Berg v. Richmond Unified School Dist.

• Decision Date: 09 December 1975
• Docket Number: No. 74--1457,74--1457
• Parties: 11 Fair Empl.Prac.Cas. 1285, 10 Empl. Prac. Dec. P 10,553 Sonja Lynn BERG, individually and on behalf of all other female employees of the Richmond Unified School District, Plaintiff-Appellee, v. RICHMOND UNIFIED SCHOOL DISTRICT et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1208

528 F.2d 1208

11 Fair Empl.Prac.Cas. 1285,

10 Empl. Prac. Dec. P 10,553

Sonja Lynn BERG, individually and on behalf of all other female employees of the Richmond Unified School District, Plaintiff-Appellee, v. RICHMOND UNIFIED SCHOOL DISTRICT et al., Defendants-Appellants.

No. 74--1457.

United States Court of Appeals Ninth Circuit.

Dec. 9, 1975.

Arthur W. Walenta, Jr., Asst. County Counsel (argued), Martinez, Cal., for defendants-appellants.

Mary C. Dunlap (argued), Dunlap, Davis & Williams, San Francisco, Cal., for plaintiff-appellee.

OPINION

Before MERRILL and KOELSCH, Circuit Judges, and SMITH, ^* District Judge.

KOELSCH, Circuit Judge:

When plaintiff Berg, a school teacher employed by defendant Richmond Unified School District, became pregnant, the defendants--the School District and its officers--acting pursuant to a district policy relating solely to pregnant employees, ¹ threatened to (1) require her to cease working on a date earlier than she and her physician believed necessary and (2) deny her the benefit of accumulated sick leave pay while she was not working. Thereafter, in the fifth month of her pregnancy, plaintiff filed with the Equal Employment Opportunity Commission (EEOC) a charge of discrimination based on sex.

About two months later, plaintiff requested the EEOC to issue her a 'right to sue' letter. ² She waited in vain for about a month and then commenced this class action in the district court under the purported authority of the Civil Rights Act of 1871, 42 U.S.C. § 1983, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the fourteenth amendment to the federal constitution. At the same time, she secured a preliminary injunction staying the defendants from their threatened action. Shielded by this order, she continued to teach until the day before her child was born. Meantime, the EEOC did issue its letter, and plaintiff duly supplemented her complaint. Ultimately, the district court granted plaintiff summary judgment on the Title VII claim, certified a class, issued a permanent injunction against the defendants, and allowed plaintiff attorney's fees. ³ The appeal followed. We affirm.

Defendants' initial contention, that the district court lacked subject matter jurisdiction because no 'right to sue' letter had issued at the time of the commencement of the action, is without merit. Putting aside for a moment discussion of the district court's jurisdiction over the Title VII claim upon which permanent injunctive relief was ultimately predicated, we are clear that the district court possessed independent subject matter jurisdiction to reach the question of preliminary injunctive relief under 28 U.S.C. § 1343(3), based on plaintiff's § 1983 claim that she was deprived of her rights to due process and equal protection of the laws. ⁴

Section 1343(3) grants the district courts original jurisdiction of civil actions

'(nt)o redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States . . ..'

Because plaintiff's § 1983 claim falls within the scope of this language, 'Section 1343(3) . . . conferred jurisdiction upon the District Court to entertain the constitutional claim if it was of sufficient substance to support federal jurisdiction.' Hagans v. Lavine, 415 U.S. 528, 536, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974). See Bell v. Hood, 327 U.S. 678, 682--683, 67 S.Ct. 773, 90 L.Ed. 939 (1946); Holder v. Nelson, 514 F.2d 1091, 1092 (9th Cir. 1975).

Applying the test of Goosby v. Osser, 409 U.S. 512, 518, 93 S.Ct. 854, 35 L.Ed.2d 36 (1973), as further elucidated in Hagans, supra, 415 U.S. at 536--543, 94 S.Ct. 1372, we conclude that plaintiff's § 1983 due process and equal protection claims were not 'so utterly devoid of merit as to deprive the district court of its jurisdiction under § 1343.' Holder v. Nelson,supra, 514 F.2d at 1092. ⁵

Moreover, it appears to us that the district court had subject matter jurisdiction under Title VII itself to reach the merits of the preliminary injunction issue. In a limited class of cases such as this one, in which there exist both a high probability of the claimant's ultimate success on the merits and the threat of irreparable injury of the sort which the Act seeks to avoid, a Title VII claimant may personally bring suit to maintain the status quo pending disposition by the EEOC of the underlying charge of discrimination. See Drew v. Liberty Mutual Insurance Co., 480 F.2d 69, 72--76 (5th Cir. 1973); Culpepper v. Reynolds Metals Company, 421 F.2d 888, 893--895 (5th Cir. 1970); Note, Developments in the Law--Employment Discrimination and Title VII of the Civil Rights Act of 1964, 84 Harv.L.Rev. 1109, 1256--1259 (1971). ⁶

And finally, the later issuance of the 'right to sue' letter coupled with the filing of the supplemental complaint operated to cure any initial jurisdictional defect. Henderson v. Eastern Freight Ways, Inc., 460 F.2d 258, 260 (4th Cir. 1972), cert. denied, 410 U.S. 912, 93 S.Ct. 976, 35 L.Ed.2d 275 (1973); Jones v. United Gas Improvement Corporation, 383 F.Supp. 420, 424 (E.D.Pa.1974); Dodge v. Giant Food, Inc., 3 E.P.D. P8184 (D.D.C1971), aff'd, 160 U.S.App.D.C. 9, 488 F.2d 1333 (1973).

