Ortega v. Construction & General Lab. U. No. 390

• Decision Date: 06 June 1975
• Docket Number: Civ. No. H-75-95.
• Citation: 396 F. Supp. 976
• Court: U.S. District Court — District of Connecticut
• Parties: Peter ORTEGA v. CONSTRUCTION AND GENERAL LABORERS' UNION NO. 390, et al.

396 F. Supp. 976

Peter ORTEGA v. CONSTRUCTION AND GENERAL LABORERS' UNION NO. 390, et al.

Civ. No. H-75-95.

United States District Court, D. Connecticut.

June 6, 1975.

COPYRIGHT MATERIAL OMITTED

Raphael L. Podolsky, Waterbury, Conn., for plaintiff.

Steven D. Pierce, Hartford, Conn., Donald J. Deneen, Windsor, Conn., for defendant.

RULING ON MOTION TO DISMISS

BLUMENFELD, District Judge.

The defendant union, of which the plaintiff in this Title VII action is a member, has moved to dismiss the plaintiff's case.¹ The dispute here is not complicated: the plaintiff, a Puerto Rican, alleges that his union discriminated against him in various ways because of his race, color, and national origin. To understand the complex procedural history, on the other hand, considerable exposition is desirable.

I.

On November 2, 1973, Ortega filed complaints against his union with both the Connecticut Commission on Human Rights and Opportunities (CHRO)² and the federal Equal Employment Opportunities Commission (EEOC).³ The EEOC deferred consideration of the matter until February 13, 1974, giving the CHRO temporary primary jurisdiction of the matter as required by 42 U. S.C. § 2000e-5(d) (Supp. II, 1972).⁴See Love v. Pullman Co., 404 U.S. 522, 92 S.Ct. 616, 30 L.Ed.2d 679 (1972); Voutsis v. Union Carbide Corp., 452 F. 2d 889 (2d Cir. 1971), cert. denied, 406 U.S. 918, 92 S.Ct. 1768, 32 L.Ed.2d 117 (1972). On September 23, 1974, the CHRO dismissed Ortega's charge for "lack of sufficient evidence." Ortega's request for reconsideration of this disposition was denied by a letter dated November 8, 1974. On December 19, 1974, the EEOC gave Ortega a right-to-sue letter pursuant to 42 U.S.C. § 2000e-5(f)(1) (Supp. II, 1972).⁵ Ortega's complaint in this court was filed on March 19, 1975.

One factor complicating this suit is Ortega's filing of a second set of charges with the EEOC and CHRO on September 24, 1974.⁶ The union argues that this evidences an election by Ortega to continue pursuit of his remedies in administrative bodies that precludes maintenance of this suit. There is, however, no "election of remedies" doctrine in Title VII cases; a plaintiff may seek to vindicate his rights before as many bodies as have jurisdiction to help him. See Voutsis v. Union Carbide Corp., 452 F.2d 889 (2d Cir. 1971), cert. denied, 406 U.S. 918, 92 S.Ct. 1768, 32 L.Ed.2d 117 (1972).

The defendant's alternative argument is that the second set of charges is, in effect, an amendment or request for reconsideration of the first set. Because the second set is still pending before the CHRO and EEOC, the union concludes that none of the charges have yet been "exhausted" before the administrative agencies and that this suit should therefore be dismissed. This argument too misses the point. Title VII does not require a complete exhaustion of available remedies; it only requires the degree of exhaustion mandated by the statute. As to the first set of charges, the statute has been fully complied with: a charge was filed before the CHRO; the EEOC deferred to it for at least 60 days; after waiting 180 days beyond the end of that period of deference the EEOC issued a right-to-sue letter; there is no challenge to the timeliness of Ortega's subsequent complaint in this court. See 42 U.S.C. § 2000e-5(c)-(d), -(f)(1) (Supp. II, 1972). The union has challenged the timeliness of Ortega's filing before the administrative bodies; for reasons explained in Part II of this opinion, those challenges are rejected. Ergo, whether or not Ortega has fully exhausted his administrative remedies, he has fulfilled the statutory requirements for suit on his charges of November 2, 1973.

The second set of charges stand in a different posture, however. The plaintiff has not yet obtained a right-to-sue letter from the EEOC on his second charge and thus may not treat the procedures followed with respect to that charge as meeting the statutory exhaustion requirement. The remaining question, therefore, is whether the scope of the issues raised by the complaint is limited to the scope of the first EEOC charge.

