Cox v. United States Gypsum Company, No. 16937.

• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)
• Writing for the Court: DUFFY and HASTINGS, Senior Circuit , and FAIRCHILD, Circuit
• Citation: 409 F.2d 289
• Parties: Adeline L. COX et al., Plaintiff-Appellant, v. UNITED STATES GYPSUM COMPANY and International Brotherhood of Teamsters, Local 142, Defendants-Appellees.
• Decision Date: 16 May 1969
• Docket Number: No. 16937.

409 F.2d 289 (1969)

Adeline L. COX et al., Plaintiff-Appellant,
v.
UNITED STATES GYPSUM COMPANY and International Brotherhood of Teamsters, Local 142, Defendants-Appellees.

No. 16937.

United States Court of Appeals Seventh Circuit.

April 9, 1969.

Rehearing Denied May 16, 1969.

John E. Leeney, Hammond, Ind., for appellant.

Harold D. Burgess, Charles B. Mahin, John A. Jeffries, Marvin Gittler, Benjamin L. Jacobson, Lester Asher, for appellees, Spray, Price, Hough & Cushman, Chicago, Ill., of counsel.

Before DUFFY and HASTINGS, Senior Circuit Judges, and FAIRCHILD, Circuit Judge.

409 F.2d 290

FAIRCHILD, Circuit Judge.

Seven women brought this action against their employer, United States Gypsum Company, and their union, claiming discrimination on account of their sex in terminating their employment. The action was brought under sec. 706 of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5, relating to enforcement of the equal employment opportunities provisions of the act.

The district court dismissed the complaint, barring three plaintiffs, but not the others, from future action against the employer. Plaintiffs appealed, but have not argued that there was error in the judgment in favor of the union. That portion of the judgment will accordingly be affirmed.

Judge Beamer stated the facts and ably discussed the issues in a reported opinion.¹ We shall state our conclusions on the issues raised here, without unnecessary repetition of Judge Beamer's opinion.

I.

Sufficiency and timeliness of charges filed with the commission.

Plaintiffs Handlon and Gajewski filed charges with the commission within ninety days after the layoff which they claim was unlawful by reason of discrimination. These were clearly timely and sufficient.

Although the complaint in the action refers only to unlawful termination of employment and was not formally amended, it became clear that the five plaintiffs who were laid off more than ninety days before they filed their charges with the commission claim that there were further acts of discrimination against them down to the date of filing charges in that men with less seniority were recalled and new men were hired to fill jobs which plaintiffs were qualified to perform.

Plaintiffs Messock and Dobos were laid off more than ninety days before filing charges, but their charges explicitly claimed, in addition to the discriminatory layoff, recent hiring of new help. The district court concluded these charges sufficiently suggested discriminatory recalls. We agree.

Plaintiffs Murga, Burk, and Cox were laid off more than ninety days before they filed charges, and they made no explicit reference to recent recalls or new hiring. Item 7 of the commission's printed "Charge of Discrimination" form calls on the complainant to "Explain what unfair thing was done to you". These three plaintiffs, it is true, referred only to the layoff in response to this item. Item 6 calls for "The most recent date on which this discrimination took place". Here each of these three inserted the date of the layoffs, more than ninety days beore filing, but also inserted the word "continuing".

The district court evidently construed these charges as claiming only that the layoff was discriminatory, and held the charges not timely. He pointed out...