Antonopulos v. Aerojet-General Corporation

• Decision Date: 28 October 1968
• Docket Number: Civ. No. S-588.
• Parties: Bertha E. ANTONOPULOS, Inez M. Beach, Vivian Thacker Goldsmith, Vera C. Greer, Lucille Ida Johnson, and Elsie A. Roberts, Plaintiffs, v. AEROJET-GENERAL CORPORATION, a corporation, and Does I through X, Defendants.
• Court: U.S. District Court — Eastern District of California

295 F. Supp. 1390

Bertha E. ANTONOPULOS, Inez M. Beach, Vivian Thacker Goldsmith, Vera C. Greer, Lucille Ida Johnson, and Elsie A. Roberts, Plaintiffs, v. AEROJET-GENERAL CORPORATION, a corporation, and Does I through X, Defendants.

Civ. No. S-588.

United States District Court E. D. California.

October 28, 1968.

Munger, Tolles, Hills & Rickershauser, Los Angeles, Cal., Fitzwilliam, Memering, Stumbos & DeMers, Sacramento, Cal., James N. Ebright, El Monte, Cal., for Aerojet-General Corp.

Files & McMurchie, Sacramento, Cal., for plaintiffs.

AMENDED MEMORANDUM AND ORDER

MacBRIDE, Chief Judge.

This Memorandum and Order amends the Memorandum and Order filed in this matter on October 28, 1968.

This is an action for injunctions and money damages brought under the Civil Rights Act of 1964, 42 U.S.C.A. §§ 2000e-2 & 2000e-5. Each of the six plaintiffs has alleged that defendant discharged her from her job as a janitor solely because she was a female.

Defendant has made a motion for dismissal for failure to state a claim under Rule 12(b) (6) of the Federal Rules of Civil Procedure. Rule 12(b) provides that if on such a motion

matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.

Both sides have submitted both affidavits and exhibits in support of their positions. Because of the importance of these materials in deciding the legal questions involved, I shall consider them and treat the motion as one for summary judgment.¹

The pertinent facts are as follows. Plaintiffs Antonopulos, Goldsmith, Greer, Johnson and Roberts were discharged from their jobs by defendant on July 26, 1965. On February 8, 1966, plaintiff Goldsmith (maiden name Thacker) filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC). She indicated in her charge the names of the other four abovementioned plaintiffs, but they did not file individual charges nor were they named as co-charging parties. On March 7, 1967, the EEOC filed a decision that reasonable cause existed to believe defendant's actions with respect to Goldsmith and other females similarly situated were in violation of the Civil Rights Act of 1964. Although plaintiffs Greer and Johnson were reinstated to their positions on August 15, 1967, and October 2, 1967, ostensibly as a result of EEOC efforts, the complaint alleges that on November 5, 1967, the EEOC notified each of the five above-mentioned plaintiffs that conciliation efforts had failed² and that under law they had 30 days to institute an action in this court. Such an action was jointly filed by all five on December 4, 1967.

Plaintiff Beach was discharged by defendant on September 9, 1966. She filed a charge with the EEOC on October 5, 1966. On July 26, 1967, the EEOC filed a decision that reasonable cause existed to believe defendant's actions with respect to Beach were in violation of the Civil Rights Act of 1964. On August 15, 1967, plaintiff Beach was reinstated to her former position. On November 5, 1967, the same date that the others were notified, Beach was also notified by the EEOC that further conciliation had failed and that she had 30 days to institute suit. She joined in this suit filed on December 4, 1967, seeking along with Greer and Johnson back pay for the period of the layoff and retirement benefit credit. It does not appear that the other three plaintiffs have returned to work, and they seek higher amounts of damages and injunctions requiring reinstatement.

Defendant's motion to dismiss is based on three³ alleged irregularities in procedure: 1.) Some plaintiffs did not individually file charges under oath with the EEOC; 2.) Some plaintiffs did not file charges with the EEOC within 90 days of the alleged unlawful practice; and 3.) No plaintiff brought this suit within 90 days of the filing of her charge (if any) with the EEOC. Thus, defendant's claim is that all legal prerequisites for this suit have not been met, and it must be dismissed. Plaintiffs assert full compliance with the legal prerequisites.

