East v. Romine, Inc.

• Decision Date: 02 September 1975
• Docket Number: No. 74-2332,74-2332
• Citation: 518 F.2d 332
• Parties: 11 Fair Empl.Prac.Cas. 300, 10 Empl. Prac. Dec. P 10,383 Cora Lee EAST, Plaintiff-Appellant, v. ROMINE, INCORPORATED, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 332

518 F.2d 332

11 Fair Empl.Prac.Cas. 300,

10 Empl. Prac. Dec. P 10,383

Cora Lee EAST, Plaintiff-Appellant, v. ROMINE, INCORPORATED, Defendant-Appellee.

No. 74-2332.

United States Court of Appeals, Fifth Circuit.

Sept. 2, 1975.

Fletcher Farrington, Savannah, Ga., for plaintiff-appellant.

Bart E. Shea, Savannah, Ga., for defendant-appellee.

Appeal from the United States District Court for the Southern District of Georgia.

Before CLARK, Associate Justice, ^* and GOLDBERG and AINSWORTH, Circuit Judges.

GOLDBERG, Circuit Judge:

This Title VII case presents a nigh diurnal problem for the judiciary. Is a refusal to hire an act of sex discrimination or a permissible decision based on the work-related merits of the individual? This question has formed the chorus for many productions in many seasons of the legal opera. The familiar refrain forms the theme for this work too and the crescendo reverberates: "The antagonist has not shown that his refusal to hire is work-related." This compelling melodic line causes us to commission a new work in the district court addressed to the same human drama. By whatever appellation "litigiousness" or "work history" the appellee's stated reasons for its refusal to hire, adopted by the district court, do not constitute cognizable cause for the refusal.

Plaintiff, Cora Lee East, is a welder who began work in Savannah, Georgia, in World War II. In either June 1967, or May 1968, East first applied for a job with defendant Romine, Inc., a construction business which hired a varying number of welders. ¹ The plaintiff spoke to one of the foremen at the plant, though not to Mr. Romine, who did the hiring, but she did not make a formal application. She appears to have been told at the time that women were unqualified for the type of job for which she was applying. On May 31, 1968, she filed a complaint with the Equal Employment Opportunity Commission charging: "I applied for the position of welder, and I was refused employment because I am female." The EEOC initiated an investigation.

On April 24, 1969 East reapplied for a welding job at Romine, and this time she filed a formal application. Once again, she received no offer from the company. On May 4, 1971 plaintiff received notice from the Commission that it had been unable to work out a voluntary settlement with defendant and that she had a right to bring a civil action within 30 days. The record does not disclose whether the notice came after an EEOC investigation of both the earlier and the latter incidents or merely after the single incident which took place before the complaint was first filed. This suit was filed on May 27, 1971.

The case was tried before the court on July 27 and 31 and August 7, 1972, plaintiff contending that defendant had violated 42 U.S.C. § 2000e et seq., Title VII of the Civil Rights Act of 1964. Some twenty months later, on April 30, 1974, the trial court issued its opinion. The court found that sex discrimination did not motivate the failure to hire East in either 1967 or 1968 because Romine was not hiring welders at the time. The court also found that the failure to hire in 1969 was based on valid reasons in that an investigation by Romine of East's employment background disclosed some unsatisfactory work histories, and that previous complaints that she had made to the EEOC indicated that she was a disputatious and therefore undesirable employee.

We believe that the district court should have dismissed any claim based on incidents allegedly occurring in 1967 since plaintiff did not exhaust her administrative remedies in regard to such alleged incidents. We hold that the district court was not clearly erroneous in its finding that no work existed at the time of Ms. East's 1968 application for employment, and therefore we affirm the ruling that no discrimination is evident in that job refusal. We do not believe, however, that the facts which the district court specified in its decision that no discrimination existed in 1969 are legally cognizable to support such a holding; therefore, we reverse that aspect of its decision. If plaintiff has properly exhausted her administrative remedies in regard to the 1969 claim, she deserves a new trial.

I. The Alleged 1967 Incident: The trial judge found that "the dominant and decisive reason for failure to employ plaintiff in June, 1967 or May, 1968 was not her sex but economic conditions in respect to employment at Romine, Inc."

