Bremer v. St. Louis Southwestern Railroad Company

• Decision Date: 23 December 1969
• Docket Number: No. 69 C 1(1).,69 C 1(1).
• Citation: 310 F. Supp. 1333
• Parties: Mary A. BREMER, Plaintiff v. ST. LOUIS SOUTHWESTERN RAILROAD COMPANY, Defendant.
• Court: U.S. District Court — Eastern District of Missouri

310 F. Supp. 1333

Mary A. BREMER, Plaintiff v. ST. LOUIS SOUTHWESTERN RAILROAD COMPANY, Defendant.

No. 69 C 1(1).

United States District Court, E. D. Missouri, E. D.

December 23, 1969.

Husch, Eppenberger, Donohue, Elson & Cornfeld, Stephen W. Skrainka and Thomas M. Carney, St. Louis, Mo., for plaintiff.

Alan C. Kohn, Coburn, Croft, Kohn & Herzog, St. Louis, Mo., for defendant.

MEMORANDUM OPINION AND ORDER

HARPER, Chief Judge.

Plaintiff brings this suit for injunctive relief and damages pursuant to 28 U.S.C.A. § 1343, alleging that her statutory right to be free from discrimination in employment because of her sex under Title VII of the Civil Rights Act of 1964 (the Act), 42 U.S.C.A. § 2000e-5(e) and (f) has been violated. This matter is presently before the court on motion by the defendant, St. Louis Southwestern Railroad Company (Railroad), to dismiss or in the alternative for summary judgment. Defendant asserts several grounds in support of its motion which basically presents two contentions: One, that this court lacks jurisdiction because plaintiff failed to exhaust administrative remedies under her collective bargaining agreement and the Railway Labor Act, 45 U.S. C.A. § 153; and two, that this court lacks jurisdiction because plaintiff failed to comply with 42 U.S.C.A. § 2000e-5(a) and (b) requiring timely filing of a charge of unlawful employment practice in writing, under oath, with the Federal Equal Employment Opportunity Commission (EEOC) as a prerequisite to the institution of a civil suit.

Plaintiff's amended complaint alleges the following facts: Plaintiff obtained initial seniority under defendant's agreement with the Order of Railroad Telegraphers on October 1, 1943, and from that date to the present has worked as a telegrapher, clerk-telegrapher, agent and agent-telegrapher for defendant. Plaintiff is presently an agent-telegrapher at Caruthersville, Missouri. In March, 1966, defendant sought bids for the position of Clerk-Telegrapher "ST" at the St. Louis General Office in St. Louis, Missouri. Plaintiff bid on that position and was senior bidder in amount of seniority. On April 8, 1966, the position was awarded to a male applicant with seniority dating from August 7, 1955.

On April 23, 1966, plaintiff lodged a charge in the form of a letter with the EEOC in Washington, D. C., alleging that she was denied the position because of discrimination on account of her female sex. On May 4, 1966, plaintiff's charge was referred to and filed with the Missouri Commission on Human Rights at Jefferson City, Missouri. On September 2, 1966, plaintiff requested the EEOC to proceed to determine her case. Plaintiff filed an amended charge on November 16, 1966. On September 1, 1967, the Missouri Commission advised plaintiff that the state investigation had terminated with a finding of no probable cause and that a request for reconsideration could be made within thirty days. On April 1, 1968, the EEOC determined that reasonable cause did exist, and on December 3, 1968, advised plaintiff that efforts at conciliation of her charge had failed. Thereafter, on January 2, 1969, plaintiff filed her complaint in the present action.

Defendant's primary contention is that plaintiff's suit is barred because she failed to exhaust contractual and administrative remedies available under the Railway Labor Act.

Section 3, First (i) of the Railway Labor Act, 45 U.S.C.A. § 153, First (i) provides:

"The disputes between an employee * * * and a carrier * * * growing out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions, * * * shall be handled in the usual manner up to and including the chief operating officer of the carrier designated to handle such disputes; but, failing to reach an adjustment in this manner, the disputes may be referred * * * by either party to the appropriate division of the Adjustment Board * * *."

Plaintiff and defendant are parties and subject to the labor agreement between defendant and its employees represented by the Order of Railroad Telegraphers, of which Article 13-1 provides in part:

"13-1. Except as per Article 13-2 permanent vacancies and permanent additional positions shall be bulletined to all employees on the division; bulletin to show location, position, hours of service and rate of pay and the senior employee covered by this agreement making written application within ten (10) days from date of bulletin, if competent, shall be assigned."

