E.E.O.C. v. McCall Printing Corp.

• Decision Date: 24 October 1980
• Docket Number: No. 78-3528,78-3528
• Citation: 633 F.2d 1232
• Parties: 24 Fair Empl.Prac.Cas. 437, 24 Empl. Prac. Dec. P 31,349 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. McCALL PRINTING CORPORATION, Dayton Press Incorporated, and InternationalBrotherhood of Bookbinders, Local # 199, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1232

633 F.2d 1232

24 Fair Empl.Prac.Cas. 437,

24 Empl. Prac. Dec. P 31,349

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. McCALL PRINTING CORPORATION, Dayton Press Incorporated, and InternationalBrotherhood of Bookbinders, Local # 199, Defendants-Appellees.

No. 78-3528.

United States Court of Appeals Sixth Circuit.

Argued June 12, 1980.

Decided Oct. 24, 1980.

Abner W. Sibal, Vella M. Fink, Gen. Counsel, Odas Nicholson, Mary-Helen Mautner, E. E. O. C., Washington, D. C., John R. Sweeney, E. E. O. C., Chicago, Ill., for plaintiff-appellant.

Dean E. Denlinger, Smith & Schnacke, Dayton, Ohio, for McCall.

Frank H. Stewart, Taft, Stettinius & Hollister, Cincinnati, Ohio, for Dayton Press.

Peter J. Rakay, Snyder, Hochman, Rakay & Schmidt, Dayton, Ohio, for Local 199.

Before LIVELY, KEITH and KENNEDY, Circuit Judges.

CORNELIA G. KENNEDY, Circuit Judge.

Plaintiff Equal Employment Opportunity Commission (EEOC) appeals from the dismissal by the District Court of this Title VII action brought on behalf of certain black male employees, alleging discrimination on the basis of their race in violation of 42 U.S.C. § 2000e, et seq. The District Court granted motions for summary judgment filed by McCall Printing Corporation and Dayton Press Inc., the employer, and the International Brotherhood of Bookbinders, Local No. 199, the collective bargaining representative, on the ground that the alleged acts of discrimination occurred more than 300 days before the filing of charges with the Equal Employment Opportunity Commission and that the charges therefore were not filed within the period required by 42 U.S.C. § 2000e-5(e). ¹

The charges in this case were filed by 15 black male employees of McCall Corporation who formerly had the job classification of "carloader". Prior to 1966, the "carloader" classification was composed entirely of blacks and employees within that classification were excluded from the mailing and shipping department's formal line of progression, although the classification was included within the department for collective bargaining purposes. In 1966, the carloaders sought access to the line of progression within the department based on seniority dating from the time each carloader hired into the department. In 1966, a settlement agreement was reached giving the carloaders access to the department's line of progression, but limiting their seniority for that purpose to the date of their transfer into the line of progression, that is, the effective date of the agreement, rather than their original dates of hire into the department.

In 1970, a group of male employees, all of whom were white, were transferred back into the mailing and shipping department and given seniority from their original date of entry into that department. ² Plaintiff claims that at that time the carloaders again requested that their seniority dates be based on their original date of entry into the department but that the request was denied.

In 1971, two actions were filed by certain female employees, some of whom were black, against defendant McCall and defendant Union alleging sex discrimination. This resulted in a conciliation agreement signed by the plaintiffs in that action, the defendants McCall and the Union, and by the EEOC which was approved by the court as a consent decree in 1973. The decree provided, among other things, that the lines of progression within the mailing department be restructured so as to eliminate segregation by sex. The female employees were given full departmental seniority rather than seniority dating from the time of transfer into the new lines of progression. The former carloaders again requested that they be given full departmental seniority and the request was again denied.

Plaintiff concedes this suit is untimely with respect to any action taken by the defendants in 1966 or 1970. Plaintiff argues, however, that the grant of full departmental seniority to the women in 1972, and the denial of the same benefit to the black former carloaders at the same time, are independent acts of discrimination which entitle them to relief. Defendants do not claim that the charges were untimely with respect to the conciliation agreement.

