EEOC v. Liberty Trucking Co.

• Citation: 528 F. Supp. 610
• Decision Date: 17 December 1981
• Docket Number: No. 77-C-440.,77-C-440.
• Court: U.S. District Court — Western District of Wisconsin
• Parties: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. LIBERTY TRUCKING COMPANY, and Teamsters Local No. 695, Defendants.

528 F. Supp. 610

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. LIBERTY TRUCKING COMPANY, and Teamsters Local No. 695, Defendants.

No. 77-C-440.

United States District Court, W. D. Wisconsin.

December 17, 1981.

Kathleen Mulligan, E. E. O. C., Milwaukee, Wis., for plaintiffs.

Gerald Nichol, Madison, Wis., for Liberty Trucking.

Gerry Miller, Goldberg, Previant & Uelman, Milwaukee, Wis., for Teamsters.

OPINION AND ORDER

JAMES E. DOYLE, District Judge.

Preface

This is a civil action involving alleged discrimination because of religion in which plaintiff seeks: enforcement of a conciliation agreement entered into between defendant Liberty Trucking Company¹ and one of its employees, Delbert Carnahan, with the approval of the Equal Employment Opportunities Commission (hereinafter "EEOC"); an order that defendant make whole any and all persons affected by defendant's violation of the conciliation agreement by restoring Delbert Carnahan to his position at defendant's Madison facility with backpay and interest and all other rights and benefits lost by means of his unlawful discharge; an award of costs to plaintiff; and such further relief as this court deems necessary and proper.

Plaintiff alleges that this court enjoys jurisdiction pursuant to 28 U.S.C. §§ 451, 1337, 1343(4), and 1345 and also 42 U.S.C. § 2000e-5(f)(1), 5(f)(3), and 5(g). Defendant denies that jurisdiction is present. I must address first the jurisdictional issue. Should I find subject matter jurisdiction lacking, I must, on my own motion, dismiss the action. See Rule 12(h)(3), Fed.R.Civ.P.

To determine whether the present case meets the jurisdictional tests of the various statutes, I must look solely to the well-pleaded allegations of the amended complaint. Gully v. First National Bank, 299 U.S. 109 at 113, 57 S.Ct. 96, 98, 81 L.Ed. 70 (1936); Louisville & Nashville R. R. v. Mottley, 211 U.S. 149, 29 S.Ct. 42, 53 L.Ed. 126 (1908) (holding that complaint may not invoke federal jurisdiction by embodying a reply to an anticipated federal defense). There follows below a verbatim recital of plaintiff's statement of the cause of action.

STATEMENT OF CLAIM

8. More than thirty days prior to the institution of this lawsuit, a person claiming to be aggrieved filed charges with the Equal Employment Opportunity Commission alleging violations of Title VII Pub.L. 88-352, Title VII, July 2, 1964, 78 Stat. 253, as amended (hereinafter Title VII) by the Defendant.

9. Following its investigation of this charge the Commission determined that there was reasonable cause to believe that the Defendant had engaged in conduct which violated Title VII and pursuant to its authority under Section 706(b) of Title VII endeavored to eliminate the allegedly unlawful practices by informal methods of conference and conciliation.

10. As the results of these efforts, the Commission, the Defendant and the aggrieved Charging Party, Delbert Carnahan, entered into and executed a Conciliation Agreement and Memorandum of Agreement which were signed by the Commission May 11, 1977. A copy of this agreement and memorandum is attached hereto as Exhibit A.

11. All conditions precedent to the filing of this action have been fulfilled.

12. Since on or about November 11, 1977, and continuously up to the present time, Defendant Liberty Trucking has intentionally engaged in unlawful employment practices at its Madison facility in violation of the Conciliation Agreement and Memorandum including, but not limited, to the following:

A. Discharge of Delbert Carnahan for exercising his rights as provided in the Conciliation Agreement and Memorandum.

B. Failure or refusal to comply with the reporting provisions of the agreement.

C. Failure or refusal to allow Delbert Carnahan to exercise his vacation rights and to pay attorney fees as set out in the agreement.

D. Failure or refusal to make the necessary contributions on behalf of Delbert Carnahan to the pension fund.

E. Failure or refusal to pay at least 50% of the unpaid balance of the cash settlement and interest on or before the anniversary date of the signing of the Conciliation Agreement (May 11, 1978).