Defendant contends that Article 13-1 means that a refusal to assign because of plaintiff's female sex would be a violation of the Agreement. In that event, Article 27, as amended in 1954, of the Agreement provides that an employee who has a grievance is entitled to a hearing and succeeding appeals up to and including appeal to and hearing by the National Railroad Adjustment Board under the provisions of the Railway Labor Act, 45 U.S.C.A. § 151 et seq.

The Federal law pertaining to exhaustion of remedies is clear in cases where an employee asserts a contract grievance or minor labor dispute subject to the ultimate jurisdiction of the Railroad Adjustment Board. Thus, in Republic Steel Corp. v. Maddox, 379 U.S. 650, 85 S.Ct. 614, 13 L.Ed.2d 580 (1965), where an employee brought a suit for breach of contract for severance pay, the Supreme Court stated that federal labor policy requires that individual employees wishing to assert contract grievances must attempt use of the agreed-upon contract grievance procedure. Similarly, two recent Eighth Circuit cases held that exhaustion of available administrative procedures was necessary before equitable relief could be sought in the federal courts.

In Howard v. St. Louis-San Francisco Railway Company, 361 F.2d 905 (8th Cir. 1966), Negro train porters were denied relief in seeking to be reclassified as brakemen. The court held that only the Mediation Board had power to make class or craft determination, and absent a change in classification the issues presented a minor labor dispute with ultimate jurisdiction in the Railroad Adjustment Board.

And in Neal v. System Board of Adjustment (Missouri Pacific Railroad), 348 F.2d 722 (8th Cir. 1965), employees alleging racial discrimination in the abolition of existing positions and the establishment of new positions were denied equitable relief against the union and its officers because of failure to exhaust available administrative remedies.

There is no doubt that the contractual and statutory provisions constitute a system which may be utilized by plaintiff in asserting her rights under the collective bargaining agreement. And were plaintiff asserting a contractual right under the collective agreement, or a minor labor dispute, she would be foreclosed from judicial relief under the above-cited cases.

However, plaintiff contends that while she may have certain rights under the collective bargaining agreement, she is asserting statutory rights under Title VII, and therefore, the principle of exhaustion is not applicable.

It is the opinion of the court that the case of Norman v. Missouri Pacific Railroad, 414 F.2d 73 (8th Cir. 1969) is controlling. That case involved claims of racial discrimination under Title VII of the Act by train porters against the railroad and railway brakemen. The court recognizes that the facts are different from the present case, but the broad basis of the holding on the issue of whether the plaintiffs were required to exhaust remedies under the Railway Labor Act before seeking judicial relief makes the Norman case controlling. The court in Norman, states, pages 82-83:

"Title VII of the Civil Rights Act of 1964 by its express terms makes racial and other discrimination in employment and employment opportunities unlawful. This statute creates additional grounds for complaints based upon racially discriminatory practices of an employer. If the Supreme Court would give effect to a state anti-discrimination statute as in Colorado Anti-Discrimination Commission v. Continental Airlines, Inc., supra, 372 U.S. 714, 83 S.Ct. 1022, 10 L.Ed.2d 84, it would likely give effect to a federal statute barring racial discrimination in employment as is set forth in Title VII § 703 of the Civil Rights Act of 1964. The Railway Labor Act is not basically a fair employment practice act nor has it been utilized as such. Its basic purpose is to foster and promote collective bargaining between employees and employers with a provision for continuity of service to the public while setting up a detailed and elaborate procedure for the resolution of major and minor disputes that occur in the operation of the railroads. On the other hand Title VII of the Civil Rights Act specifically prohibits racial and other discrimination in employment and employment opportunities.

"We, therefore, do not think the plaintiffs are confined to their administrative remedies, which appear without further examination to be inadequate, under the Railway Labor Act. The enactment of Title VII provides a more extensive and broader ground for relief, specifically oriented towards the elimination of discriminatory employment practices based upon race, color, religion, sex or national origin. Title VII is cast in broad, all-inclusive terms setting up statutory rights against discrimination based inter alia upon race. The rights granted by this Title are enforceable by individuals in the District Courts, provided, of course, proper administrative channels are utilized as set forth in the act. Jenkins v. United Gas Corporation, 400 F.2d 28 (5 Cir. 1968); Oatis v. Crown Zellerbach Corp., 398 F.2d 496 (5 Cir. 1968). Failure to process a complaint through the administrative procedures required by the Act is ground for dismissal. Stebbins v. Nationwide Mutual Insurance Company, 382 F.2d 267 (4 Cir. 1967), cert. denied 390 U.S. 910, 88 S.Ct. 836, 19 L.Ed.2d 880 (1968).

"The plaintiffs here are not attempting to require that

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