The district court should not have held on the merits of any claim generated from an alleged 1967 act of discrimination. A jurisdictional prerequisite to bringing a claim in federal court in Title VII suits is that the complainant first exhaust his administrative remedies. As Judge Gewin said in Beverly v. Lone Star Lead Construction Co., 5 Cir. 1971, 437 F.2d 1136:

Nonetheless, the EEOC was intended to and does, play an important role in the legislative scheme. Potential litigants are absolutely required to take a step which affords them at least an opportunity to reach a more amicable conciliation out of court.

It seems clear, therefore, that the requirement of resort to the Commission was designed to give a discriminator opportunity to respond to persuasion rather than coercion, to soft words rather than the big stick of injunction; that the requirement was not designed to serve as a screen to prevent frivolous complaints from reaching the courts.

We do not think the parties should be allowed to bypass this requirement. It is our interpretation of Title VII that there exists an absolute right in each complainant to bring a civil action in federal court. This right, however, is subject to one important proviso: The complainant must comply with the minimum jurisdictional requirements necessary to allow the opportunity for conciliation to mature. The purpose of the Act would indeed be frustrated if the Commission could be avoided entirely or if a party's right to proceed in federal court could be erased by a quasi-judicial determination of the EEOC.

We conclude therefore, that the administrative remedies available from the EEOC must be "exhausted" in the traditional sense of the term, as a prerequisite to federal suit. . . .

To this end, the tenor of the cases has established only two jurisdictional prerequisites to suit in federal court under Title VII: (1) the filing of a complaint with the EEOC and (2) the receipt of the statutory notice of right to sue.

437 F.2d at 1139-40 (footnotes omitted).

In the present case no complaint was filed until May 31, 1968. But the guiding statute at the time, 42 U.S.C. § 2000e-5(d), mandated: "A charge under subsection (a) of this section shall be filed within ninety days after the alleged unlawful employment practice occurred . . ." ² The filing here was not until long after any alleged June 1967 act took place. ³

In sum, filing with the EEOC is a jurisdictional prerequisite to federal court consideration of a discrimination claim under Title VII, and the filing in the current case was not timely in regard to any alleged June 1967 act. For this reason, any action based on the 1967 claim should have been dismissed.

II. The Alleged 1968 Incident: The district court found that in May 1968, as in 1967, economic conditions rather than sex discrimination caused Ms. East not to be hired. Specifically, the court found: "In 1968 it appears that only one welder was employed which commenced on April 6th of that year".

This finding is legally sufficient to hold for the defendant on this cause of action. No prima facie case of sex discrimination was established. The criteria which can be used in determining whether a prima facie case of discrimination under Title VII has been established were set out in McDonnell Douglas Corp. v. Green, 1973, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668: ⁴ 1) that the complainant belongs to a group protected by Title VII; 2) that he applied and was qualified for a job for which the employer was seeking applicants; 3) that, despite his qualifications, he was rejected; and 4) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications. ⁵

The fourth prong of the McDonnell Douglas test indicates the fatal problem in East's 1968 claim "That, after his rejection, the position remained open", McDonnell Douglas, supra, 411 U.S. at 802, 93 S.Ct. at 1824, for no position was open at the time of East's application and no position "remained" open. Rather, Romine was not doing any hiring at the time East applied and did no more hiring for at least the next six months. While the fact that no one was hired for a position after an applicant has been turned down does not in itself belie a case of discrimination, Peters v. Jefferson Chemical Co.supra, 516 F.2d at 450, here there is no indication in the record that the decision not to put anyone on the payroll was a subterfuge for a discriminatory intent.

Thus the East claim of discrimination in 1968 must fail and the district court is affirmed on this cause of action.

III. The Alleged 1969 Incident: Ms. East reapplied to Romine, Inc. in April, 1969, this time filing a formal application. The district court made the following findings about that application:

In 1969 Romine, Inc. hired welders on ten occasions. In eight instances such employment was for a month or less. On the other occasions the employment was around twenty months and nine months, respectively. . . .

(T)here were valid reasons in April, 1969, for failing to employ Mrs. East even if job opportunities as a welder were open at that time. Meanwhile, Mr. Romine had checked with various past employers (of) Mrs. East and persons from whom she might have sought employment. He found that in some cases there had been disagreements between her and her employers, excessive sick leaves in one instance, and on another occasion, unsatisfactory work as a welder at Metal Equipment Company.

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