Cook v. Mountain States Telephone & Telegraph Co.

• Decision Date: 17 July 1975
• Docket Number: Civ. No. 74-453 PHX (WEC).
• Citation: 397 F. Supp. 1217
• Parties: Alpha M. COOK, on behalf of herself and all other persons similarly situated, Plaintiff, v. The MOUNTAIN STATES TELEPHONE AND TELEGRAPH COMPANY, a corporation, et al., Defendants.
• Court: U.S. District Court — District of Arizona

397 F. Supp. 1217

Alpha M. COOK, on behalf of herself and all other persons similarly situated, Plaintiff, v. The MOUNTAIN STATES TELEPHONE AND TELEGRAPH COMPANY, a corporation, et al., Defendants.

Civ. No. 74-453 PHX (WEC).

United States District Court, D. Arizona.

July 17, 1975.

COPYRIGHT MATERIAL OMITTED

Lemberg, Green, Lester & Walsh, Phoenix, Ariz., for plaintiff.

Fennemore, Craig, von Ammon & Udall, Crockett, Phoenix, Ariz., for defendants Mtn. States Tel. & Telegraph.

John W. McKendree (admitted), Denver, Colo., and McKendree & Lubin, Phoenix, Ariz., for defendants.

ORDER FOR PARTIAL SUMMARY JUDGMENT

CRAIG, Chief Judge.

The named plaintiff initiated this law suit as a class action against the above captioned defendants. The Complaint consists of three separate claims for relief, denominated "counts", and based respectively on the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., The Equal Pay Act of 1963, 29 U.S.C. § 206(e); and the Labor Management Relations Act of 1947, as amended, 29 U.S.C. § 151 et seq. The gravamen of plaintiff's allegations lie in a pay differential which existed between the job classifications of "janitor" and "janitress" under several collective bargaining agreements entered into between defendants, Communications Workers of America, A.F. of L. — C.I.O. (hereinafter referred to as CWA) and Mountain States Telephone and Telegraph Company (hereinafter referred to as Company). Plaintiff alleges that such pay differentials were based solely on sex and thus were violative of those duties imposed under the above designated statutes.

Two motions for summary judgment presently are before the court. First, the national union, CWA, and its local organization, Local 8519, have filed a Motion for Summary Judgment which will be referred to as the Unions' Motion for Summary Judgment. Additionally, the Company has filed a separate Motion for Summary Judgment which raises an issue which the court already will have considered in disposing of the Unions' motion. Hence, the disposition of the issues presented by the Unions will be dispositive of both motions.

THE UNIONS' MOTION FOR SUMMARY JUDGMENT

The defendant Unions base their motion on four contentions. First, it is the position of the Unions that judgment should be granted in their favor as to Count 1 of the Complaint because neither the named plaintiff nor the Equal Employment Opportunity Commission (EEOC) properly deferred plaintiff's charge of discrimination to the relevant Arizona civil rights agency as required by 42 U.S.C. § 2000e-5(c). Second, the national union, CWA, sets forth an additional reason for granting it judgment as to Count 1 in that neither of the two charges which the plaintiff filed with the EEOC named the national union as an offending party. Third, the Unions contend that judgment should be rendered in their favor on Count 2 of the Complaint because the Equal Pay Act of 1963 does not provide for the award of civil damages against unions. Fourth, it is contended that judgment should be awarded in favor of the Unions as to Count 3 of the Complaint on the basis that the plaintiff failed to exhaust her contractual and internal union remedies.

Failure to Defer to the Arizona Civil Rights Advisory Board

Plaintiff's first claim for relief is brought against the defendant Unions based on a violation of Title VII of the Civil Rights Act of 1964. 42 U.S.C. § 2000e-5(c) provides in pertinent part:

in the case of an alleged unlawful employment practice occurring in a State . . . which has a State or local law prohibiting the unlawful employment practice alleged and establishing . . . a State or local authority to grant . . . relief from such practice . . ., no charge may be filed under subsection (b) . . . before the expiration of sixty days after proceedings have been commenced under the State or local law, unless such proceedings have been earlier terminated, . ..

Since Arizona has a law establishing a civil rights division, Ariz.Rev.Stat.Ann. § 41-1401, and since this state also has a law prohibiting discrimination on the basis of sex in employment, Ariz.Rev. Stat.Ann. § 41-1463, it would appear that it comes within the purview of the above quoted federal statute. Motorola, Inc. v. E.E.O.C., 460 F.2d 1245 (9th Cir. 1972). Examination of plaintiff's Complaint reveals that it does not contain any allegations concerning deferral pursuant to the requirements of 42 U.S. C. § 2000e-5(c). The Unions point out this deficiency, allege that failure to comply with the deferral requirement of § 2000e-5(c) is jurisdictional and seek judgment in their favor on Count 1.

