676 F.2d 877 (2nd Cir. 1981), 1651, Sheehan v. Purolator Courier Corp.

Docket Nº:1651, Docket 81-7388.
Citation:676 F.2d 877
Party Name:Patricia SHEEHAN, Plaintiff-Appellant, v. PUROLATOR COURIER CORPORATION and Purolator, Inc., Defendants-Appellees.
Case Date:August 10, 1981
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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676 F.2d 877 (2nd Cir. 1981)

Patricia SHEEHAN, Plaintiff-Appellant,

v.

PUROLATOR COURIER CORPORATION and Purolator, Inc.,

Defendants-Appellees.

No. 1651, Docket 81-7388.

United States Court of Appeals, Second Circuit

August 10, 1981

Argued Aug. 10, 1981.

Decided .

Opinion Feb. 22, 1982.

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Judith P. Vladeck, New York City (Vladeck, Elias, Vladeck & Engelhard, P. C., New York City, on the brief), for plaintiff-appellant.

Joel L. Finger, New York City (Allen B. Roberts, Thomas C. Greble, Sloan, Roberts & Finger, New York City, on the brief), for defendants-appellees.

Sandra G. Bryan, Washington, D. C. (Constance L. DuPre, Acting Deputy Gen. Counsel, Philip B. Sklover, Acting Associate Gen. Counsel, Vincent Blackwood, Assistant Gen. Counsel, E. E. O. C., Washington, D. C., on the brief), for amicus curiae Equal Employment Opportunity Commission.

Before VAN GRAAFEILAND and KEARSE, Circuit Judges, and MARKEY, Chief Judge. [*]

KEARSE, Circuit Judge:

This appeal requires us to determine whether a federal court has jurisdiction to entertain an action brought by an individual plaintiff under Title VII of the Civil Rights Act of 1964, as amended ("Title VII"), 42 U.S.C. §§ 2000e to 2000e-17 (1976 and Supp. III 1979), seeking a preliminary injunction to maintain the status quo pending resolution of plaintiff's charge of discrimination, notwithstanding that the plaintiff has not yet obtained a "right to sue" letter from the Equal Employment Opportunity Commission ("EEOC" or "Commission").

Plaintiff-appellant Patricia Sheehan, a recent employee of defendant-appellee Purolator Courier Corporation ("Purolator"), sought such temporary relief in the United States District Court for the Eastern District of New York. The court, Henry

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Bramwell, Judge, dismissed the complaint for lack of subject matter jurisdiction, on the ground that there is no express provision for such jurisdiction in Title VII. Believing that the court has the inherent power as a court of equity to grant such temporary relief in the proper circumstances, we reverse and remand.

BACKGROUND

The relevant facts can be stated briefly. Sheehan was hired by Purolator in 1971 and became Staff Vice-President, Administration, in 1977. On January 19, 1981, Sheehan and two other female employees filed charges with the EEOC accusing Purolator of discriminating on the basis of sex "in salary, opportunities for promotion and other terms and conditions of employment," in violation of § 703(a) of Title VII, 42 U.S.C. § 2000e-2(a). 1 According to the complaint in the present action, Purolator immediately responded to Sheehan's EEOC charges by retaliating against Sheehan and her fellow complainants in violation of § 704(a) of Title VII, 42 U.S.C. § 2000(e)-3(a), 2 subjecting Sheehan, in particular, to unprofessional, demeaning, and abusive treatment, to withdrawal of credit that remained available to other employees, and to significant loss of managerial responsibilities. On April 3, Sheehan filed a second charge of discrimination with the EEOC, complaining of the retaliation. On April 13, she commenced the present suit, claiming that the retaliation was causing irreparable harm to her health and career, and requesting a preliminary injunction to maintain the status quo pending the resolution of her EEOC complaints. When Sheehan filed suit she had not obtained a "right to sue" letter from the EEOC under Title VII § 706(f)(1), 42 U.S.C. § 2000e-5(f)(1). See note 6, infra, and surrounding text.

On May 1, in an opinion reported at 25 FEP Cases 1342, Judge Bramwell dismissed the complaint for lack of subject matter jurisdiction. Relying on McGee v. Purolator Courier Corp., 430 F.Supp. 1285 (N.D.Ala.1977), and Berg v. La Crosse Cooler Co., 13 FEP Cases 783 (W.D.Wis.1976), appeal dismissed as moot, 548 F.2d 211 (7th Cir. 1977), the court held "that the receipt of a right to sue letter by a Title VII plaintiff is a jurisdictional prerequisite to the maintenance of a federal court Title VII action." Finding no express provision in Title VII for the granting of injunctive relief prior to the issuance of a right to sue letter, the court "transpose(d) the conspicuous absence of a specific authority for preliminary injunctive relief in Title VII ... into a holding that no such relief is available." 25 FEP Cases at 1342.