Section 2000e-5(e) of title 42, U.S.C., provides that a charge under this section must be filed with the Equal Employment Opportunity Commission within 180 days of the alleged unlawful employment practice, except under circumstances in which the aggrieved person has initially instituted proceedings with a state or local agency, in which case the charge must be filed within 300 days of the alleged discriminatory act. The charges in the instant case were filed in October, 1972, less than 180 days after the former carloaders learned of the conciliation agreement with the female workers. The final consent decree was dated March 8, 1973.

The District Court held that because the claim based on the 1972 agreement was not set forth in the charges filed, in the plaintiff's answers to interrogatories requesting the factual basis for the action, or in the reasonable cause determination letter, that claim was beyond the scope of the litigation in which the parties were engaged. The court further concluded that even though the effects of the acts occurring in 1966 and 1970 were perpetuated, plaintiff was barred from relief under the holdings in Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977), and United Air Lines, Inc. v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977). The District Court rejected plaintiff's contention that the 1972 conciliation agreement was an independent act of discrimination on which this action could properly be based. A plaintiff may not obtain relief with respect to time-barred discriminatory acts on the ground that the present effects of past discrimination continued during the limitation period. United Air Lines, Inc. v. Evans, supra, 431 U.S. at 558, 97 S.Ct. at 1889.

We cannot agree with the District Court's conclusion that the question of whether the 1972 agreement granting back seniority benefits to the female workers was an act of discrimination against the former carloaders was not properly before the court because it was not set forth in the charges filed by the charging party. The charges in this case stated that the discrimination last took place in September, 1972. The charges, which are identical, each briefly traced the carloaders' history of attempting to obtain full departmental seniority, stated that the former carloader was currently faced with the EEOC conciliation agreement granting female employees departmental seniority, and expressed a sincere hope to join the female employees in receiving full seniority. ³ The rule in this Circuit is that the EEOC's complaint is limited to the scope of the EEOC investigation reasonably expected to grow out of the charge of discrimination. Equal Employment Opportunity Comm'n v. Bailey Co., Inc., 563 F.2d 439, 446 (6th Cir. 1977), cert. denied, 435 U.S. 915, 98 S.Ct. 1468, 55 L.Ed.2d 506 (1978). Although the charges do not expressly refer to the 1972 conciliation agreement with the female employees as itself resulting in an act of discrimination toward the former carloaders, the claims of discrimination arising out of that 1972 agreement could reasonably have been expected to grow out of the charges filed. A fair reading of the charges clearly indicates that the former carloaders were claiming that the denial of back seniority benefits to the carloaders, while such benefits were awarded to other groups including most recently the female workers, was a result of discrimination against them on the basis of race. Charges of discrimination, which this Court has noted are often filed by lay complainants, should not result in the restriction of subsequent complaints based on procedural technicalities or the failure of the charges to contain the exact wording which might be required in a judicial pleading. Tipler v. E. I. duPont deNemours & Co., 443 F.2d 125, 131 (6th Cir. 1971). The failure of the charges to refer to the 1972 agreement with the female employees as a separate and distinct act of discrimination does not preclude a claim to that effect at trial.

The District Court's conclusion that the allegations regarding the 1972 conciliation agreement were not properly before it was also based on the fact that the reasonable cause determination letter, issued by the EEOC, contained no reference to the 1972 agreement. However, since the 1972 agreement was mentioned in the charges, and since an investigation regarding that agreement could reasonably be expected to grow out of those charges, the failure to refer in the determination letter to the 1972 agreement as a separate and distinct act of discrimination did not preclude the plaintiffs in this case from making that allegation at trial.

Defendants rely heavily on Equal Employment Opportunity Comm'n v. Bailey Co., Inc., supra, in support of their contention that claims of discrimination must always be contained in the determination letter issued by the Commission before they may be asserted at trial. The opinion in Bailey, in quoting from another case, does include language to the effect that any claim included properly in the reasonable cause determination and offer to conciliate may be the basis of a civil suit, if conciliation on that claim fails. Bailey, supra, 563 F.2d at 451. The issue in Bailey, however, was whether certain race and religious discrimination charges could reasonably have been expected to grow out of a charge regarding sex discrimination and race discrimination against black women filed with the Commission. The Court in Bailey was not faced with a situation in which the challenged allegations although contained in the charges were not contained in the determination letter.

It is clear that the recitation of a claim in the determination letter is not a prerequisite to...