Liberles v. Cook County

• Decision Date: 01 June 1983
• Docket Number: 81-2353,Nos. 81-2352,s. 81-2352
• Citation: 709 F.2d 1122
• Parties: 31 Fair Empl.Prac.Cas. 1537, 32 Empl. Prac. Dec. P 33,684 Max LIBERLES, et al., Plaintiffs-Appellees, v. COUNTY OF COOK; Jeffrey C. Miller, Director of the Illinois Department of Public Aid; and Louis J. Giordano, Director of the Illinois Department of Personnel, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1122

709 F.2d 1122

31 Fair Empl.Prac.Cas. 1537,

32 Empl. Prac. Dec. P 33,684

Max LIBERLES, et al., Plaintiffs-Appellees, v. COUNTY OF COOK; Jeffrey C. Miller, Director of the Illinois

Department of Public Aid; and Louis J. Giordano,

Director of the Illinois Department of

Personnel, Defendants-Appellants.

Nos. 81-2352, 81-2353.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 14, 1982.

Decided May 26, 1983.

As Amended June 1, 1983.

William A. Wenzel, Nancy K. Donnellan, Cook County Asst. State's Atty., Chicago, Ill., for defendants-appellants.

George F. Galland, Jr., Davis, Miner, Barnhill & Galland Chtd., Chicago, Ill., for plaintiffs-appellees.

Before ESCHBACH, Circuit Judge, SWYGERT, Senior Circuit Judge, and DUMBAULD, Senior District Judge. ^*

SWYGERT, Senior Circuit Judge.

This is an equal pay for equal work case brought by a class of black employees against officials of the Cook County Department of Public Aid ("CCDPA") and the Illinois Department of Public Aid ("IDPA"). The district court entered summary judgment for the employees, 477 F.Supp. 504 (N.D.Ill.1979), and ordered backpay and injunctive relief. We affirm the district court's disposition of the merits, but reverse two aspects of the relief granted to plaintiffs.

Defendants object to nearly every aspect of this complex case. Defendants' procedural objections concerning the district court's jurisdiction and class certification are considered in Parts I and II, respectively, of this opinion. The relevant facts concerning the merits of plaintiffs' claim and the district court's disposition of the liability question are presented in Part III-A. Defendants' factual and legal objections to summary judgment are treated in Parts III-B and C. Part IV addresses subsidiary objections to the finding that these defendants must bear the responsibility and liability for the racial discrimination rather than another governmental unit. Finally, Part V considers defendants' numerous objections to the relief ordered by the district court.

I

We first address defendants' contention that the district court lacked subject matter jurisdiction over plaintiffs' claims of employment discrimination. The relevant facts are as follows. First, the original charge filed with the Equal Employment Opportunity Commission ("EEOC"), pursuant to 42 U.S.C. Sec. 2000e-5 (1976), was not filed by a class or sub-class representative. It was filed by Liberles, the president of the union to which all class members belonged, on their behalf. Liberles is a named plaintiff in the federal court complaint, but he was not treated as a class member by the district court nor was any relief granted to him. Second, the original charge named the government entities and did not specifically name the titular heads of these entities who are the nominal defendants in this case. For example, the original charge named IDPA as the offending employer and not Edelman who was then the director of IDPA and who is a named defendant in this federal court action. Third, neither a copy of the original charge nor the EEOC right-to-sue letter are a part of the record originally filed with this appeal. Plaintiffs have supplemented the record here with the right-to-sue letter.

In Zipes v. TransWorld Airlines, Inc., 455 U.S. 385, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982), the Court held that "filing a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling." 455 U.S. at 393, 102 S.Ct. at 1132 (footnote omitted). Zipes ' basis is the statutory language of 42 U.S.C. Sec. 2000e-5(f)(3) (1976), the legislative history, and the fact that "a technical reading [of Title VII] would be 'particularly inappropriate in a statutory scheme in which laymen, unassisted by trained lawyers, initiate the process,' [Love v. Pullman Co., 404 U.S. 522, 92 S.Ct. 616, 30 L.Ed.2d 679 (1972) ] at 527 ." 455 U.S. at 397, 102 S.Ct. at 1134. Further, by holding that timely filing is not jurisdictional, the Court "honor[ed] the remedial purpose of the legislation as a whole without negating the particular purpose of the filing requirement, to give prompt notice to the employer." Id. at 398, 102 S.Ct. at 1135. Another purpose of the filing requirements is to secure voluntary compliance with the law. Bowe v. Colgate-Palmolive Co., 416 F.2d 711, 719 (7th Cir.1969).

