467 F.2d 945 (10th Cir. 1972), 71-1782, Washington v. Safeway Corp.

Docket Nº:71-1782.
Citation:467 F.2d 945
Party Name:Wilbert Tony WASHINGTON, Plaintiff-Appellant, v. SAFEWAY CORPORATION, Defendant-Appellee.
Case Date:October 18, 1972
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 945

467 F.2d 945 (10th Cir. 1972)

Wilbert Tony WASHINGTON, Plaintiff-Appellant,

v.

SAFEWAY CORPORATION, Defendant-Appellee.

No. 71-1782.

United States Court of Appeals, Tenth Circuit.

October 18, 1972

Paul A. Phillips, Albuquerque, N. M., for plaintiff-appellant.

John B. Tittmann, Albuquerque, N. M. (Timothy B. Keleher, and Keleher & McLeod, Albuquerque, N. M., on the brief), for defendant-appellee.

Before PHILLIPS, HILL and BARRETT, Circuit Judges.

PER CURIAM.

This action was brought by Washington 1 against Safeway under Title VII of the Civil Rights Act of 1964, 2 42 U.S.C.A. § 2000e-5(a).

We set out the provisions of the Act here pertinent in note 3 hereto. 3

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Safeway maintains a milk processing plant at Clovis, New Mexico. During the course of the plaintiff's employment by Safeway there was filed, on August 9, 1968, a charge made by a Commissioner of the Equal Employment Opportunity Commission 4 with said Commission that Safeway had violated and continued to violate the Act by discriminating against Negroes and Spanish-surnamed Americans because of their race or national origin, with respect to hiring and recruitment in Clovis, New Mexico. Such charge was served upon Safeway on August 30, 1968, and in accordance with the Commission's procedures, was thereafter investigated. On September 30, 1969, the Commission rendered its decision that:

"Reasonable cause exists to believe that Respondent Employer [Safeway] is committing an unlawful employment practice in violation of Title VII of the Civil Rights Act of 1964 by refusing or failing to hire Negroes and Spanish Surnamed Americans because of their race and national origin respectively.

"Reasonable cause exists to believe that Respondent Employer [Safeway] has committed an unlawful employment practice in violation of Title VII of the Act by maintaining disparate and less favorable conditions of employment for its Negro employees because of their race."

Attempts to eliminate the alleged unlawful employment practices by informal methods, as provided in § 2000e-5(a), failed. On December 1, 1970, the Commission notified plaintiff of his right to sue, and on December 30, 1970, plaintiff commenced this action.

At the beginning of the trial, counsel for the plaintiff took the position that the action brought by Washington was a class action. We set out in note 5 hereto all of the allegations of the complaint, except the jurisdictional allegations in paragraph 1, the alleged exhaustion of administrative remedies in paragraph 4, that the court authorized the commencement of the action without payment of costs or giving security for costs in paragraph 5, and an allegation in paragraph 2 that plaintiff is a black man. 5

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At the beginning of the trial, counsel for Washington took the position that the action was a class action. The court observed that such position "does not square with your complaint, " and in effect said the plaintiff sought to recover $1500 damages for himself and an injunction restraining Safeway from discriminating against this particular plaintiff. Counsel for the plaintiff then said, "That is true, but it is brought as a member of a particular class which Commissioner Ximenes says has been discriminated against in employment practices by Safeway."

The court held it was not a class action.

Notwithstanding the opening sentence of paragraph 3 of the complaint; that each of the subdivisions thereof from (a) through (h), except subparagraph (f), charged alleged unfair employment practices by Safeway solely against the plaintiff, and that his prayer for relief was solely for himself; and notwithstanding his total failure either to allege or show the prerequisites to the...

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