Cox v. United States Gypsum Company, Civ. No. 4696.

• Decision Date: 28 March 1968
• Docket Number: Civ. No. 4696.
• Citation: 284 F. Supp. 74
• Parties: Adeline L. COX, Mary Handlon, Mary R. Messock, Mary Dubos, Anna Murga, Frances Gajewski and Emma Burk v. UNITED STATES GYPSUM COMPANY, a Delaware corporation, and International Brotherhood of Teamsters Local 142, Gary, Indiana.
• Court: U.S. District Court — Northern District of Indiana

284 F. Supp. 74

Adeline L. COX, Mary Handlon, Mary R. Messock, Mary Dubos, Anna Murga, Frances Gajewski and Emma Burk v. UNITED STATES GYPSUM COMPANY, a Delaware corporation, and International Brotherhood of Teamsters Local 142, Gary, Indiana.

Civ. No. 4696.

United States District Court N. D. Indiana, Hammond Division.

March 28, 1968.

John Leeney, Hammond, Ind., for plaintiffs.

Harold D. Burgess and John A. Jeffries, Chicago, Ill., for defendant U. S. Gypsum.

Lester Asher and Marvin Gittler, Chicago, Ill., for defendant International Brotherhood of Teamsters, Local 142.

MEMORANDUM

BEAMER, District Judge.

This action is brought under Title VII of the Civil Rights Act of 1964, Title 42 U.S.C. § 2000e.

Plaintiffs are several women previously employed by the United States Gypsum Company. The plaintiffs were "laid off" between January 3, 1966, and June 21, 1966. They all subsequently filed charges before the Equal Employment Opportunity Commission alleging that they were discriminated against on account of their sex. Some of the charges were directed solely against United States Gypsum but the majority were also directed against the employee's union. Conciliation was attempted and the Company consented to a proposed conciliation agreement with some changes. The employees, however, turned down the proposed agreement and filed their actions against the Union and the Company in this Court. Subsequently, the Union and Company filed various motions for summary judgment and for dismissal.

There are several issues presented by the complaint and the motions directed to it. First, must an aggrieved party file a charge against a respondent with the Equal Employment Opportunity Commission before he may bring an action against that respondent in Court? Second, must the charge filed before the Commission be filed within ninety (90) days of the alleged discrimination and must it give adequate notice of the charge eventually brought in Court? Third, is a discriminatory layoff a continuing violation for the purposes of the ninety (90) day period within which to file a charge? Fourth, must the aggrieved party obtain a notice of failure of conciliation from the Equal Employment Opportunity Commission before proceeding in Court if the Commission has already determined the existence of good cause? Fifth, does conciliation mean agreement of both the charging party and respondent, or the respondent only?

The law on some of these points is quite unsettled. The statute is new and there has been little opportunity for authoritative interpretation. In fact, a majority of the cases cited by the parties were unpublished at the time the briefs were submitted and oral argument heard. Copies of the various opinions relied upon were supplied to the Court by the parties. The pertinent portion of the Statute reads as follows, Title 42 U.S.C. 2000e-5(e):

If within thirty days after a charge is filed with the Commission or within thirty days after expiration of any period of reference under subsection (c) of this section (except that in either case such period may be extended to not more than sixty days upon a determination by the Commission that further efforts to secure voluntary compliance are warranted), the Commission has been unable to obtain voluntary compliance with this subchapter, the Commission shall so notify the person aggrieved and a civil action may, within thirty days thereafter, be brought against the respondent named in the charge (1) by the person claiming to be aggrieved * * *.

Title 42 U.S.C. § 2000e-5(d) also provides: "A charge under subsection (a) of this section shall be filed within ninety days after the alleged unlawful employment practice occurred * * *".

