E.E.O.C. v. General Telephone Co. of Northwest, Inc.

• Decision Date: 27 June 1979
• Docket Number: No. 78-1849,No. 89,I,89,78-1849
• Citation: 599 F.2d 322
• Parties: 20 Fair Empl.Prac.Cas. 52, 20 Empl. Prac. Dec. P 30,036 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee, v. GENERAL TELEPHONE COMPANY OF the NORTHWEST, INC., and West Coast Telephone Company of California, Inc., Defendants-Appellants, Local Unionnternational Brotherhood of Electrical Workers, Defendant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 322

599 F.2d 322

20 Fair Empl.Prac.Cas. 52, 20 Empl. Prac.

Dec. P 30,036

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee, v. GENERAL TELEPHONE COMPANY OF the NORTHWEST, INC., and West Coast Telephone Company of California, Inc. Defendants-Appellants Local Union No. 89, International Brotherhood of Electrical Workers, Defendant.

No. 78-1849.

United States Court of Appeals, Ninth Circuit.

June 27, 1979.

James R. Dickens (argued), of Karr, Tuttle, Koch, Campbell, Mawer & Morrow, Seattle, Wash., for defendants-appellants.

Vincent J. Blackwood, Atty. (argued), Abner W. Sibal, Charles L. Reischel, Joseph T. Eddins, Jr., E.E.O.C., Washington, D. C., for plaintiff-appellee.

Avrum M. Goldberg, William R. Weissman, Alfred M. Wurglitz, Wald Harkrader & Ross, Washington, D.C., Robert E. Williams, Douglas S. McDowell, McGuiness & Williams, Washington, D.C., of counsel for amicus curiae, Equal Employment Advisary Council.

Appeal from the United States District Court for the Western District of Washington.

Before GOODWIN and ANDERSON, Circuit Judges, and JAMESON, ^* District Judge.

JAMESON, District Judge:

This interlocutory appeal presents the question of whether the Equal Employment Opportunity Commission (EEOC) has authority under § 706(f)(1) of Title VII, Civil Rights Act of 1964 as amended, 42 U.S.C. § 2000e-5(f)(1) (Supp. V. 1975), to seek relief from discriminatory practices affecting a class of individuals without complying with the class certification requirements of Rule 23, F.R.Civ.P.

Plaintiff-appellee, EEOC, brought suit against the defendants-appellants, General Telephone Company of the Northwest, Inc., its subsidiary, West Coast Telephone Company of California, Inc., and Local Union No. 89, International Brotherhood of Electrical Workers (collectively called General Telephone), alleging that General Telephone discriminated against women employees with respect to maternity leave, access to craft jobs, and opportunities for promotion to managerial positions. EEOC sought injunctive relief and back pay for individuals affected by the challenged practices. ¹

EEOC moved "the Court for an order bifurcating the issue of class liability from the issue of individual damages pursuant to Rule 42(b), F.R.Civ.P.". On the same day the district court referred the action to a magistrate for trial. General Telephone filed a motion to "dismiss the class action aspects of plaintiff's complaint".

The magistrate issued a "Report and Recommendation" to the district court, recommending that General Telephone's motion to dismiss be denied. He concluded that the EEOC is not required to comply with Rule 23 for three reasons: (1) the EEOC is not required to comply with Rule 23 in § 707 (42 U.S.C. § 2000e-6) "pattern and practice" suits, and suits under § 706 (42 U.S.C. § 2000e-5) should not be treated differently; (2) the statute itself provides the necessary authority for the EEOC to bring suit on behalf of a class; and (3) it is undesirable and impractical to require the EEOC to comply with Rule 23.

The district court adopted the magistrate's recommendation and entered an order denying General Telephone's motion to dismiss the class action aspects of the case. The order was later amended to certify the question for interlocutory appeal pursuant to 28 U.S.C. § 1292(b), and this court entered an order granting permission to appeal. On appeal General Telephone contends that Rule 23 applies to class actions brought by the EEOC under § 706 of Title VII, since neither the Civil Rights Act of 1964 nor the Federal Rules exempt the EEOC from compliance with Rule 23.

The Civil Rights Act as Amended

Congress enacted Title VII of the Civil Rights Act of 1964, § 701 Et seq., 42 U.S.C. § 2000e Et seq., to assure equality of employment opportunities by eliminating those practices and devices that discriminate on the basis of race, color, religion, sex, or national origin. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). " Cooperation and voluntary compliance were selected as the preferred means for achieving the goal." To that end the EEOC was created and a procedure established whereby "state and local equal employment opportunity agencies, as well as the Commission, would have an opportunity to settle disputes through conference, conciliation, and persuasion before the aggrieved party was permitted to file a lawsuit". Alexander v. Gardner-Denver Co., 415 U.S. 36, 44, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1973).