This appeal followed. Since we were satisfied that the district court had jurisdiction to grant the requested relief, and since we recognized that reconsideration of the merits of the motion should occur promptly, we announced our then-unanimous (see dissenting opinion of Markey, Ch.J., post) decision from the bench, stating that this opinion would follow. 3

DISCUSSION

The goal of Title VII is to eradicate employment discrimination on the basis of

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race, color, religion, sex, or national origin. See H.R.Rep.No.914, 88th Cong., 1st Sess. 26 (1963), reprinted in (1964) U.S.Code Cong. & Ad.News 2391, 2401. Section 703(a), see note 1, supra, prohibits an employer from discriminating on any such basis in its decisions to hire, fire, compensate, promote, and so forth. 42 U.S.C. § 2000e-2(a). Section 705 established the EEOC for the purpose of investigating claims of discrimination. 42 U.S.C. § 2000e-4. And § 704(a), see note 2 supra, prohibits an employer from retaliating against an employee for having opposed a discriminatory employment practice, for having filed a charge with the EEOC, or for having participated in any way in an investigation or proceeding to review such a charge. 42 U.S.C. § 2000e-3(a).

In seeking the elimination of employment discrimination, the procedural scheme under Title VII emphasizes conciliation rather than litigation. A complainant is required, prior to bringing suit, to file a charge with the EEOC, and if the EEOC determines that there is reasonable cause to believe the complainant's charge, § 706(b) directs it to "endeavor to eliminate (the) alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion." 4 42 U.S.C. § 2000e-5(b). As a general rule, litigation is postponed until "conference, conciliation, and persuasion" have failed to achieve a resolution of the charge that is satisfactory to the aggrieved person. Thus, § 706(f)(1) prohibits a private person from litigating a discrimination charge until the EEOC either has dismissed the charge or has had at least 180 days 5 to

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obtain voluntary compliance. 6 42 U.S.C. § 2000e-5(f)(1). On such dismissal or at the expiration of the prescribed period, the Commission must give notice to the aggrieved person; such notice is commonly called a "right to sue" letter.

In light of the waiting period imposed by § 706(f)(1), it is undisputed that a right to sue letter is a jurisdictional prerequisite to a suit seeking adjudication of the merits of a complainant's Title VII claim. Alexander v. Gardner-Denver Co., 415 U.S. 36, 47, 94 S.Ct. 1011, 1019, 39 L.Ed.2d 147 (1974); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798, 93 S.Ct. 1817, 1822, 36 L.Ed.2d 668 (1973). The question presented in the instant case is whether, during the waiting period prior to the issuance of a right to sue letter, the court has jurisdiction on the application of an aggrieved person to grant a temporary injunction against employer retaliation, simply in order to maintain the status quo pending the EEOC's treatment of the complainant's charge.

Purolator contends that Title VII does not authorize such a request for preliminary relief by a private person, pointing out that § 706(f)(2), which was added to Title VII by amendment in 1972, explicitly authorizes the EEOC to "bring an action for appropriate temporary or preliminary relief" at any time, regardless of the status of any informal negotiation, 7 42 U.S.C. § 2000e-5(f)(2), and that there is no comparable provision with respect to individuals. We agree that neither § 706(f)(2) nor any other provision expressly gives private plaintiffs such a right. But reading the statute as a whole, and having due regard for Congress's intent in enacting Title VII in 1964, Pub.L. No. 882-352, 78 Stat. 241 ("1964 Act") and in amending it in 1972, Pub.L. No. 92-261, 86 Stat. 103 ("1972 Amendments"), we conclude that the court is entitled to use its inherent equity power to award temporary injunctive relief, in appropriate circumstances, in order to maintain the status quo prior to the EEOC's issuance of a right to sue letter.

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The Private Right of Action

The aggrieved individual's right to bring a civil action to redress a violation of Title VII was expressly created by the 1964 Act. Although early congressional bills would have given the EEOC as well a right to bring an action, the heavy emphasis on conciliation as a means of eliminating discrimination led to the exclusion of such a right on the part of the agency, and the EEOC was given no right either to order a remedy for any discrimination it found or to commence litigation to remedy discrimination. Thus, the sole right to enforce Title VII in the courts was given to the person aggrieved. The individual was required to file a charge with the EEOC before seeking substantive relief in court and to delay suit until expiration of the then-thirty-day waiting period for EEOC conciliation attempts; but he or she was not required to rely on the EEOC or to accept its resolution of the dispute. 8

Although the 1964 Act expressly provided this private right of action by which an aggrieved individual could eventually obtain relief from discrimination, that Act made no explicit provision for temporary relief at any stage of the dispute. And although there was some discussion in the legislative history of the fact that the proposed private right...

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