E.E.O.C. v. Continental Oil Co., 75-1908
| Decision Date | 21 January 1977 |
| Docket Number | No. 75-1908,75-1908 |
| Parties | 14 Fair Empl.Prac.Cas. 365, 13 Empl. Prac. Dec. P 11,412 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. CONTINENTAL OIL COMPANY, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Paul E. Mirengoff, Washington, D. C. (Abner W. Sibal, Gen. Counsel, Joseph T. Eddins, Jr., Associate Gen. Counsel, Beatrice Rosenberg and Charles L. Reischel, Washington, D. C., on the brief), for plaintiff-appellant.
Carl F. Eiberger, Denver, Colo. (Richard M. Lavers, Rodney L. Smith, Denver, Colo., Thomas Montgomery, Houston, Tex., on the brief), for defendant-appellee.
Before HILL, McWILLIAMS and BARRETT, United States Circuit Judges.
The Equal Employment Opportunity Commission (EEOC) appeals dismissal of its suit brought in the United States District court for the District of Colorado pursuant to Section 706 of the Civil Rights Act of 1964 (42 U.S.C. § 2000e-5).
Samuel Willis and Willie C. Stanley, both black, applied for employment with Continental Oil Company (Continental) in Commerce City, Colorado, in April 1971. Their applications were denied. They initiated complaints with the Colorado Civil Rights Commission alleging that Continental's refusal to hire them was racially motivated. On August 5, 1971, the Colorado Civil Rights Commission dismissed the complaints for want of probable cause. Willis and Stanley filed charges with the EEOC on August 3 and August 9, 1971, respectively. They again alleged that Continental refused to hire them because they were black. The EEOC conducted an investigation of the charges and concluded that they were supported by reasonable cause. Conciliation efforts were not successful.
The EEOC took no immediate steps toward litigation. In due course, Willis and Stanley requested and received "right to sue" letters from the EEOC and brought suit against Continental in the United States District Court for the District of Colorado, each alleging that he had been refused employment with Continental on account of race. Willis v. Conoco, No. C-5467 (D.Colo., filed October 25, 1973); Stanley v. Conoco, No. C-5203 (D.Colo., filed July 19, 1973). Each prayed for relief in the form of back pay, injunction, and declaratory judgment.
On August 27, 1974, the Commission filed this action, alleging § 706 of the Civil Rights Act of 1964 as its authority to litigate. Its statement of claim was as follows:
6. More than thirty (30) days prior to the institution of this action, charges were filed with the Commission alleging that the Defendant had engaged in unlawful employment practices under Title VII.
7. The Commission, after investigating and finding reasonable cause to believe that Defendant had engaged in unlawful employment practices, has been unable, through informal methods of conference, conciliation and persuasion, to secure a conciliation agreement acceptable to it.
8. Since July 2, 1965, and continuously up until the present time Defendant has intentionally engaged in unlawful employment practices at its Commerce City facility, in violation of Section 703 of Title VII, 42 U.S.C. Section 2000e-2, which include but are not limited to the following:
Defendant has discriminated and continues to discriminate on the bases of race and national origin by:
a. Failing to hire blacks and Spanish-surnamed Americans because of their race and national origin;
b. failing to recruit blacks and Spanish-surnamed Americans because of their race and national origin;
c. maintaining educational requirements which have a disparate effect on blacks and Spanish-surnamed Americans;
d. maintaining and utilizing tests which screen out a disproportionate number of blacks and Spanish-surnamed Americans;
e. utilizing subjective personnel selection criteria which screen out blacks and Spanish-surnamed Americans because of their race and national origin.
9. The effect of the policies and practices complained of in paragraph 8 above, has been to deprive blacks and Spanish-surnamed Americans of equal employment opportunities and otherwise adversely to affect their status as employees because of their race and national origin.
The EEOC's prayer for relief requested an injunction prohibiting Continental from engaging in discriminatory employment practices, an order instituting affirmative action programs to eradicate the effects of past discrimination against blacks and Spanish-surnamed Americans, and an order directing Continental to "make whole those persons adversely affected . . . by providing back pay, with interest, in an amount to be proved at trial . . .."
Continental moved for a more definite statement, which motion was granted. EEOC v. Continental Oil Co., 393 F.Supp. 167 (D.Colo.1975). The trial court ordered additional facts alleged.