Title VII of the Civil Rights Act was amended in 1972. The amendments expanded the enforcement authority of the EEOC. ² Under the 1972 amendment the Commission is empowered to "prevent any person from engaging in any unlawful employment practice". § 706(a), 42 U.S.C. § 2000e-5(a). If the Commission is unable to secure an acceptable conciliation agreement, the Commission is authorized to bring a civil action against any respondent which is not a governmental entity. § 706(f)(1), 42 U.S.C. § 2000e-5(f)(1). ³ In such an action the court may grant injunctive relief and order appropriate affirmative action. Under the amendment the Commission also has "authority to investigate and act on a charge of a pattern or practice of discrimination, whether filed by or on behalf of a person claiming to be aggrieved or by a member of the Commission". § 707(e), 42 U.S.C. § 2000e-6(e). ⁴

It is clear from the legislative history that the 1972 amendments were intended to increase the enforcement power of the EEOC by authorizing the Commission to bring civil suits. The Senate Labor Committee Report noted that the burden of suits by disadvantaged individuals had effectively precluded recovery in valid claims, and the amendment was an effort to end what had been described as a "modern day David and Goliath confrontation". The purpose of Title VII was to be accomplished "through a system of administrative hearings, Commission decisions and orders, and ultimate court review in appropriate cases the method which has long been utilized by other regulatory agencies". Senate Labor Committee Report, reprinted in "The Equal Employment Opportunity Act of 1972", Bureau of National Affairs, Inc. (hereinafter BNA) at 241.

A private right of action was retained, but it was "hoped that recourse to the private law suit (would) be the exception and not the rule, and that the vast majority of complaints (would) be handled through the offices of the EEOC or Attorney General as appropriate". Section-by-Section Analysis, Congressional Record, March 6, 1972, BNA at 130 (analysis of § 706(f)(1)).

Class Actions Under Rule 23

Rule 1 of the Federal Rules of Civil Procedure states that the federal rules "govern the procedure in the United States district courts in all suits of a civil nature . . . with the exceptions stated in Rule 81". ⁵ The rules "shall be construed to secure the just, speedy, and inexpensive determination of every action".

Rule 23(a) provides that, "One or more members of a class may sue or be sued as representative parties on behalf of all," only if the prerequisites therein specified are met. ⁶ For the proper maintenance of a class action the court must find not only that all of the prerequisites of subdivision (a) are met, but also that the suit satisfies the standards for at least one of the three types of class suits enumerated in subdivision (b). 3B Moore's Federal Practice, § 23.03, at 23-109.

In determining whether an action may properly be brought under Rule 23, a court must first find (1) that a class exists, and (2) that the named representative is a member of the class he purports to represent. See Wright and Miller, Federal Practice and Procedure: Civil Class Actions, §§ 1760 and 1761; 3B Moore's Federal Practice, §§ 23.04(1) and (2).

The first prerequisite, existence of a class, presents no problem. Every action under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e, is in effect a class action. Gay v. Waiters' and Dairy Lunchmen's Union, 549 F.2d 1330, 1333 (9 Cir. 1977) and cases cited therein.

The second prerequisite, membership in the class, "is inherent in the real party in interest requirement prescribed by Rule 17(a) and is reinforced by the statement in Rule 23(a) that 'one or more members of a class may sue or be sued as representative parties . . .' ". Wright and Miller, Supra, § 1761. The "member of the class" requirement has been strictly applied when a private party seeks to be named as a class representative. See Warth v. Selden, 422 U.S. 490, 502, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975); Sosna v. Iowa, 419 U.S. 393, 403, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975); DuPree v. United States, 559 F.2d 1151, 1153 (9 Cir. 1977). ⁷

On the other hand, if a party has himself suffered an injury, a statute may permit him to sue on behalf of third parties or assert a "public interest". Sierra Club v. Morton, 405 U.S. 727, 737-38, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972) and cases there cited. Class actions by a governmental entity are appropriate under certain circumstances, if it is able to satisfy the prerequisite of Rule 23. Hawaii v. Standard Oil Co. of California, 405 U.S. 251, 266, 92 S.Ct. 885, 31 L.Ed.2d 184 (1972). But merely being a governmental representative will not entitle one to qualify as a member of the class. DuPree v. United States, 559 F.2d at 1154.

Title VII gives the EEOC the standing to sue. The statute explicitly grants the EEOC the authority to assert the rights of others which may have been impaired by the activities in question. See DuPree v. United States, 559 F.2d at 1154. The legislative history makes it clear that the EEOC is a "properly suing party".

Based solely upon the language of Rule 23, it can be argued that the Rule does not apply to actions brought by the EEOC to enforce Title VII rights. The EEOC obviously is not a member of the "class" it represents. It does not satisfy the requirement of Rule 23(a)(3) that the "claims or defenses of the...