Barela v. United Nuclear Corporation

• Decision Date: 20 July 1972
• Docket Number: No. 71-1262 and 71-1263.,71-1262 and 71-1263.
• Citation: 462 F.2d 149
• Parties: Nazario BARELA, Plaintiff-Appellee (Cross-Appellant), v. UNITED NUCLEAR CORPORATION, Defendant-Appellant (Cross-Appellee).
• Court: U.S. Court of Appeals — Tenth Circuit

462 F.2d 149 (1972)

Nazario BARELA, Plaintiff-Appellee (Cross-Appellant), v. UNITED NUCLEAR CORPORATION, Defendant-Appellant (Cross-Appellee).

Nos. 71-1262 and 71-1263.

United States Court of Appeals, Tenth Circuit.

June 9, 1972.

Rehearing Denied July 20, 1972.

Jim Heidelberg, San Antonio, Tex. (Mario Obledo and Ed Idar, Jr., Mexican-American Legal Defense and Educational Fund, San Antonio, Tex., and Raymond G. Sanchez, Albuquerque, N. M., on the brief), for plaintiff-appellee (cross-appellant).

Leonard L. Pickering, Albuquerque, N. M., for defendant-appellant (cross-appellee).

Charles L. Reischel, Atty., EEOC (John de J. Pemberton, Jr., Acting Gen. Counsel, and Julia P. Cooper, Chief, Appellate, EEOC, on the brief), for EEOC as amicus curiae.

Before LEWIS, Chief Judge, DOYLE, Circuit Judge, and WINNER, District Judge.^*

WILLIAM E. DOYLE, Circuit Judge.

In this employment discrimination case United Nuclear Corporation, defendant-appellant, seeks reversal of a money judgment against it in the amount of $4,719.55, which sum represents the amount found by the court to constitute plaintiff's lost wages. In its decision the district court found that appellee was a qualified applicant for an available job and further found that employment had been denied solely on the basis that appellee had filed a charge with the E.E.O.C. against a former employer. The court concluded in its opinion¹ that appellant had violated 42 U.S.C. § 2000e-3(a) which forbids discrimination resulting from an employee's opposition to any practice constituting an unlawful employment practice or stemming from his having made a charge, or having testified or participated in an investigation.²

On this appeal defendant-appellant, United Nuclear Corporation, contends that the jurisdictional requisites were not fulfilled under several sections of Title VII of the Civil Rights Act of 1964 and that the trial court's findings were not supported by the evidence.

Plaintiff-appellee has filed a cross-appeal questioning the trial court's ruling at the pretrial conference which struck the class action; the cross-appeal also seeks an injunction against United Nuclear restraining it from pursuing this conduct against other employees in the future. The trial court's award of attorney's fees is also attacked.

On November 9, 1967, plaintiff applied to United Nuclear for employment. The superintendent told him that a position as trip-rider³ was open and referred him to the personnel manager, Ben Ferren, for the processing of his application. In the course of the plaintiff's interview the personnel manager ascertained that plaintiff had been recently employed by Kermac Nuclear Fuels which operated, as did the defendant, in the area of Grants, New Mexico. At this point Ferren left the room and contacted Kermac and was told that plaintiff had a Title VII charge pending against Kermac. As a result of this information Ferren told plaintiff that his application could not be processed. The evidence at this point was in conflict as to the exact conversation; Ferren stated that plaintiff was told that he could not be considered because the employment was necessarily temporary since he was prosecuting the claim, which sought reinstatement along with other relief, but plaintiff testified that no mention was made as to his rejection being based on his seeking temporary employment.

That afternoon, following a conference with the E.E.O.C. attorney, plaintiff returned and inquired of Ferren as to whether he could have the job if he dropped his charge against Kermac. The answer was that Ferren could not give plaintiff advice as to dropping the charge but that he would be eligible for hire "when his problems were settled there and he was no longer entangled in any manner."

Plaintiff thereupon filed a charge with the E.E.O.C. alleging refusal to hire arising from his having filed a charge against his former employer. A copy of this was sent to the New Mexico Fair Employment Commission, which agency returned it three days later stating that it did not intend to pursue the matter because of its heavy work load. This somewhat shortcut procedure was pursuant to an agreement between the New Mexico Labor Commissioner and the Area Director of E.E.O.C.