In determining whether particular allegations in a complaint are sufficiently related to the allegations in an EEOC charge as to which there has been sufficient exhaustion, courts have used two similar standards. One is that the judicial proceedings may encompass any discrimination like or reasonably related to that alleged in the EEOC charge, including new acts occurring during pendency of the EEOC charge. See, e. g., Alpha Portland Cement Co. v. Reese, 507 F.2d 607 (5th Cir. 1975); Oubichon v. North American Rockwell Corp., 482 F.2d 569 (9th Cir. 1973); Willis v. Chicago Extruded Metals Co., 375 F.Supp. 362 (N.D.Ill.1974); Russell v. American Tobacco Co., 374 F.Supp. 286 (M.D.N.C.1973); Hecht v. CARE, Inc., 351 F.Supp. 305, 311-312 (S.D.N. Y.1972). The other standard, which may in fact be no different, is that the court proceedings may include everything within the scope of the EEOC investigation that might reasonably be expected to grow out of the charges. See, e. g., Tipler v. E. I. duPont deNemours & Co., 443 F.2d 125, 131 (6th Cir. 1971); Sanchez v. Standard Brands, Inc., 431 F.2d 455 (5th Cir. 1970). The expectable scope of the EEOC investigation is very broad, apparently including, inter alia, new acts occurring during the pendency of the EEOC charges. See, e. g., EEOC v. Huttig Sash & Door Co., 511 F.2d 453 (5th Cir. 1975). It does not make any difference which standard is used here, for the complaint satisfies both. The essence of Ortega's first EEOC charge is that the union discriminates against Puerto Ricans and retaliates against those who bring such discrimination to the attention of the CHRO. See note 3 supra. This is also the essence of Ortega's complaint here.⁷ The fact that the complaint spells out the union's alleged sins in greater detail is not a variance fatal to this action; indeed, it is entirely expectable:

"To compel the charging party to specifically articulate in a charge filed with the Commission the full panoply of discrimination which he may have suffered may cause the very persons Title VII was designed to protect to lose that protection because they are ignorant of or unable to thoroughly describe the discriminatory practices to which they are subjected. . . ."

Willis v. Chicago Extruded Metals Co., 375 F.Supp. 362, 365 (N.D.Ill.1974).

The breadth of the standards used leads to an interesting result in this case: it appears that the charges made in September 1974 are sufficiently related to the November 1973 charges to be litigated here.

"To force an employee to return to the EEOC every time he claims a new instance of discrimination in order to have the EEOC and the courts consider the subsequent incidents along with the original ones would erect a needless procedural barrier. . . ."

Id. Thus the September 1974 charges were, for purposes of this lawsuit, surplusage.

II.

The defendant also argues that the statute of limitations for filing claims before the EEOC was not satisfied, as it must be if suit is later to be brought. See, e. g., Moore v. Sunbeam Corp., 459 F.2d 811 (7th Cir. 1972). The November 1973 charge referred to an incident the union identifies as having occurred in March 1973, somewhat more than 200 days earlier. As the union assumes that the applicable limitations period is 180 days, it claims that the suit must be dismissed for failure to track the statute. The plaintiff points out, however, that the statute is more complex than the defendant has assumed. Title 42 U.S.C. § 2000e-5(e) (Supp. II, 1972) provides a 300-day limitations period for complaints to be filed before the EEOC when there is a state agency such as the CHRO in the picture.

This does not end the argument, however. The defendant alleges that the charge filed in November 1973 with the CHRO was untimely. Cf. Conn.Gen. Stat.Ann. § 31-127 (Supp.1975). However the defendant does not cite any authority to support this as a basis for dismissal of Ortega's case. There is no explicit requirement in Title VII that the state procedure be timely invoked in order to preserve access to the courts. A requirement of timely filing before the state agency might be found to be implicit in Title VII's command that adequate state remedial procedures first be utilized, however. Cf. Richardson v. Miller, 446 F.2d 1247 (3d Cir. 1971). But in this case the underlying policies of Title VII have been fully effectuated: the CHRO considered Ortega's complaint on the merits and acted as it would have with respect to a timely filed charge. See p. 540 supra. Thus there is no point in implying a requirement of timely filing with the CHRO in this case.

There is one further issue arising (although not raised by the defendant) from the alleged untimeliness of Ortega's complaint to the CHRO. One court has found that timely filing before the appropriate state agency is necessary, not for its own sake, but in order to make the 300-day federal limitations period applicable. See Olson v. Rembrandt Printing Co., 375 F.Supp. 413 (E. D.Mo.1974). I am not persuaded to follow that view. Title 42 U.S.C. § 2000e-5(e) (Supp. II, 1972) provides in part that

"in a case of an unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings with a State or local agency with authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, such charge shall be filed by or on behalf of the person aggrieved within three hundred days after the alleged unlawful employment practice occurred, or within thirty days after receiving notice that the State or local agency has terminated the proceedings under the State or local law, whichever is earlier . . .."

If the CHRO finds that it lacks the authority referred to in the statute by reason of failure of the complainant to comply with the state...