Because the foregoing statement of claim, embodied in the amended complaint, incorporates by reference the agreement referred to as Exhibit A, the terms of that agreement must be considered among the well-pleaded allegations of the complaint for the purpose of testing the presence or absence of jurisdiction. That agreement provides that it "shall become effective as of the date all parties hereto have executed same and the Commission has approved the entire Agreement and shall remain in effect for two (2) years from said date."² Its general provisions state: that Carnahan will not sue Liberty about matters which were the subject of the EEOC charges as long as Liberty complies with the agreement; that Liberty's terms and conditions of employment generally (not limited to Carnahan) will not discriminate on the basis of race, color, sex, religion or national origin in violation of Title VII; and that the EEOC will monitor compliance with the terms of the agreement. The agreement's remedial relief provision states that Liberty will make reasonable accommodations to the religious needs of its employees so long as required by Title VII of the Civil Rights Act of 1964. The EEOC guidelines on religious discrimination are explicitly made part of the agreement. The "charging party relief provisions" of the agreement state that Liberty agrees: to reinstate Carnahan to his job with the company, with accrued seniority; to pay him $12,125 for back wages, vacation and holiday pay in installments; to pay Carnahan $2,370 for health and welfare premiums within 20 days of his reinstatement; to pay 100 percent of the contributions to his pension funds which it would have paid had he never been discharged; to make arrangements for him to take 2 and ½ weeks of vacation leave accrued upon the date of his reinstatement; to pay Carnahan's attorney $6,750 within 90 days of the date the agreement became effective; to eliminate from Carnahan's personnel records all entries about the facts and circumstances related to his EEOC charge; to accommodate Carnahan's religious needs by not requiring him to work between ½ hour before sundown Friday and ½ hour after sundown Saturday; and to notify the EEOC of any warnings, reprimands, or discharges of Carnahan. The agreement's reporting provisions state that Liberty agrees: to report to the EEOC about items removed from Carnahan's personnel file and his reinstatement; to send it photocopies of checks and receipts for all moneys disbursed pursuant to the agreement within 10 days of the completion of the payment; and to send a report every six months about the installment payments made to Carnahan.

The conciliation form concludes with a section V entitled "Signatures," which includes a provision: "I have read the foregoing Conciliation Agreement and I accept and agree to the provisions contained therein ...." This provision is followed by the signatures of a representative of Liberty, as respondent, and of Carnahan as charging party. There follow an EEOC representative's recommendation of approval of the Conciliation Agreement and a concurrence in that recommendation by her supervisor. Finally, under the words "Approval on behalf of the Commission," there appears the signature of the district director of EEOC.

OPINION

I. Ability of EEOC to Sue

Before the presence or absence of subject matter jurisdiction in this United States district court is addressed, I inquire briefly whether EEOC is able to bring an action in any judicial forum to obtain enforcement of a conciliation agreement.

H.R.Rep.No.914, 88th Cong., 2d Sess. (1964), reprinted in 1964 U.S.Code Cong. & Ad.News 2355, 2404, discloses a version of the original proposed Title VII of the Civil Rights Act of 1964 which includes a provision that:

... the Commission must endeavor to eliminate any such unlawful employment practice by informal methods of conference, conciliation, persuasion and, if appropriate, to obtain from the charged party a written agreement describing particular practices which he agrees to refrain from committing.

But the words "and, if appropriate, to obtain from the charged party a written agreement describing particular practices which he agrees to refrain from committing" were omitted from the Act of July 2, 1964. Pub.L.88-352, tit. VII, 78 Stat. 253 (codified at 42 U.S.C. § 2000e (1970)). As enacted in 1964 and as codified today within 42 U.S.C. § 2000e-5(b), Title VII provides:

If the Commission determines 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.

In the course of amending Title VII in 1972 so as to empower EEOC to sue employers in certain circumstances, Congress made a further reference to conciliation. It provided that if, within a certain time period, the EEOC "has been unable to secure from the respondent a conciliation agreement acceptable to the Commission," the EEOC may bring a civil action against the respondent-employer. 42 U.S.C. § 2000e-5(f)(1).

Conciliation agreements, such as that involved here, are the outgrowth of these modest statutory seeds. Obviously, Title VII contemplates that in some cases there will be such things as conciliation agreements. But it is unclear from the statute whether EEOC is to be party to such agreements when they occur, as distinct from performing the role of a public agency called upon to find "acceptable" or not to find "acceptable," in terms of the agency's statutory responsibilities, a settlement between the respondent and the charging party or parties. The structure of the particular agreement involved here, and especially the concluding Section V entitled "Signatures," reflects this...