True, such letters have often been characterized a 'jurisdictional prerequisite' to a lawsuit under Title VII. See, e.g., McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). However, we read this statutory requirement in the light of the well-established principle that procedural niceties should not be employed to impede a Title VII claimant from obtaining a judicial hearing on the merits. See Jones, supra; Shaffield v. Northrop Worldwide Aircraft Services, Inc., 373 F.Supp. 937, 940 (M.D.Ala., S.D.1974); and cases cited therein. Cf. Davis v. Valley Distributing Company, 522 F.2d 827, 831--832 (9th Cir. 1975). As noted in Beverly v. Lone Star Lead Construction Corporation, 437 F.2d 1136, 1140 (5th Cir. 1971), '(t)he sole purpose of this requirement is to provide a formal notification to the claimant that his administrative remedies with the Commission have been exhausted.' Cf. Stone v. E.D.S. Federal Corporation, 351 F.Supp. 340, 343 (N.D.Cal.1972). Under the circumstances here presented--where the district court initially had independent subject matter jurisdiction and where plaintiff had requested the letter--requiring her to commence a new action would be a pointless exercise in formalism.

Turning now to the merits of the Title VII claim, we note that 42 U.S.C. § 2000e--2 broadly outlaws discrimination in employment based on sex. ⁷ Whether this section prohibits the district policy here under attack is of course a question of statutory interpretation, not one of constitutional analysis. Hutchison v. Lake Oswego School District No. 7, 519 F.2d 961, 964 (9th Cir. 1975); Wetzel v. Liberty Mutual Insurance Company, 511 F.2d 199, 203 (3d Cir. 1975), cert. granted, 421 U.S. 987, 95 S.Ct. 2415, 44 L.Ed.2d 679 (1975). ⁸

The defendants take the position that the interim maternity leave policy does not violate § 2000e--2 because the policy establishes no sex-based classification--i.e., it is applicable only to pregnant women, not all women. This contention does have a surface appeal when considered against the background of the Supreme Court's dictum in 'footnote 20' of Geduldig v. Aiello, 417 U.S. 484, 496 n. 20, 94 S.Ct. 2485, 41 L.Ed.2d 256 (1974), ⁹ but it is foreclosed by our recent decision in Hutchison, supra. We therefore reject it.

In Hutchison, we held that a school district's exclusion of pregnancy- or childbirth-related disabilities from sick leave coverage was a Title VII violation. In reaching that conclusion, we accorded 'great deference,' consistent with the teachings of Griggs v. Duke Power Co., 401 U.S. 424, 433--434, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), to the EEOC's interpretation of Title VII as expressed in the relevant guideline promulgated by the agency. ¹⁰ Other circuits have similarly regarded and followed that guideline. See Satty v. Nashville Gas Company, 522 F.2d 850, 855, No. 75--1083 (6th Cir. 1975); Gilbert v. General Electric Company, 519 F.2d 661, 664, No. 74--1557 (4th Cir. 1975), cert. granted, 423 U.S. 822, 96 S.Ct. 36, 46 L.Ed.2d 39 (1975); Holthaus v. Compton & Sons, Inc., 514 F.2d 651, 653 (8th Cir. 1975); Communication Workers v. American Telephone and Telegraph Company, 513 F.2d 1024, 1030--1031 (2d Cir. 1975); Wetzel, supra, 511 F.2d at 206--207; Farkas v. South Western City School District, 506 F.2d 1400 (6th Cir. 1974), aff'g 8 FEP Cases 288 (S.D.Ohio 1974). See also Sale v. Waverly-Shell Rock Board of Education, 390 F.Supp. 784, 787--788 (N.D.Iowa 1975); Vineyard v. Hollister School District, 64 F.R.D. 580, 585 (N.D.Cal.1974).

Hutchison manifests the conclusion that the district policy violates Title VII not only in respect to its denial of sick leave pay during pregnancy-occasioned absences but also in respect to its compulsion of pregnancy leave in the district's discretion. The agency guideline relied on in Hutchison interprets the statute as requiring 'employment policies and practices involving matters such as the commencement and duration of leave (and) the availability of extensions . . . shall be applied to disability due to pregnancy or childbirth on the same terms and conditions as they are applied to other temporary disabilities.' We are unable to say that 'application of the guideline would be inconsistent with an obvious congressional intent not to reach the employment practice in question,' see Hutchison, supra, 519 F.2d at 965 (quoting Espinoza v. Farah Manufacturing Co., Inc., 414 U.S. 86, 94, 94 S.Ct. 334, 339, 38 L.Ed.2d 287 (1973)).

Plaintiff has moved for the...