We agree with the reasoning of Jackson v. Seaboard Coast Line RR Co., 678 F.2d 992, 999-1010 (11th Cir.1982). In Jackson the court carefully reviewed the case law and legislative history of Title VII and concluded that it could "discern no rational basis for treating those [Title VII action preconditions, i.e., the requirements of 42 U.S.C. Sec. 2000e-5 (1976) ] that have not been considered from those that implicitly or explicitly have been held not to be jurisdictional." 678 F.2d at 1009 (footnote omitted). Accord Pinkard v. Pullman-Standard, 678 F.2d 1211, 1216-18 (5th Cir.1982). Further, if a defendant does not deny specifically and with particularity, as required by Fed.R.Civ.P. 9(c), the satisfaction of the Title VII lawsuit preconditions, the defendant cannot later assert that a condition precedent to the lawsuit has not been met. Jackson, 678 F.2d at 1010.

Defendants here failed to deny specifically and with particularity plaintiffs' satisfaction of the requirements of 42 U.S.C. Sec. 2000e-5. The only possible indication that the Title VII filing requirements had not been satisfied can be found in defendants' "Answer to the Complaint," in which defendants answered that they had insufficient information to admit or deny plaintiffs' allegations concerning the filing of an EEOC charge. As in Jackson, the defendants here cannot rest upon their averment of "insufficient knowledge" in the pleadings to preserve their defense.

During the nine years in which the matter was pending in the district court the defendants never brought these objections to the attention of the district court. Defendants moved for summary judgment asking the district court to decide the case on its merits. They failed to assert the defense in their "Proposed Final Order and Decree." It is a well-settled rule that a party opposing a summary judgment motion must inform the trial judge of the reasons, legal or factual, why summary judgment should not be entered. If it does not do so, and loses the motion, it cannot raise such reasons on appeal. Frank C. Bailey Enterprises, Inc. v. Cargill, Inc., 582 F.2d 333, 334 (5th Cir.1978); Crompton-Richmond Co., Inc.--Factors v. Smith, 392 F.2d 577, 577-78 (3d Cir.1967); Edward B. Marks Music Corp. v. Continental Record Co., 222 F.2d 488, 492 (2d Cir.), cert. denied, 350 U.S. 861, 76 S.Ct. 101, 100 L.Ed. 764 (1955).

This holding is particularly just in this case because the purposes of the filing requirement, to give prompt notice to the employer and to give the employer an opportunity to voluntarily comply with Title VII, were certainly satisfied by these plaintiffs. Defendants do not contend that they failed to receive timely notice of the alleged violations, that they had insufficient opportunity to voluntarily comply with Title VII, or that the substance of any of the Title VII filing requirements was not met. The original charge notified defendants that it was filed on behalf of the class and sought relief for the entire class. Defendants' objection to the original charge because it named the offending governmental entities surely elevates form over substance and is contrary to Zipes. See also Kaplan v. International Alliance of Theatrical & Stage Employees, 525 F.2d 1354, 1359 (9th Cir.1975) (It is sufficient that the EEOC be apprised, in general terms, of the alleged discriminating party.). Equally frivolous is defendants' contention that the federal court is ousted of jurisdiction because the record does not contain a copy of the original charge. On the basis of the documents in the record, there is no question that a timely charge was filed.

As to plaintiffs' challenge to the original charge because it was filed by Liberles, the law is clear that an organization may file a charge on behalf of its members and those members may seek relief in the federal courts.

Title VII does not require that as a prerequisite to suit an individual alleging discrimination must first file a complaint. Instead, the statutory language speaks of a charge filed by or on behalf of a person claiming to be aggrieved (42 U.S.C. Sec. 2000e-5(b)) (emphasis added) and states that a civil action may be brought by the person aggrieved (Sec. 2000e-5(f)(1)).

Eichman v. Indiana St. Univ. Bd. of Trustees, 597 F.2d 1104, 1108 (7th Cir.1979). See also EEOC v. Rinella & Rinella, 401 F.Supp. 175, 182-83 (N.D.Ill.1975). The technicality that Liberles was named in the complaint cannot obscure the fact that the district court properly acted only upon the claims of the aggrieved employees for relief.

Defendants also object to the jurisdiction of the district court under 42 U.S.C. Sec. 1983 (1976). Section 1983, of course, is not a jurisdictional statute. In any case, relief was granted under Title VII upon claims over which the district court had jurisdiction, and this objection is irrelevant.

II

We next address defendants' arguments that class certification was improper. Defendants assert that at the time of certification the claims of at least some of the class members were moot. During the pendency of this suit some class members received some prospective relief in the form of promotions. The plaintiffs, however, maintained that this relief was inadequate, and, indeed, the final decree contains the requested injunctive relief. Obviously, plaintiffs' claims for injunctive relief were not moot at the time of certification.

Defendants also assert that plaintiffs' claims for backpay were moot at the time of...