EQUAL EMP. OP. COM'N v. NEW YORK TIMES BROAD. SERV., INC., C-73-282.

• Decision Date: 13 September 1973
• Docket Number: No. C-73-282.,C-73-282.
• Citation: 364 F. Supp. 651
• Parties: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. The NEW YORK TIMES BROADCASTING SERVICE, INC., doing business as WREC-TV, Defendant.
• Court: U.S. District Court — Western District of Tennessee

364 F. Supp. 651

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. The NEW YORK TIMES BROADCASTING SERVICE, INC., doing business as WREC-TV, Defendant.

No. C-73-282.

United States District Court, W. D. Tennessee, W. D.

September 13, 1973.

Joseph Ray Terry, Atlanta, Ga., for plaintiff.

Richard A. Brackhahn, Bowling, Brackhahn & Jackson, Memphis, Tenn. John J. Stanton, Jr., Gen. Atty., New York City, for defendant.

ORDER ON MOTION TO DISMISS

WELLFORD, District Judge.

Equal Employment Opportunity Commission has instituted an action against defendant pursuant to Section 706(f)(1) and (3) of Title VII of the Civil Rights Act of 1964 as amended by Public Law #92-261 (March 24, 1972). Defendant is engaged in the television broadcasting business in Memphis. The suit is based on an allegation that "charges were filed with the Commission alleging that New York Times Boradcasting Service, Inc. had engaged in unlawful employment practices under Title VII." The complaint charges unlawful policies and practices both with respect to sex discrimination but also with respect to racial discrimination,¹ and seeks broad relief in both categories. Defendant filed a motion to dismiss the racial charges and allegations, asserting that only one charge or complaint was filed with the Commission and that by a white female who was not employed as a journalist. At the hearing the Commission admitted that only Camilla J. Wilson, a female Caucasian, had indeed filed a charge, which was dated January 11, 1972,² and was later in 1972 served on defendant.

After investigation of this charge, EEOC notified Miss Wilson and the defendant on January 18, 1973, that "reasonable cause exists to believe that respondent defendant has discriminated and is discriminating against charging party Wilson and females as a class because of their sex."³ Also in this determination notice issued, EEOC's District Director advised:

"Like and related to the allegations of the charge is the fact that Respondent's work force is 75% Caucasian, although the community is 40% Black. Title VII permits the use of statistical probability to infer the existence of a pattern or practice of discrimination . . ."

The Court considers that the motion to dismiss should be treated as a motion for summary judgment since there are no contested issues of fact with respect to the circumstances of the racial discrimination charges. No black person has ever filed any charge of racial discrimination against this defendant television station, and the investigation made on the single sex discrimination charge revealed an alleged disparity between the percentage of blacks employed as compared to the percentage of blacks in the community.

1970 census figures reveal that there were 33% of non-Caucasian persons over 21 years of age in Shelby County, Tennessee.⁴ EEOC concedes that defendant's work force was 25% non-Caucasian at the time of investigation. The percentage, of course, may or may not be considerably less as to the proportion of blacks or non-Caucasians who are trained, capable, and qualified to hold positions with defendant television station in Memphis. U. S. v. I.B.E.W., 428 F.2d 144 (6th Cir. 1970) was cited by plaintiff as authority for the conclusion as to reasonable cause on the disparity. That case, however, dealt with one-third of 1% negro workers in the Cleveland, Ohio area where the percentage of negroes 21 years or older to the whole population in 1970 was 14%. (Again, according to the 1970 census data). This would appear to be no authority to sustain the Commission's arbitrary assumption in the instant case based on the figures involved.

It is true that a single charge of racial discrimination may suffice to justify the Commission "to launch a full-scale inquiry into the alleged unlawful motivation in employment practices," as contended by EEOC, but the case cited, Parham v. Southwestern Bell Tel. Co., 433 F.2d 421, 425 (8th Cir. 1970) involved (1) a charge of racial discrimination by a black employee and (2) a black ratio of workers of less than 2% of the total work force in Little Rock, Arkansas, in 1966, compared with 17% in 1968. That Court held, p. 426, that "statistics which revealed an extraordinarily small number of black employees . . . established a violation of Title VII," but this was so only prior to 1967.⁵ (Emphasis ours.) The instant case, to the contrary, has no individual charge of racial discrimination and there is certainly no extraordinary small proportion of black employees. Based on these distinguishing facts and the absence of any apparent unlawful motivation on defendant's part, we would be disposed to grant defendant's motion on this basis alone.

We give further consideration, however, to plaintiff's contention since there could be cases where a charge of discrimination in one area might support an EEOC related complaint in another area under appropriate circumstances. A complaint "may properly encompass any such discrimination like or reasonably related to the allegations of the charge." King v. Georgia Power Co., 295 F.Supp. 943, 947 (N.D.Ga.1968). That Court went on to define this rule as limiting "the civil action to that range of issues that would have been the subject matter of the conciliation efforts between EEOC and the employer . . . and the EEOC is not free to manipulate the scope of a case beyond the bounds herein expressed . . . limited to the issues that a particular complainant has standing to raise." This was a case based upon charges by individual blacks and the court permitted a class action for the benefit of other blacks on related issues of racial, not sex, bias. In Tipler v. DuPont, 443 F.2d 125 (6th Cir. 1971), this rule was approved, the court concluding, "the fact that a judicial complaint alleges a more detailed and refined contention than that contained in the charge of discrimination does not mean that the former was not included in the latter." Again, however, the court was dealing with a charge of racial discrimination filed by a negro who charged that he was punished for asserting his rights and that his employment was terminated without justification. It was held that these charges were sufficient to support a more general complaint of racially discriminatory discharge. See also, again as to racial discrimination, Blue Bell Boots, Inc. v. EEOC, 418 F.2d 355 (6th Cir. 1969),...