Plaintiffs Antonopulos, Greer, Johnson and Roberts did not individually and separately file charges against the defendant with the EEOC. Defendant contends that this fact precludes them from maintaining this action. The relevant portion of the statute reads:

If within thirty days after a charge is filed with the Commission * * * the Commission has been unable to obtain voluntary compliance * * * a civil action may * * * be brought against the respondent named in the charge * * * by the person claiming to be aggrieved * * *. (42 U.S. C.A. § 2000e-5(e))

In determining the question of whether each plaintiff must file a separate charge, ascertainment of the purpose and role of the EEOC is essential. Several courts have examined the legislative history on this point. Their conclusions are as follows:

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. Hall v. Werthan Bag Corporation, 251 F.Supp. 184, 188 (M.D. Tenn.1966).

The Congressional desire for Commission conciliation cannot be underemphasized.

The legislative history establishes conclusively and beyond doubt that Congress intended that conciliation be preferred to coercion and that the conciliation step would be a prerequisite to the institution of a civil action under this title.

From the outset and continuously throughout the legislative process which produced this statute, emphasis was placed on the conciliation step and on the fact that enforcement proceedings would not be initiated without an effort having been made to resolve the matter through conciliation.

At an early day in this legislative history, the Report of the House Education and Labor Committee on the bill providing for adjudication by the Commission stated that `It is the intent of the Committee that maximum efforts be concentrated on informal and voluntary methods of eliminating unlawful employment practices before commencing formal procedures' and that `Formal proceedings leading toward an order of the Commission should be pursued only when informal methods fail or appear futile.'

The bill reported by the House Judiciary Committee, providing for adjudication by the district courts, was explained in equally emphatic terms as requiring conciliation before the institution of the civil action. footnotes omitted Dent v. St. Louis-San Francisco Railway Company, 265 F.Supp. 56, 58-59 (N.D.Ala.1967).

It is clear, therefore, that the conciliation step may not be bypassed. What is not clear is the precise formula of events which must transpire before an aggrieved person may bring suit in federal court. There are a number of possibilities. First as to form of complaint: (1) prospective plaintiffs must file individual charges in their own names before the Commission; (2) they may file a charge in the form of a class action; or (3), as here, there may be only one charge which specifically names all aggrieved persons. Second as to Commission action: (1) the Commission must actually make conciliatory efforts, or (2) the Commission need only have the opportunity to conciliate, whether or not it has the manpower or inclination to undertake actual conciliation.

I have concluded that where, as here, someone has filed a charge with the EEOC containing the names of other persons similarly aggrieved, it is not necessary that those persons named file separate charges as a prerequisite to bringing a civil suit. There are few reported cases in this area, and none cited by the parties or discovered by me is precisely in point. Plaintiffs cite cases holding that class actions for an injunction were allowed where each member of the class had not filed separate charges. Moody v. Albemarle Paper Company, 271 F.Supp. 27 (E.D.N.C.1967); Hall v. Werthan Bag Corp., 251 F.Supp. 184 (M.D.Tenn. 1966). Defendant cites cases holding that individual actions for reinstatement and back pay cannot be maintained by persons not filing a charge with the EEOC. Bowe v. Colgate-Palmolive Company, 272 F.Supp. 332 (S.D.Ind.1967); Hall v. Werthan Bag Corp., supra. While this suit is one for reinstatement and back pay, it is distinguishable from those cited by defendant. The cases cited by defendant were true class actions and there was no indication in them that the Commission had ever been informed of all the aggrieved persons' identities. This case is not a true class action but a hybrid. All plaintiffs did not individually file charges with the Commission, but the charge that was filed by one listed the other aggrieved persons by name. The Commission framed its decision in class action language,⁴ but they were not dealing with the usual large, amorphous group. The employees who concerned them were limited in number and individually identified in the Commission's records. Plaintiffs here have never behaved as in the typical class action, the present suit was not brought as a class action, and the plaintiffs should not be penalized because the Commission worded its findings in class action language.

While defendant has not raised the issue of what Commission conciliation was actually undertaken for plaintiffs not filing separate charges, I hold that the Commission had the opportunity to conciliate on their behalf and whether it actually acted during the statutory period for conciliation (42 U.S.C.A. § 2000e-5(e), discussed infra) is irrelevant to their standing to bring suit. Cf. Johnson v. Seaboard Air Line R. R. Co., 405 F.2d 645 (4th Cir., October 29, 1968). My...