EQUAL EMPLOYMENT OP. COM'N v. Cleveland Mills Co., Civ. A. No. SH-73-36.

• Decision Date: 31 August 1973
• Docket Number: Civ. A. No. SH-73-36.
• Citation: 364 F. Supp. 1235
• Court: U.S. District Court — Western District of North Carolina
• Parties: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. CLEVELAND MILLS COMPANY, Defendant.

364 F. Supp. 1235

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. CLEVELAND MILLS COMPANY, Defendant.

Civ. A. No. SH-73-36.

United States District Court, W. D. North Carolina, Shelby Division.

August 31, 1973.

William A. Carey, Gen. Counsel, Charles F. Wilson, Associate Gen. Counsel, Katherine Savers McGovern, Joseph P. McCormick, Isabelle R. Cappello, Lutz Alexander Prager, Raymond Ronald Baca, Washington, D. C., for plaintiff.

Blakeney, Alexander & Machen by W. S. Blakeney, Charlotte, N. C., for defendant.

MEMORANDUM OF DECISION

WOODROW WILSON JONES, Chief Judge.

This matter is before the Court upon the defendant's Motion to Dismiss the action under Rule 12, Federal Rules of Civil Procedure, on the grounds that the Court lacks subject matter jurisdiction and the Complaint fails to state a claim upon which relief can be granted. The defendant contends that the plaintiff has failed to comply with the statutory conditions prerequisite to the existence of the alleged cause of action in that it was not filed within 180 days from the filing of the charge with the Commission.

After full consideration of the briefs and arguments of counsel, the Court now enters its findings and conclusions.

The action was instituted in this Court by the filing of a Complaint by the Commission on March 2, 1973, with service of process being had upon the defendant on March 12, 1973. The plaintiff alleges that since July 2, 1965, the defendant was an employer engaged in industry affecting commerce within the meaning of Section 701(b) of Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e et seq., as amended by Public Law 91-261 (March 24, 1972), and was an employer of more than 25 employees at its facilities in this district. The plaintiff further alleges that the defendant since July 2, 1965, has intentionally engaged in employment practices made unlawful by Section 703 of Title VII, by the maintenance of hiring and recruitment practices which discriminate on the basis of race; by limiting employees to less desirable and lower-paying jobs on the basis of race and by segregating employees, by job and department, on the basis of race. The plaintiff further alleges that these practices discriminate against employees and applicants for employment on the basis of race with respect to their compensation, terms, and privileges of employment, and deprives them of equal employment opportunities. The plaintiff seeks injunctive relief against such practices, and the recovery of back wages and such other financial relief as is necessary to eradicate the effects of such past and present unlawful employment practices.

The defendant's Motion to Dismiss is premised upon the alleged failure of the Commission to comply with the conditions precedent as required by the statute. The defendant's attorney presented during oral arguments and in briefs filed thereafter, facts showing that no claim was filed by any employee of the defendant, but that a Commission member filed a charge on August 7, 1968, almost 5 years ago, and that the defendant was not notified of such charge until November 29, 1968, nearly 4 months later. More than 3 years after the charge, the Commission advised the defendant on August 7, 1971, that "there is not reasonable cause to credit" any of the assertions of the charge, except for the claim that the defendant failed "to hire Negro females as a class because of their race." More than one year later, November 28, 1972, the Commission wrote a letter to each of 10 Negro females to the effect that the Commission had not filed any civil action with respect to their charges as required by Section 706(f) of the Act, 42 U.S.C.A. 2000e-5 and that the Commission had not entered into a conciliation agreement to which they were parties. The letter further advised that "therefore, pursuant to Section 706(f) of the Act, you may institute, within 90 days of your receipt of this Notice, a civil action in the United States District Court having jurisdiction over your case."

No employee, former employee, or applicant for employment filed any action within the 90-day period or at any other time.

This action was instituted by the Commission on March 2, 1973, and the defendant was served with process on March 12, 1973, more than 4½ years after the charge was filed. The plaintiff does not dispute these facts, and in its original and reply briefs contends that the 180-day provision of the statute is not a condition precedent to its right to bring this action. It contends that the action may be brought by the Commission at any time after the charge is filed, except for the first 30 days and for the 90-day period during which the allegedly injured party has the exclusive right. Since both plaintiff and defendant argued and briefed the case as if these facts were properly before the Court on the Motion to Dismiss, the Court will proceed to determine the issue as if the facts were determined under a Motion for Summary Judgment.

The Commission is a creation of the Congress and has no rights or duties other than those conferred by the statute. The original Act did not authorize the Commission to sue, but instead conferred such right upon the aggrieved party exclusively. 42 U.S.C.A. 2000e-5(e). By an amendment which was to become effective March 24, 1972, the Congress re-wrote this section and for the first time authorized the Commission to institute court action, and extended the time period for the aggrieved party to bring action from thirty (30) to ninety (90) days. 42 U.S.C.A. 2000e-5(f)(1). The pertinent part of the 1972 amendment reads:

"If, within thirty days after a charge is filed with the Commission * * *, the Commission has been unable to secure from the respondent a conciliation agreement acceptable to the Commission, the Commission may bring a civil action against any respondent * * * named in the charge. * * * If a charge filed with the Commission * * * is dismissed by the Commission, or if within one hundred and eighty days from the filing of such charge * * *, the Commission has not filed a civil action under this section * * *, or the Commission has not entered into a conciliation agreement to which the person aggrieved is a party, the Commission * * * shall so notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge (A) by the person claiming to be aggrieved or (B) if such charge was filed by a member of the Commission, by any person whom the charge alleges was aggrieved by the alleged unlawful employment practice. * * *" (Emphasis added.)

This statute leaves much to be desired in clarity and precision. It is clear, however, that an aggrieved party must bring an action within the time limit set forth in the statute which is now ninety (90) days. The courts have uniformly held, and the Commission agrees, that this requirement is a condition precedent to the jurisdiction of the court. Stebbins v. Nationwide Mutual Insurance Company, 469 F.2d 268 (4th Cir. 1972); Harris v. National Tea Company, 454 F.2d 307 (7th Cir. 1971); Goodman v. City Products Corp. Ben Franklin Div., 425 F.2d 702 (6th Cir. 1970); Cunningham v. Litton Industries, 413 F.2d 887 (9th Cir. 1969); Miller v. International Paper Company, 408 F.2d 283 (5th Cir. 1969); Choate v. Caterpillar Tractor Company, 402 F.2d 357 (7th Cir. 1968); Fore v. Southern Bell Telephone and Telegraph Company, 293 F.Supp. 587 (W.D.N.C.1968).

The statute clearly provides that "* * * the Commission may bring a civil action against any respondent * * named in the charge." The use of...