Equal Employment Op. Com'n v. Missouri Pacific R. Co., 73-1714.

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Citation493 F.2d 71
Docket NumberNo. 73-1714.,73-1714.
PartiesEQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Appellant, v. MISSOURI PACIFIC RAILROAD COMPANY, Appellee.
Decision Date25 February 1974

Susan J. Johnson, Appellate Div., Washington, D. C., for appellant.

Burton M. Greenberg, St. Louis, Mo., for appellee.

Before MATTHES, Senior Circuit Judge, HEANEY, Circuit Judge, and SMITH,* Senior District Judge.

Rehearing and Rehearing En Banc Denied March 21, 1974.

MATTHES, Senior Circuit Judge.

The Missouri Pacific Railroad Company (Company) has established certain qualifications and standards for employment in entry-level clerical positions. One of these standards provides that the Company will refuse to hire any person convicted of a criminal offense other than a minor traffic violation. Buck Green's application to the Company for employment as a night clerk was rejected on September 29, 1970, because Green's application disclosed that he had been convicted in 1967 of failure to report for military induction, a felony.

On December 22, 1970, the Equal Employment Opportunity Commission (EEOC or Commission) received a letter from Green complaining of the Company's rule prohibiting employment of convicted felons. On January 11, 1971, the Commission deferred the charge to the Missouri Commission of Human Rights. Green filed a verified formal charge with the EEOC on January 20, 1971, in which he contended that the Company's rejection of his employment application constituted religious discrimination since his failure to report for induction had been premised upon an alleged conscientious objector status. Sixty-one days after the charge had been referred to the Missouri Commission of Human Rights, the EEOC assumed jurisdiction and undertook an investigation. On August 9, 1971, Green filed a perfected charge with the Commission alleging that he had been discriminated against "because of my religious creed (Conscientious Objector) and because of my race (Negro)." With regard to the racial allegation, Green elaborated:

I must point out that in addition to any simple racial discrimination on the part of MoPac, my conviction could conceivably have stemmed from my race in that there appears to be a tendency of local boards to deny black claimants conscientious objector classifications possibly because they may not be glib in articulating their beliefs, lack of a black local board member on the black registrant\'s board, racial prejudice of those existing board members, and when subsequently placed into court—prejudice on the part of the sentencing judge in his failure to recognize any concept of patriotism but his own which is often quite limited.

At the close of the EEOC investigation, the Director of the St. Louis District Office made the following findings of fact, among others:

A policy of not hiring convicted felons has the effect of disqualifying a higher percentage of Negroes than whites.
The violation for which the Charging Party was convicted would not disqualify him from performing the job for which he applied nor would that violation based on religious convictions constitute a "risk" to the Respondent.

The Company duly filed exceptions to the District Director's findings. The Commission concluded:

There is reasonable cause to believe that Respondent is in violation of Title VII of the Civil Rights Act of 1964 42 U.S.C. § 2000e et seq. by refusing to hire Charging Party and others similarly situated on the basis of their race (Negro), who have conviction records which are unrelated to the nature of Respondent\'s business * * *, by inquiring into applicant\'s arrest records, for such policy has a disproportionate impact upon minorities, * * * by maintaining segregated employment classifications which exclude Negroes on the basis of race * * *.

Attempts by the Commission at conciliation with the Company were unsuccessful, and on August 11, 1972, the District Director issued to Green, pursuant to his request, a notice of right to sue within ninety days. On November 7, 1972, Green filed a class action against the Company in the United States District Court for the Eastern District of Missouri alleging racially discriminatory employment practices in violation of Title VII and 42 U.S.C. § 1981, and seeking a declaratory judgment under 28 U.S.C. §§ 2201 and 2202.

On April 5, 1973, on the basis of Green's charge of an unlawful employment practice, the Commission also filed suit against the Company in the Eastern District of Missouri, alleging violations of Title VII, including racially discriminatory practices and policies with respect to hiring, assignments, promotion, on-the-job training, and other terms, conditions and privileges of employment.

On April 13, 1973, District Judge Webster (now Circuit Judge) limited Green's class action to "those Negroes who have been denied employment at defendant's General Office because of defendant's alleged policy of refusing to hire persons arrested and convicted of a criminal offense other than a minor traffic violation." Green's complaint had attempted to include black employees of the Company who allegedly suffered from the maintenance of a racially segregated work force and racially segregated job classifications within the class.

On July 2, 1973, the Company filed a motion to dismiss the Commission's suit on the ground, among others, that the court lacked subject matter jurisdiction in view of Green's previously-filed suit involving substantially the same allegations and arising from the same charge filed with the EEOC.

The Commission, in its memorandum in opposition to the motion to dismiss, argued that the Commission's suit raised broader issues than those raised in the private suit.

The district court, Judge Wangelin, granted the motion, holding:

To dismiss the instant action would not deprive the plaintiff a remedy as 42 U.S.C. § 2000e-5(f)(1) provides for the Commission\'s intervention in a civil action brought by the aggrieved party.
The Court can find no purpose in proceeding with two independent lawsuits which arise from the same fact situation, present identical issues and only differ as to the prayer for relief. Therefore, this Court will dismiss the instant action without prejudice and the plaintiff may make application to intervene in Cause No. 72 C 702(4).

The Commission has appealed from the order of dismissal.

This case, and others recently decided by the District Court for the Eastern District of Missouri,1 focus upon the proper scope of the Commission's enforcement powers under the newly-enacted Equal Employment Opportunity Act of 1972 (otherwise referred to as the 1972 Amendments to Title VII of the Civil Rights Act of 1964) (effective March 24, 1972). More specifically, we must decide whether the prior filing and prosecution of a private suit by the charging party pursuant to a "right to sue" notice preclude the later filing of an action by the Commission grounded upon the charging party's complaint and seeking to enlarge and broaden the issues.

For reasons stated below, we affirm the dismissal of this action.

Section 706(f)(1) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(f)(1), as amended by the Equal Employment Opportunity Act of 1972, provides in pertinent part:

If within thirty days after a charge is filed with the Commission or within thirty days after expiration of any period of reference under subsection (c) or (d) of this section, the Commission has been unable to secure from the respondent a conciliation agreement acceptable to the Commission, the Commission may bring a civil action * * *. The person or persons aggrieved shall have the right to intervene in a civil action brought by the Commission * * *. If a charge filed with the Commission pursuant to subsection (b) of this section is dismissed by the Commission, or if within one hundred and eighty days from the filing of such charge or the expiration of any period of reference under subsection (c) or (d) of this section, whichever is later, the Commission has not filed a civil action under this section * * *, or the Commission has not entered into a conciliation agreement to which the person aggrieved is a party, the Commission * * * shall so notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge * * * by the person claiming to be aggrieved * * *. Upon timely application, the court may, in its discretion, permit the Commission * * * to intervene in such civil action upon certification that the case is of general public importance.

In general, the procedure may be summarized as follows:

1. A charge must be filed within 180 days after the occurrence of an alleged unlawful employment practice.

2. If the Commission finds reasonable cause to believe that the charge is true, and conciliation attempts prove unsuccessful, the Commission may bring suit against the respondent within 180 days of the filing of the charge. The charging party shall have the right to intervene in the...

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