Such facts should include the names of persons filing the charges of discrimination alleged in the complaint, together with the dates of filing of such charges. The period of time during which the investigation was held should also be included. Another allegation of importance is whether the Colorado Civil Rights Commission made any investigation and if so the extent to which the EEOC used or relied upon that investigation. Finally, the plaintiff should be required to state for what period of time and for how many employees or other persons back pay is claimed.
The EEOC filed an amended complaint, again alleging that the action "is expressly authorized by Section 706(f)(1)" of the Act. Willis and Stanley were identified as the charging parties. The EEOC alleged that it had given substantial weight to the findings of the Colorado Civil Rights Commission and that its investigation began on December 28, 1971, and was completed on May 31, 1972. No other aggrieved individuals were identified, though the allegations of paragraphs 8 and 9 of the original complaint were included verbatim in the amended complaint. The prayer for relief was substantially unchanged. On August 12, 1975, the trial judge entered an order limiting the scope of the EEOC's action to the charges of Willis and Stanley. The judge noted that the amended complaint did not plead a pattern or practice of discrimination, as would be required for a civil action under § 707 of the Act (42 U.S.C. § 2000e-6), nor did the EEOC seek certification of a class for a proceeding under Fed.R.Civ.P. 23, and concluded that it stated a claim only on behalf of Willis and Stanley. On October 22, 1975, the trial court entered an order dismissing the action for the reason that, as limited to the charges of Willis and Stanley, it duplicated the private actions previously filed by them.
The trial court's order of dismissal places into issue the authority of the EEOC to bring a separate civil action under § 706(f)(1) on the present facts. 1 We must construe a statute creating a right of action in the EEOC and are therefore dependent upon the specific language of the statute. Ewing v. Risher, 176 F.2d 641 (10th Cir. 1949).
In 1972, Congress changed the role of the EEOC within Title VII of the Civil Rights Act of 1964. Theretofore it had been a conciliator, investigating charges of discrimination and using its powers of conference, conciliation, and persuasion to seek compliance with the Act. After some years of experience under the Act, Congress perceived a more forceful role was necessary. 2
The EEOC is presently authorized to file two types of civil actions to redress employment discrimination. Under § 707, it may bring a civil action when it determines that there is "reasonable cause to believe that any person or group of persons is engaged in a pattern or practice of resistance to the full enjoyment of any of the rights secured (by provisions of the Act relating to employment discrimination), and that the pattern or practice is of such a nature and is intended to deny the full exercise of the rights herein described . . .." 42 U.S.C. § 2000e-6(a).
Section 706, on the other hand, is addressed to vindication of individual instances of employment discrimination. EEOC involvement is initiated by the filing of a specific charge of employment discrimination. The EEOC must investigate and make a finding as to reasonable cause. If reasonable cause is found to support the charge, the next step is conciliation. Only when conciliation is attempted and the efforts fail may the EEOC enter into litigation under § 706. EEOC v. Wilson & Co., 535 F.2d 1213 (10th Cir. 1976); EEOC v. Duval Corp., 528 F.2d 945 (10th Cir. 1976).
The aim of § 707 actions is eradication of broad based systematic discrimination. United States v. International Ass'n of Bridge Workers, 438 F.2d 679 (7th Cir. 1971), cert. denied, 404 U.S. 830, 92 S.Ct. 75, 30 L.Ed.2d 60. The thrust of § 706 actions, on the other hand, is vindication of individual instances of discrimination.
It was unquestionably the design of Congress in enactment of § 707 to provide the government with a swift and effective weapon to vindicate the broad public interest in eliminating unlawful practices, at a level which may or may not address the grievances of particular individuals. . . . Rather, it is to those individual grievances that Congress addressed § 706, with its attendant requirements that charges be filed, investigations conducted, and an opportunity to conciliate afforded the respondent when "reasonable cause" has been found. . . . (citations omitted).
United States v. Allegheny-Ludlum Industries, Inc., 517 F.2d 826, 843 (5th Cir. 1975).
In the context of that statutory scheme of enforcement, we consider the provisions of § 706 to determine whether the statute authorizes the EEOC to file a civil action predicated upon the charges of two individuals, each of whom has previously filed an action in vindication of his charge of employment discrimination. Section 706(f)(1) provides in pertinent part:
(f)(1) If within thirty days after...
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