It was stipulated that plaintiff was unemployed when he contacted United Nuclear. The defense of United Nuclear was based on its assertion that it desired only permanent employees and that it had rejected plaintiff on that account. The trial court found that if the case were dependent on the conversation in the morning, that it might support the defendant's theory that the plaintiff was seeking temporary employment. The court went on to say, however, that the afternoon conversation made clear that plaintiff was seeking permanent employment, whereby defendant could no longer believe that if he were hired plaintiff would continue to prosecute his claim against Kerr-McGee.⁴

I. JURISDICTIONAL REQUISITES

United Nuclear's contentions that the filing procedure was defective in that plaintiff did not personally file a charge with the New Mexico Commission and that the referral process failed to satisfy the spirit of the Act of Congress in that it was a sham are fully answered by the Supreme Court's recent decision in Love v. Pullman, 404 U.S. 522, 92 S. Ct. 616, 30 L.Ed.2d 679 (1972). The Supreme Court held that the filing procedure followed in that case was sufficient. It said:

* * * Nothing in the Act suggests that the state proceedings may not be initiated by the EEOC acting on behalf of the complainant rather than by the complainant himself, nor is there any requirement that the complaint to the state agency be made in writing rather than by oral referral. Further, we cannot agree with the respondent\'s claim that the EEOC may not properly hold a complaint in "suspended animation," automatically filing it upon termination of the state proceedings.

We see no reason why further action by the aggrieved party should be required. * * * To require a second "filing" by the aggrieved party after termination of state proceedings would serve no purpose other than the creation of an additional procedural technicality. * * *

404 U.S. at 525-526, 92 S.Ct. at 618.

The New Mexico Commission in this case was apprised of the charge whereby it could take action if it chose to do so, and E.E.O.C. accepted the case for processing only after the state had had its opportunity to pursue it. Therefore, the spirit of 42 U.S.C. § 2000e-5(b) was satisfied.

There is an additional reason why the E.E.O.C. could have taken jurisdiction without resorting to the deferral provisions of § 2000e-5. New Mexico law did not recognize a violation based upon the activating of the E.E.O.C. process as such. Accordingly, this jurisdictional contention of United Nuclear is lacking in merit.

II. SUFFICIENCY OF THE EVIDENCE

Factually the case boils down to United Nuclear's agent, Ferren, telling the plaintiff that notwithstanding his qualifications for the vacancy his application could not be processed until there was no longer a dispute between him and Kerr-McGee. The trial court was faithful to the evidence and legally correct in recognizing that the filing of a charge is a protected right under the Act and that conduct infringing the right is a violation of the Act. Pettway v. American Cast Iron Pipe Company, 411 F.2d 998, 1005 (5th Cir. 1969), reh. den. 415 F.2d 1376 (1969). With respect to the asserted need for permanent employees and its relation to the need for refusing employment to Title VII claimants, the business necessity defense of United Nuclear was not established. See Griggs v. Duke Power Company, 401 U.S. 424, 91 S.Ct. 849, 29 L.Ed.2d 158 (1971).⁵ In sum, the trial court's finding was not clearly erroneous. See Culpepper v. Reynolds Metals Company, 442 F.2d 1078, 1080 (5th Cir. 1971).

III. THE CLASS ACTION ISSUE

The plaintiff's amended complaint alleged that defendant was maintaining a policy of practice of discrimination against employees and applicants who file charges with the E.E.O.C. On that basis plaintiff sought to represent a class composed of "all employees and prospective employees who are, have been, or might be refused employment on these grounds." Money damages were not sought. The prayer on behalf of the class was for an injunction prohibiting defendant from future discrimination together with a declaratory judgment stating that defendant had engaged in such a practice.

The district court's order striking the class action allegation did not give reasons other than that it was "not properly a class action."⁶ Plaintiff now urges that this was error, and the E.E.O.C. has filed a brief in support of this cross-appeal.

The arguments advanced by United Nuclear in support of the trial court's action are 1) that the class action allegation must be included in the original charge filed with the E.E.O.C., and 2) that there was no class which the plaintiff could represent — that there was a failure to show that there had been other specific instances of similar illegal practices by defendant in the past or that others had made similar charges against the defendant.

A. ALLEGED NECESSITY FOR A CLASS MEMBER TO HAVE FILED AN E.E.O.C. CHARGE

It was held in Oatis v. Crown Zellerbach Corporation, 398 F.2d 496, 498-499 (5th Cir. 1968) that once a basic complaint has been processed administratively, a class action can be maintained even though the class members had not processed their individual complaints through the E.E.O.C. The reasons given by the court were that the objects of Title VII are frequently realized through the class action in order to not only redress the individual complaint but to prevent present and future violations. Thus it was recognized that the court's jurisdiction to proceed with a class action was founded on the original charge and that other members were not required to pursue and exhaust administrative procedures as...