E.E.O.C. v. Klingler Elec. Corp.

• Decision Date: 05 February 1981
• Docket Number: No. 80-3409,80-3409
• Citation: 636 F.2d 104
• Parties: 25 Fair Empl.Prac.Cas. 555, 25 Empl. Prac. Dec. P 31,531 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. KLINGLER ELECTRIC CORPORATION, Defendant-Appellee. Summary Calendar. . Unit A
• Court: U.S. Court of Appeals — Fifth Circuit

Page 104

636 F.2d 104

25 Fair Empl.Prac.Cas. 555,

25 Empl. Prac. Dec. P 31,531

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. KLINGLER ELECTRIC CORPORATION, Defendant-Appellee.

No. 80-3409

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Unit A

Feb. 5, 1981.

Sandra G. Bryan, Lutz Alexander Prager, Atty., EEOC Office of Gen. Counsel, Appellate Div., Washington, D. C., for plaintiff-appellant.

Alvin M. Binder, Bobby B. DeLaughter, Jackson, Miss., for defendant-appellee.

Appeal from the United States District Court for the Southern District of Mississippi.

Before CHARLES CLARK, REAVLEY and WILLIAMS, Circuit Judges.

PER CURIAM:

The Equal Employment Opportunity Commission (EEOC) filed suit against Klingler Electric Corporation (Klingler) under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Klingler filed a motion to dismiss for lack of subject matter jurisdiction under Rule 12, Fed.R.Civ.P. The United States District Court for the Southern District of Mississippi ruled for Klingler but apparently converted the motion under Rule 12(b) and granted summary judgment, based upon the grounds that the EEOC complaint had not specifically averred that efforts at conciliation had failed, and, furthermore, that documents and an affidavit presented by the defendant had demonstrated its willingness to conciliate. We reverse the judgment of the district court and remand for further proceedings.

On July 26, 1976, a Klingler employee filed a charge of employment discrimination with the EEOC. Following an investigation and determination of reasonable cause pursuant to 42 U.S.C. § 2000e-5(b), the EEOC initiated conciliation efforts with Klingler on April 11, 1977, as required by Title VII. These negotiations continued until October 7, 1977, when the EEOC mailed a Failure of Conciliation notice pursuant to the EEOC's own procedures. 29 C.F.R. 1601.25 (1977). At Klingler's request, negotiations were resumed. On December 22, 1978, the EEOC forwarded to Klingler's attorneys an amended and unsigned conciliation agreement and requested that, if it met with Klingler's approval, it be executed and returned as soon as possible. Item 16 of the agreement was left blank because it required data that Klingler had not yet supplied. Klingler filled in item 16, signed the document, and returned it to the EEOC on January 17, 1979. The Klingler attorneys enclosed a cover letter saying "(s)hould other or further (sic) be required, kindly advise."

According to affidavits signed by the director and equal opportunity specialist of the local EEOC office, the data supplied in item 16 was unacceptable to the Commission, the charging party, and the affected class members. On March 1, 1979, the EEOC contacted Klingler's attorneys and made a counter-proposal. The record does not reveal the exact nature of either this proposal or Klingler's reply, but only states that Klingler "did not act upon the proposal." The EEOC mailed a Failure of Conciliation letter to Klingler on April 2, 1979, and filed suit on January 14, 1980.

The EEOC complaint filed with the district court generally averred that "(a) ll conditions precedent to the institution of this lawsuit have been fulfilled." Klingler filed a motion to dismiss for lack of subject matter jurisdiction based upon the allegation that it had signed a conciliation agreement supplied by the EEOC and that, therefore, the EEOC had not fulfilled its statutory obligation to attempt conciliation before filing suit. The district court granted this motion and issued final judgment, stating first that the EEOC "has no power and no authority to institute or maintain this suit in the absence of a proper averment in its complaint that conciliation has failed." We note that this language not only creates a specific pleading requirement, but also elevates that requirement to the level of a condition precedent to suit. The court then cited the conciliation agreement signed by Klingler as proof that the EEOC had failed to conciliate as required by Title VII.

First of all, although the EEOC is statutorily required to attempt conciliation, there is no requirement, statutory or otherwise, that the EEOC specifically plead that conciliation efforts have failed. A general averment that "all conditions precedent to the institution of this lawsuit have been fulfilled" is quite adequate for pleading purposes. Fed.R.Civ.P. 9(c); EEOC v. Standard Forge and Axle Company, Inc., 496 F.2d 1392 (5th Cir. 1974). Furthermore, we specifically reject the even broader holding of the district court that a specific...