Bauman v. Union Oil Company

• Decision Date: 18 July 1973
• Docket Number: No. C-73 0350 ACW.,C-73 0350 ACW.
• Citation: 400 F. Supp. 1021
• Parties: Holly W. BAUMAN, etc., Plaintiff, v. UNION OIL COMPANY, Defendant.
• Court: U.S. District Court — Northern District of California

400 F. Supp. 1021

Holly W. BAUMAN, etc., Plaintiff, v. UNION OIL COMPANY, Defendant.

No. C-73 0350 ACW.

United States District Court, N. D. California.

July 18, 1973.

Mary C. Dunlap, Equal Rights Advocates, Davis, Dunlap & Williams, San Francisco, Cal., for plaintiff.

Robert S. Daggett, Brobeck, Phleger & Harrison, San Francisco, Cal., for defendant.

ORDER DENYING DEFENDANT'S MOTION TO DISMISS AND GRANTING PLAINTIFF'S MOTION TO SUPPLEMENT THE COMPLAINT

WOLLENBERG, District Judge.

I

The complaint in this action sets forth four causes of action under Title VII of the Civil Rights Act of 1964 and the Equal Employment Opportunity Act of 1972, 42 U.S.C. § 2000e et seq. The first cause of action alleges unlawful discrimination on the basis of sex. Plaintiff alleges that defendant's maternity leave policy requires women employees to take unpaid leaves of absence before their doctors recommend that they stop working, and to remain on unpaid leave status for an undue length of time after their children are born. Plaintiff states this claim on behalf of herself and a class of persons similarly situated.

Plaintiff's other causes are individual. The second alleges that defendant has discriminated against plaintiff by failing to promote and fairly compensate her because of her sex, and because plaintiff had filed charges of sex discrimination against defendant with the Equal Employment Opportunities Commission (the Commission), which were referred by the Commission to the California Fair Employment Practices Commission (FEPC). The third cause of action alleges that defendant harassed plaintiff while she was in its employ. The fourth cause of action alleges that defendant unlawfully discharged plaintiff "on account of her sex and on account of her filing of charges of sex discrimination against defendant . . . ."

The action is presently before the Court on defendant's motion to dismiss for lack of subject matter jurisdiction, and plaintiff's motion for leave to supplement the complaint pursuant to Rule 15(d) of the Federal Rules of Civil Procedure to allege that a right to sue letter has been issued by the Commission with respect to the fourth cause of action. Although defendant initially contested plaintiff's motion to supplement (See Defendant's Memorandum in Opposition to Motion, filed May 18, 1973) it now apparently concedes that amendment would be appropriate if plaintiff prevails on the other jurisdictional issues. (See Reply of Defendant, filed July 3, 1973, p. 4, n. 3.) The Court agrees that plaintiff's motion should be granted provided our jurisdiction is otherwise proper. Henderson v. Eastern Freightways, Inc., 460 F.2d 258 (4th Cir. 1972).

In order to analyze the jurisdictional questions, the chronology of plaintiff's complaints must first be set out.

II

Plaintiff filed her initial charge with the Commission on March 21, 1972, setting forth the substance of the first cause of action in the complaint. The Commission deferred to FEPC pursuant to 42 U.S.C. § 2000e-5(b), amended by Public Law 92-261 (March 24, 1972), and now renumbered as 42 U.S.C. § 2000e-5(c), which provides that no charge may be filed with the Commission until the expiration of sixty days after proceedings have been commenced under state or local law unless such proceedings have been earlier terminated. FEPC attempted unsuccessfully to conciliate the charge, after which the Commission assumed jurisdiction and assigned the reference number TSF2-0888.¹

On November 3, 1973, plaintiff filed a second charge with the Commission, which was ultimately given the number TSF3-0846. This charge alleged the retaliatory and discriminatory actions set forth in the second and third causes of action of the complaint. The Commission referred this charge to FEPC. On December 5, 1972, FEPC wrote to plaintiff to inform her that it would not assume jurisdiction over this charge.²

On January 17, 1973, the Commission issued a right to sue letter to plaintiff covering the charges set forth in TSF2-0888 and TSF3-0846. Plaintiff was discharged sixteen days later on Friday, February 2, 1973. The following Monday she filed her third charge with the Commission, reference number TSF3-1359, alleging that her discharge was in further retaliation for her opposition to defendant's alleged discriminatory practices. On February 6, 1973, the Commission forwarded a copy of TSF3-1359 to FEPC, but rather than defer to it, as in the two prior charges, the Commission asserted its jurisdiction.

