge, and it determined that reasonable cause existed to believe that an unlawful employment practice within the meaning of Title VII had been committed. 2 Subsequently, the EEOC notified Mrs. Danner that she might bring a civil action against Phillips. The EEOC apparently made no effort to conciliate with Phillips, however.

          Although we agree with Phillips that one purpose of Title VII is to encourage voluntary compliance, its contention that an EEOC effort to conciliate is a jurisdictional prerequisite to a Title VII action borders on being frivolous. It is now too well settled to discuss that No EEOC effort to conciliate is required before a federal court may entertain a Title VII action. See Miller v. International Paper Co., 5th Cir. 1969, 408 F.2d 283, 288-291, and the cases cited therein. Miller holds that 'an effort to conciliate by the EEOC is not in any sense a condition precedent to the charging party's right to seek judicial consideration of his grievance.' 408 F.2d at 291.

         II. Scope of Mrs. Danner's Charge

         Phillips' second contention is that the charge Mrs. Danner originally filed with the EEOC was limited to a complaint that she was fired, and that a judicial inquiry into her complaint may not extend beyond the scope of that original charge into matters of seniority and bidding rights. In her charge with the EEOC, Mrs. Danner complained simply that 'they took a young roustabout and gave him my job and laid me off. Therefore due to the fact that my position was not eliminated, just taken from me and given to a man, I feel that I have been mistreated and damaged.'

          We find this statement quite ample to...

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