622 F.2d 271 (7th Cir. 1980), 78-2431, E.E.O.C. v. Massey-Ferguson, Inc.

Docket Nº:78-2431.
Citation:622 F.2d 271
Party Name:EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. MASSEY-FERGUSON, INC., Defendant-Appellee.
Case Date:May 13, 1980
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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622 F.2d 271 (7th Cir. 1980)

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant,

v.

MASSEY-FERGUSON, INC., Defendant-Appellee.

No. 78-2431.

United States Court of Appeals, Seventh Circuit

May 13, 1980

Argued Oct. 25, 1979.

Page 272

Robert J. Loots, Milwaukee, Wis., for plaintiff-appellant.

Paul E. Mirengoff, E.E.O.C., Washington, D. C., for defendant-appellee.

Before SPRECHER, Circuit Judge, VAN DUSEN, Senior Circuit Judge [*], and CUDAHY, Circuit Judge.

CUDAHY, Circuit Judge.

This action arose from charges of employment discrimination filed by Ronald Leal and Raymond Vidales with the Equal Employment Opportunity Commission (the "Commission") in 1970. The charges alleged that defendant, Massey-Ferguson, Inc. (the "Company"), had failed to hire each charging party because of his national origin in violation of Title VII of the 1964 Civil Rights Act (as amended, 42 U.S.C. § 2000e et seq.). In 1975 the Commission brought this action on behalf of all those adversely affected by the Company's hiring

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practices and asserted a claim for backpay on their behalf. The Company's motion for partial summary judgment dismissing the backpay claims of class members who had not filed charges with the Commission was granted by the district court on the grounds that the Commission was barred by laches from asserting backpay claims for anyone other than the charging parties. 1 The Commission appeals from the grant of summary judgment, arguing that it did not delay inexcusably in asserting the backpay claims and that the Company was not materially prejudiced by the delay, even if it were inexcusable.

We agree with the district court's finding of inexcusable delay, although we do not agree with its interpretation of the complaint or its view of the conciliation requirement. However, we must reject its finding of material prejudice because the record presents genuine questions of material fact on the issue of prejudice, which make summary judgment improper. We therefore remand this aspect of the case to the district court for a full evidentiary hearing on the issue of prejudice.

  1. Facts

    Both Leal and Vidales allegedly tried to apply for work at the Company in the summers of 1969 and 1970, but neither one was allowed to fill out an application. 2 They each filed a charge with the Commission in October 1970. Both charges alleged that the Company did not hire them because of their national origin (Mexican-American). The Commission referred the charges to the appropriate state agency and obtained jurisdiction over them in January 1971. The Commission issued separate "letters of determination" to Leal and Vidales on June 12, 1973. Each letter found that there was "probable cause" for the Commission to believe that (1) the charging party had not been hired because of his national origin and (2) the Company's hiring policies had adversely affected minority applicants, particularly blacks and Mexican-Americans.

    Attorneys from the Commission met with representatives of the Company on July 31, 1973, in an attempt to "conciliate" the dispute. More specifically, the charges (or practices) conciliated were: (1) the refusal to let either Leal or Vidales fill out an application for employment in 1970, (2) the preferential hiring of relatives of those persons already employed at the Company, (3) the preferential hiring of college students for summer employment, (4) reliance on word of mouth recruiting (rather than advertising) and (5) reliance on recommendations of current employees. At this meeting the Company agreed to post notices of job openings and to stop preferential hiring of friends and relatives of employees. However, the Company did not agree to give Leal or Vidales job offers and backpay or to stop seeking college students for summer work. An employee of the Commission, Carole Culbreath, was present at this conciliation meeting and stated that "class relief was discussed." (Culbreath's affidavit, p. 1; July 18, 1977, transcript. p. 5.) The parties communicated by telephone and letter after this meeting, but did not manage to resolve the dispute.

    In December 1974, the Commission issued a "right to sue" letter to Leal and informed the Company that conciliation had failed. Leal filed a private action in March 1975, which was settled for $2,000.00 in January 1977. The Company complained to the Commission about various delays in April 1975. The Commission filed its complaint on June 3, 1975, alleging that the Company had "failed to hire members of minority groups because of their race or national origin" and that the Company's hiring practices had an "adverse impact" on applicants who were members of minority groups. The complaint requested relief in the form of backpay and "other affirmative relief" to

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    "make whole those persons adversely affected by the unlawful employment practices. . . ."

    Discovery began in July 1975 and proceeded until October 1976. In July 1975 the Commission sought copies of all of the applications the Company had received from 1968 to 1975. In March 1976 the Company received the Commission's investigative file for the instant case, which concerned matters relating only to Leal, Vidales and the Company's hiring practices. Robert J. Loots, an attorney for the Company, stated that the Commission represented on March 13, 1976, that it was not seeking a fund for "unknown victims." On July 8, 1976, the Commission made the first undisputed reference to its efforts to identify members of the class and assert claims on their behalf. (Loots' affidavit, pp. 4-5.)

    The Commission's trial attorney assigned to the instant case stated that, although the Commission indicated that it would not seek a fund for unknown victims like that in EEOC v. Detroit Edison Co., 515 F.2d 301 (6th Cir. 1975), vacated, 431 U.S. 951, 97 S.Ct. 2669, 53 L.Ed.2d 267 (1977), it had never represented that backpay claims would be limited to Leal and Vidales or to the years 1968 through 1970. She also stated that she told the Company that the EEOC would identify the individuals against whom the Company had discriminated and would seek backpay and injunctive relief on their behalf, but she did not indicate when she made these statements. (Young's deposition, p. 2.)

    In August 1976 the Commission sent questionnaires to 500 members of minority groups who had unsuccessfully applied for work at the Company between May 1972 and May 1975. In December 1976 the Commission informed the Company that it would seek backpay totalling $347,292.20 on behalf of twenty-three of these applicants, all of whom had been rejected for unskilled positions. Most of these individuals had applied for work after the June 1973 reasonable cause determination and the July 1973 conciliation meeting.

    The Commission and the Company have submitted affidavits and depositions of several employees of the Company, which describe the manner in which employees were selected. All applicants were required to fill out an application. From August 1972 until November 1975 all applications were coded to indicate the race of the applicant so the Company could keep records on the number of minorities applying for jobs. After November 1975 information dealing with the race of an applicant was recorded on a separate applicant flow log.

    From 1966 to 1973 Thomas Thielen was the Personnel and Industrial Relations Manager for the Company's Racine facility. During this period Thielen decided which applicants would be interviewed.

    "We would use a random selection depending upon did they sign the application for one; did they make it out complete; did they write reasonably legible (sic) because in our line of work it's necessary that they are able to write legibly."

    If a job opening was only temporary "we couldn't call in somebody who was working somewhere else." (Thielen's deposition, pp. 22-24.) Thielen usually conducted the interviews during this period.

    Applicants for unskilled jobs were interviewed only by Thielen, but for skilled jobs Thielen would make the "initial" selection and a supervisor would make the "actual" selection. (Thielen's deposition, pp. 23-25.) The Company's unskilled jobs required only the ability to read, write, do arithmetic and perhaps drive a vehicle. Skilled jobs were generally filled by persons already...

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