On March 1, 1973, an investigator for FEPC wrote to plaintiff inviting her to file a complaint with FEPC with regard to the discharge. Plaintiff refused to do so for reasons set forth in a letter dated March 9, 1973, and attached to the affidavit of Robert Daggett as Exhibit C.

The complaint in this action was filed on March 9, 1973, although plaintiff did not receive a right to sue letter for TSF3-1359 until May 4, 1973. Defendant's motion to dismiss grew out of its opposition to plaintiff's motion for a protective order limiting the scope of examination defendant could conduct during plaintiff's deposition. That question has been postponed by continuing the deposition date pending resolution of the jurisdictional issues.

III

Defendant bases its motion to dismiss on the failure of the Commission to comply with two requirements of § 2000e-5 before issuing the right to sue letters to plaintiff. As indicated above, 42 U.S. C. § 2000e-5(c) provides:

"In the case of an alleged unlawful employment practice occurring in a State . . . which has a State or local law prohibiting the unlawful practice alleged and establishing or authorizing a State or local authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, no charge may be filed under subsection (b) of this section by the person aggrieved before the expiration of sixty days after proceedings have been commenced under the State or local law, unless such proceedings have been earlier terminated . . .."

The procedure utilized by the Commission in the instant case of referring complaints to the FEPC and assuming jurisdiction upon the expiration of sixty days thereafter has been expressly approved by the Supreme Court. Love v. Pullman, 404 U.S. 522, 92 S.Ct. 616, 30 L.Ed.2d 679 (1972). This procedure was followed with respect to the right to sue letter issued on January 17th, but it was not followed with respect to the right to sue letter issued May 4, 1973, covering the alleged retaliatory discharge. Defendant contends that this defect requires dismissal at least of the fourth cause of action.

The law of this Circuit is clear that failure of the Commission to defer a charge pursuant to 42 U.S.C. § 2000e-5(c) constitutes a bar to further action by the complainant in federal court, despite the issuance of a right to sue letter. Dismissal of the action is not warranted, however. In such circumstances, the district court must retain jurisdiction for a time sufficient to allow the Commission to notify the FEPC and to allow the state agency the statutory deferral period in which to act. If the FEPC elects not to act, the district court "may then proceed as the rights of the parties may then appear." Parker v. General Telephone Company of the Northwest, 476 F.2d 595, 596 (9th Cir. 1973), citing Motorola, Inc. v. Equal Employment Opportunity Commission, 460 F.2d 1245, 1246 (9th Cir. 1972).

Plaintiff and the Commission, as amicus curiae, argue that this rule is not applicable to the charges set forth in TSF3-1359.³ They contend that the deferral provisions of § 2000e-5(c) are operable only when the discrimination complained of is unlawful under state law, and when the state agency is empowered to seek relief from such practices. Although it is clear that neither the inadequacy of the state agency's authority to resolve a complaint Crosslin v. Mountain States Telephone and Telegraph Co., 422 F.2d 1028 (9th Cir. 1970), vacated and remanded, 400 U.S. 1004, 91 S.Ct. 562, 27 L.Ed.2d 618 (1971), nor the lack of efforts in a particular case, Pacific Maritime Association v. Quinn, 465 F.2d 108 (9th Cir. 1972), may authorize the Commission to ignore the deferral requirement, if the action complained of is not unlawful, and the state agency consequently does not have jurisdiction to hear the matter, then deferral is not required.

California Labor Code § 1420 (West 1971) sets forth employment practices which are unlawful under state law, including discrimination on the basis of sex in the terms, conditions and privileges of employment. In addition, subsection (e) makes it unlawful:

"For any employer . . . to discharge, expel or otherwise discriminate against any person because he has opposed any practices forbidden under this act or because he has filed a complaint, testified, or assisted in any proceeding under this part."

The actions complained of in TSF3-1359 are thus unlawful under California law except for that portion of the charge alleging discharge in retaliation for complaining to the Commission.⁴

The question remaining is whether FEPC is empowered to enforce § 1420 as to the allegations of the complaint. Labor Code § 1419 (West Supp. 1973) provides that:

"The commission shall have the following functions, powers and duties: . . . (f) To receive, investigate and pass upon complaints alleging discrimination in employment because of race, religious creed, color, national origin, ancestry, or sex."

The powers set forth above are not coextensive with the actions made unlawful in § 1420, since nothing is said with regard to retaliatory discrimination. Since § 1420 does not make retaliation for filing complaints with the Commission unlawful, and since § 1419(f) does not empower the FEPC to investigate or pass upon charges of retaliation for filing complaints with it, FEPC is not a state agency established or authorized to grant or seek relief as to those...