Although the Courts disagree on many aspects of this act, there is one point on which they all agree. No civil action may be maintained unless the aggrieved party has first filed a charge against the defendant before the Equal Employment Opportunity Commission, and the charge is filed within ninety (90) days of the alleged discrimination. Mickel v. South Carolina State Employment Service, 377 F.2d 239 (4th Cir. 1967); Bowe v. Colgate Palmolive Co., 272 F.Supp. 332 (S.D.Ind.1967); Moody v. Albemarle Paper Co., 271 F.Supp. 27 (E.D.N.C.1967); Mondy v. Crown Zellerbach, 271 F.Supp. 258 (E.D.La.1967); Anthony v. Brooks (N.D.Ga.1967); Quarles v. Philip Morris, 271 F.Supp. 842 (E.D.Va.1967); Dent v. St. Louis-San Francisco Ry., 265 F.Supp. 56 (N.D. Ala.1967); Hall v. Werthan Bag Corp., 251 F.Supp. 184 (M.D.Tenn.1966). Any other rule would be clearly inconsistent with the language of the act. Therefore, summary judgment must be granted on those actions against the union filed by plaintiffs who did not name the union in their complaints before the Commission. An examination of the Exhibits on file show that plaintiffs Mary R. Messock, Mary Dubos, and Frances I. Gajewski did not name the International Brotherhood of Teamsters, Local 142, in their charges to the Commission. The defendant union is granted summary judgment on the complaints of these plaintiffs. The remaining plaintiffs filed charges against the Union and all the plaintiffs filed charges against the U. S. Gypsum Company. There are, however, serious questions about the adequacy and timeliness of these charges. As already stated, charges before the Commission must be filed within ninety (90) days of the alleged unlawful employment practice. This is a positive command of the statute, which says, Title 42 U.S.C. § 2000e-5(d), "A charge under subsection (a) of this section shall be filed within ninety days after the alleged unlawful employment practice occurred * * *." Several of the charges filed by these plaintiffs were not filed until more than ninety (90) days after they were originally laid off, as shown by the following chart:

                   NAME OF PLAINTIFF    DATE OF LAY-OFF     DATE OF CHARGE
                   Mary R. Messock      January 14, 1966    June 13, 1966
                   Mary Dubos           January 14, 1966    June 13, 1966
                   Emma Burk            January 14, 1966    June 13, 1966
                   Anna Murga           January 14, 1966    June 13, 1966
                   Adeline L. Cox       January 3, 1966     June 13, 1966
                   --------------------------------------------------------------
                   Mary W. Handlon      March 16, 1966      April 1, 1966
                                                          (amended June 3, 1966)
                   Frances Gajewski     June 21, 1966       June 24, 1966
                

The first five (5) persons named above did not file charges with the E.E.O.C. until more than ninety (90) days after their layoff. They contend, however, that under the facts of this case there was a continuing violation of the act. They allege by affidavit, made on information and belief rather than personal knowledge, that male personnel were hired to perform jobs which they, the plaintiffs, were qualified to perform. They further allege that these men were hired between the time the plaintiffs were laid off and the time they filed their charges. These affidavits have little force because Rule 56(e) of the Federal Rules of Civil Procedure requires that affidavits be made on personal knowledge. The defendants claim that a layoff is not a continuing violation and that the pertinent dates are those the plaintiffs were actually laid off.

Neither party has cited case or statutory authority for their respective positions. Both rely on opinions of the General Counsel of the E.E.O.C. In a published General Counsel opinion of January 11, 1966, it stated:

A layoff is not a continuing act and accordingly, a charge alleging a discriminatory layoff must be filed within 90 days of the layoff, unless deferral to a state or local FEP agency is required. The fact that some aspects of the employment relationship, such as recall rights, may continue beyond the date of the layoff is immaterial. Where, however, an employer discriminates with respect to the recall of laid-off employees, the 90-day period commences at the time such discriminatory recalls are made.

A later published letter from the General Counsel, dated August 19, 1966, and released September 14, 1966, stated:

The 90-day time period within which to file a complaint of discriminatory discharge begins to run upon complete termination of the employment status. This limitation cannot be waived, unless it can be shown that employment status continued pending a final review by management and that the complaint was filed within 90 days of the final review of exhaustion of grievance procedures.

The letter went on to state, "During phone conversations I was told that the company relieved her of all duties and stopped paying her salary on August 6, 1965. In the absence of additional information these facts indicate a complete termination of her employment status."

These letters appear to be the only authority available on when the ninety (90) day period runs with respect to lay-offs. There are two questions which must be answered. First, should the Court follow the policy enunciated by the General Counsel of the Commission as to when the violation occurs? Second, have the plaintiffs taken this case outside of this policy by showing or alleging subsequent acts of discrimination?

The interpretation and application given the statute by the administrative agency should be given great weight by the Court. In Udall v. Tallman, 380 U.S. 1, 15, 85 S.Ct. 792, 801, 13 L.Ed.2d 616, 625 (1965), involving interpretation of an executive order and statute, the Supreme Court said:

When faced with a problem of statutory construction, this Court shows great deference to the interpretation given the statute by the officers or agency charged with its administration. "To sustain the Commission's application of this statutory term, we need not find that its construction is the only reasonable one, or even that it is the result we would have reached had the question arisen in the first instance in judicial proceedings." * * * "Particularly is this respect due when the

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