Collins v. Southwestern Bell Telephone Company, CIV-73-311.
| Decision Date | 24 May 1974 |
| Docket Number | No. CIV-73-311.,CIV-73-311. |
| Citation | 376 F. Supp. 979 |
| Parties | Richard COLLINS, Plaintiff, v. SOUTHWESTERN BELL TELEPHONE COMPANY, a corporation, Defendant. |
| Court | U.S. District Court — Eastern District of Oklahoma |
Bonds, Matthews, Bonds & Cartwright, Muskogee, Okl., for plaintiff.
Robert D. Allen, William J. Free, Nancy Batchelor, O. Carey Epps, Oklahoma City, Okl., for defendant.
The complaint filed in this case is brought pursuant to 42 U.S.C. § 2000e-5 of the Civil Rights Act of 1964. The essence of plaintiff's complaint is that he was discriminated against in his employment because of his religious convictions.
Plaintiff is an employee of Southwestern Bell Telephone Company. He requests the Court to enter a temporary injunction so as to maintain his employment status as it existed prior to the time of the alleged discriminatory practice by the defendant. In particular, he requests the Court to reinstate him as Marketing Manager in the City of Muskogee at the salary he was earning at the time of the alleged discrimination, as well as the cost of living increase which plaintiff contends should have been granted to him as well as being reinstated to his former pay increase schedule which was due to be reevaluated in December, 1973, for payment of the expenses he has incurred by reason of the alleged discriminatory practice of the defendant including but not limited to the expense of commuting, his back pay and the expenses incurred in the sale of his home. He further requests the Court to set this matter for hearing on its merits for the purpose of entering a permanent injunction restoring the plaintiff to his position as Marketing Manager in the City of Muskogee, his attorneys fee and the costs of this action.
The defendant filed a motion to dismiss asserting that the Court is without jurisdiction over the subject matter of plaintiff's claim because of plaintiff's failure to allege the jurisdictional facts required by 42 U.S.C. 2000e-5(f)(1). Specifically it is urged that the suit may not be filed by the plaintiff until the expiration of 180 days after the charge of alleged religious discrimination was filed with the EEOC or if within the 180 day period the suit may not be filed unless the EEOC notifies the plaintiff that "a civil action may be brought" by the plaintiff against the defendant. It is also urged that plaintiff has failed to exhaust his administrative remedies.
Plaintiff filed his charge on November 19, 1973, with the EEOC alleging religious discrimination. The complaint was filed in Federal Court on December 6, 1973. There is no allegation in the complaint that the plaintiff was notified by the EEOC of his right to sue the defendant between the time the charge was filed (November 19, 1973) and the time the complaint was filed (December 6, 1973) and it is not contended that such notice was given.
The question for decision before the Court is whether the provisions with respect to the time of filing a complaint as contained in 42 U.S.C. § 2000e-5(f)(1) are applicable when the relief being sought by the plaintiff is preliminary or temporary relief pending an adjudication of the alleged discriminatory practice on its merits. The statute provides in part as follows:
"If a charge filed with the Commission pursuant to subsection (b) of this section is dismissed by the Commission, or if within one hundred and eighty days from the filing of such charge . . . the Commission has not filed a civil action under this section . . . or the Commission has not entered into a conciliation agreement to which the person aggrieved is a party, the Commission . . . shall so notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge (A) by the person claiming to be aggrieved . . ."
Subsection (f)(2) of the statute provides in part as follows:
"Whenever a charge is filed with the Commission and the Commission concludes on the basis of a preliminary investigation that prompt judicial action is necessary to carry out the purposes of this Act, the Commission, . . . may bring an action for appropriate temporary or preliminary relief pending final disposition of such charge." (Emphasis added.)
The Court is of the opinion that the provisions of the above mentioned statute are applicable and that plaintiff's action cannot be independently brought against the defendant unless his charge which was filed with the Commission has either been dismissed by the Commission or (if within the 180 days after the filing of the charge) the Commission shall have given the plaintiff a "right to sue" letter by notifying plaintiff that his action may be brought against the defendant.
It is clear, as a general proposition, that the above provisions of the statute must be complied with before the plaintiff seeks redress in Federal Court. In Love v. The Pullman Company, 404 U.S. 522, 92 S.Ct. 616, 30 L.Ed.2d 679 (1972) the Supreme Court stated:
"A person claiming to be aggrieved by a violation of Title VII of the Civil Rights Act of 1964, 78 Stat. 253, may not maintain a suit for redress in federal district court unless he has first unsuccessfully pursued certain avenues of potential administrative relief."
Indeed the legislative scheme indicates that resort to the federal courts is the last of a series of steps which is made available to a person who has been discriminated against in his employment. In considering the requirements of the statute, the Court in Beverly v. Lone Star Lead Const. Corp., 437 F.2d 1136 (5th Cir. 1971) pointed out:
In the present case only 17 days elapsed between the time the charge was filed with the EEOC and the filing of the complaint. No opportunity was afforded for conciliation. One of the purposes of the Act is to afford a reasonable period of time for conciliation. If conciliation is impossible within the period provided in the Act, the EEOC may bring a civil action to correct the wrong and the person aggrieved "shall have the right to intervene." If the EEOC has not filed an action within 180 days the Commission shall notify the person aggrieved and he may institute a civil action in his own right.
The 8th Circuit in Local 179, United Textile Workers v. Federal Paper Stock Co., 461 F.2d 849 (1972) has recently stated:
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