Plaintiff responds by asserting that failure to defer pursuant to § 2000e-5(c) is not a jurisdictional defect. In support of this proposition, the plaintiff cites the court to the case of Crosslin v. Mountain States Tel. & Tel. Co., 422 F.2d 1028 (9th Cir. 1970), cert. granted, opinion vacated and remanded for further consideration, 400 U.S. 1004, 91 S.Ct. 562, 27 L.Ed.2d 618 (1971). In Crosslin, when the action was before the 9th Circuit originally, that court held that failure to exhaust state remedies pursuant to § 2000e-5(c) was a jurisdictional defect. This decision subsequently was appealed to the United States Supreme Court. That Court vacated the 9th Circuit resolution in Crosslin and remanded the case back to the District Court of Arizona for "reconsideration in light of the suggestions contained in the brief of the Solicitor General, as amicus curiae, filed November 19, 1970." The Court went on to say, however, that "by this remand this Court intimates no view as to the merits of the Solicitor General's position." The 6th Circuit apparently secured a copy of the Solicitor General's amicus brief before the Supreme Court in Crosslin and quoted the language from that brief to which the Supreme Court's opinion appears to have been referring. The Solicitor General wrote:

The issue of the validity of EEOC's interpretation of Section 706(b) 42 U.S.C. § 2000e-5(c) is not in our view, of sufficient importance to warrant review by this Court at this time. We believe, however, that even if the court of appeals correctly rejected EEOC's interpretation, the court erred in treating the failure to defer to the state agency as a complete bar to judicial relief for the alleged discrimination. We, therefore, suggest that this Court should grant certiorari for the limited purpose of ordering the case to be remanded to the district court with instructions to retain jurisdiction for a period sufficient to allow petitioner to seek redress through the Arizona Civil Rights Commission.

Mitchell v. Mid-Continental Spring Co., 466 F.2d 24, 26 (6th Cir. 1972), cert. denied, 410 U.S. 928, 93 S.Ct. 1363, 35 L.Ed.2d 589 (1973). Following this suggestion, the district court judge in Crosslin retained jurisdiction and deferred the action to the Arizona state agency pursuant to the Solicitor General's suggestion. Civ. No. 6863 PHX (CAM). Similarly, when the 9th Circuit subsequently has considered the issue of whether failure to exhaust state agency remedies pursuant to § 2000e-5(c), it has directed the district court to:

. . . retain jurisdiction for a time sufficient to allow the EEOC to notify the Arizona Civil Rights Commission and to allow that commission the statutory deferral period in which to act upon it. . . . If the Arizona commission elects not to act, the district court may then proceed as the rights of the parties may then appear. . . .

Motorola, Inc. v. E.E.O.C., 460 F.2d at 1246.

There seems to be, however, some movement away from this approach in instances of failure to comply with § 2000e-5(c). In General Insurance Co. of America v. Equal Opportunity Employment Commission, 491 F.2d 133 (9th Cir. 1974), one panel of the Court of Appeals stated the following dicta:

The Commission contends that even should we hold that deference to state authority was required before this claim could be entertained under § 706(b), the District Court at the most should defer enforcement rather than deny it outright. The Commission refers to the form of mandate employed by this court in Motorola, Inc. v. E.E.O.C., 460 F.2d 1245, 1246 (9th Cir. 1972). There the District Court was instructed to retain jurisdiction while the Federal Commission notified the appropriate state commission and "allowed that commission the statutory deferral."

The source of this procedure was a suggestion by the Solicitor General made to the Supreme Court in Crosslin et vir v. Mountain States Telephone and Telegraph Co., 400 U.S. 1004, 91 S.Ct. 562, 27 L.Ed.2d 618 (1971). The Supreme Court declined to intimate any views as to the merits of the suggestion but vacated the judgment of this court (appearing at 422 F.2d 1028, 9th Cir.) and remanded the case to the District Court to appraise the suggestion. The District Court embraced it.

The trouble with this procedure is that it permits the Commission, contrary to legislative intent, to roil the waters with its own investigation and conciliatory efforts and defer to state authority only if required by court order to do so and then at a time when its own unsuccessful efforts have rendered any subsequent state efforts meaningless.

The Commission would, we think, be wise to recognize that while the procedure followed in Motorola may be appropriate when the Commission's neglect was due to good faith oversight or error of law, it would hardly be appropriate otherwise.

491 F.2d at 135-36 n. 2. Even more recently, a member of this court granted a Motion to Dismiss in Corne v. Bausch and Lomb, Inc., 390 F.Supp. 161 (WCF) on the basis that the charge had not been presented to the relevant state agency. The court said:

Here no State proceedings were instituted, no attempt was ever made to grant the State of Arizona jurisdiction to act. Clearly this is a violation or disregard of the intent and direction of the statute.

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What E.E.O.C. and the

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