Crosslin v. Mountain States Telephone and Telegraph Co., 24536.

• Decision Date: 30 March 1970
• Docket Number: No. 24536.,24536.
• Citation: 422 F.2d 1028
• Parties: Erlene CROSSLIN and Robert Crosslin, her husband, Plaintiffs-Appellees, v. The MOUNTAIN STATES TELEPHONE AND TELEGRAPH COMPANY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

422 F.2d 1028 (1970)

Erlene CROSSLIN and Robert Crosslin, her husband, Plaintiffs-Appellees, v. The MOUNTAIN STATES TELEPHONE AND TELEGRAPH COMPANY, Defendant-Appellant.

No. 24536.

United States Court of Appeals, Ninth Circuit.

March 4, 1970.

Rehearing Denied March 30, 1970.

C. Webb Crockett (argued), of Fennemore, Craig, Von Ammon & Udall, Phoenix, Ariz., for defendant-appellant.

Sheldon Mitchell (argued), Phoenix, Ariz., Marian Halley (argued), Equal Employment Opportunity Commission, Washington, D. C., for plaintiffs-appellees.

Leonard M. Bell (argued), Asst. Atty. Gen., Gary K. Nelson, Atty. Gen., State of Arizona, Phoenix, Ariz., amicus curiae.

Before MERRILL, CARTER and HUFSTEDLER, Circuit Judges.

MERRILL, Circuit Judge:

From an order denying a motion to dismiss the complaint this appeal has, with our leave, been taken pursuant to 28 U.S.C. § 1292(b), and Rule 5, Federal Rules of Appellate Procedure.

The question presented arises under the Civil Rights Act of 1964. Appellees have brought suit upon a charge of an unlawful employment practice involving racial discrimination. The issue here is whether appellees' failure to afford the State of Arizona an opportunity to attempt settlement of the dispute and elimination of any unlawful practice deprived the District Court of jurisdiction to grant the federal remedies provided by the Act.

The Civil Rights Act of 1964, 42 U.S. C. § 2000e-2(a) provides:

"(a) It shall be an unlawful employment practice for an employer —

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual\'s race, color, religion, sex, or national origin."

42 U.S.C. § 2000e-4 creates the Equal Employment Opportunity Commission (EEOC).

Enforcement provisions of the Act are set forth in 42 U.S.C. § 2000e-5. Subsection (a) provides for the filing, by the aggrieved person, of a charge of violation with the EEOC. It directs the EEOC to notify the employer and to investigate the charge. Subsection (a) further provides:

"If the Commission shall determine, after such investigation, that there is reasonable cause to believe that the charge is true, the Commission shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion."

Subsection (e) provides that suit may be brought by the aggrieved person if the EEOC has been unable to secure voluntary compliance. Subsection (f) grants jurisdiction to the federal courts to entertain such suits. Subsection (g) provides for remedies, including injunctive relief and affirmative orders of hiring with or without back pay.

At the heart of the issue on appeal is subsection (b), set forth in the margin.¹ In essence, it provides that where a state has prohibited the unlawful practice alleged and has provided an agency "to grant or seek relief" from such practice, then, "no charge may be filed under subsection (a)" with the EEOC before the expiration of 60 days from the giving of notice to the state agency of the facts constituting the alleged violation, or before the termination of state proceedings, whichever is earlier.

Appellees allege that appellant refused to hire appellee Erlene Crosslin "solely because she is a Negro." They further allege that the EEOC has found that reasonable cause exists to believe that the violation had occurred, and that the EEOC was unable to secure voluntary compliance. It is conceded, however, that although Arizona has, by law, prohibited the alleged practice, and has established a Civil Rights Commission to deal with such violations,² no notice had been given to that commission pursuant to subsection (b). Upon this ground appellant sought to dismiss the complaint.

The questions presented are whether the Arizona Commission is an agency authorized to "grant or seek relief from such practice" within the meaning of subsection (b) and, if so, whether failure to seek relief from that commission operates as a jurisdictional bar to this suit. The District Court held that the Arizona Commission does not fall within the purpose of subsection (b). The EEOC, as amicus curiae, has appeared in support of this result. The State of Arizona, as amicus curiae, has aligned itself with the appellant.

It is the position of appellees and the EEOC that the "relief" which a state commission must be authorized to grant or seek must constitute a suitable remedy for the aggrieved person. They point out that the only sanction or remedy specified by Arizona civil rights laws appears to be a criminal penalty — a fine of not to exceed $300. There is no specific authority for injunctive relief or back pay. No provision is made for class-wide relief. An EEOC decision dated December 5, 1965, General Counsel Opinion No. 667-65, CCH ¶ 17,252, at 7370, addressed directly to Arizona law provides:

"When a state fair employment practice law authorizes the issuance of a cease-and-desist order against a respondent but does not provide for enforcement thereof unless the respondent has been served with a cease-and-desist order involving a previous violation, the aggrieved person is not afforded a meaningful remedy unless there is an outstanding order against the respondent. Accordingly, the Commission will not defer to such state."

We find this position to be inconsistent with § 2000e-5(b).

The "relief" intended by that subsection, the scope of which is our specific concern here, is not that which may be granted by courts in response to a petition by the aggrieved person — the teeth of the federal program and the comparative weakness of Arizona's. Rather it is the relief that may be sought by the state or local authority itself. In this respect the Arizona Commission seeks relief in precisely the same fashion as does the EEOC and seeks precisely the same relief. Ariz.Rev.Stat. 41-1481, subsec. B provides:

"If, upon investigation, the commission determines that there is reasonable cause to believe that the charge is true, it shall endeavor to eliminate such alleged unlawful practice through means of conference, conciliation and persuasion."³

Since Congress has spoken in terms not of ultimate state remedy but of relief to be sought by a state authority, it may reasonably be supposed to have had in mind the type of relief which it had itself authorized the EEOC to seek: elimination of the unlawful practice by "conference, conciliation and persuasion." § 2000e-5(a). It may reasonably be credited with the desire to afford the states the same opportunity for settlement that it had afforded the EEOC by its requirement that a charge be filed with the EEOC prior to institution of suit. We so construe the Act.

Legislative history makes it clear that Congress did not regard an opportunity to seek such relief as unimportant and unworthy of delay. Speaking with reference to the Senate Bill, Senator Humphrey stated:

"The major substantive changes give increased emphasis to the role of State and local authorities and to methods of securing voluntary compliance. This is both salutary and consistent with the basic philosophy of the bill — that, whenever possible, the problems dealt with by the bill should be resolved locally and voluntarily." 110 Cong.Rec. 12707 (1964).

"If the practice complained of occurs in a State or locality which has a law prohibiting such practices and establishing an agency to deal with them and there is no such agreement the individual complainant cannot file his charge with the Commission until the State or local agency has been given an opportunity to handle the problem under State or local law. However, after the agency has had 60 days to adjust the complaint or after it terminates proceedings on it, the complainant may go to the Federal Commission." 110 Cong.Rec.

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