EQUAL EMPLOYMENT OP. COM'N v. Wah Chang Albany Corp.

• Decision Date: 17 June 1974
• Docket Number: No. 73-3555.,73-3555.
• Citation: 499 F.2d 187
• Parties: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. WAH CHANG ALBANY CORPORATION and Local 6163, United Steelworkers of America (AFL-CIO), Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

499 F.2d 187 (1974)

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. WAH CHANG ALBANY CORPORATION and Local 6163, United Steelworkers of America (AFL-CIO), Defendants-Appellees.

No. 73-3555.

United States Court of Appeals, Ninth Circuit.

June 17, 1974.

C. L. Thomas (argued), EEOC, Washington, D. C., for plaintiff-appellant.

William H. Schmelling (argued), of Willner, Bennett, Meyers, Riggs & Skarstad, Portland, Or., Perry Goldberg (argued), Chicago, Ill., for defendants-appellees.

Before BROWNING and WRIGHT, Circuit Judges, and KING,^* District Judge.

PER CURIAM:

The Equal Employment Opportunity Commission EEOC or Commission appeals from an order of the District Court for the District of Oregon which dismissed an EEOC action brought pursuant to the Commission's authority under Section 706(f)(1) and (3) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.A. (1974) § 2000e-5 (f) (1) and (3), against Wah Chang Albany Corporation Wah Chang Albany or Employer and Local 6163, United Steelworkers of America (AFL-CIO) Union, because the first amended complaint did not allege that the discriminatory charge had been deferred to the appropriate state or local agency.¹

Defendants argued, and the district judge ruled, that deferral was one of the pre-conditions to the court's jurisdiction and therefore was required to be pleaded by Rule 8(a) (1), Fed.R.Civ.P. Defendants argued alternatively that deferral was a necessary pre-condition to relief and therefore was required to be pleaded by Rule 8(a) (2). The district judge did not reach this alternative ground for dismissal.

We reverse.

We hold that Rule 8(a) does not require specific allegations relating to deferral, either for the purpose of establishing the grounds upon which the court's jurisdiction depends, or for the purpose of stating a claim showing that the pleader is entitled to relief.

In an area in which it is difficult to demonstrate ultimate or eternal truth, we look to what ought to be the better practice in the light of the history of notice pleading under the Federal Rules of Civil Procedure.

A similar situation was faced in Hodgson v. Virginia Baptist Hospital, Inc., 482 F.2d 821 (4th Cir. 1973), and the opposing points of view as to the application and interaction among Rules 8, 9, and 12, Fed.R.Civ.P., are well explicated by the majority and minority opinions in that case. The majority pointed out that: "A major aim of American procedural reform has been to reduce reliance on pleadings to refine the evidentiary basis for a litigant's claim." 482 F.2d at 823.

A fundamental policy of the Equal Employment Opportunity Act Act is to avoid federal action whenever possible by making the state a partner in the enforcement of Title VII. See, e. g., 110 Cong.Rec. 12707 (1964) (remarks of Senator Humphrey). The deferral requirement of Section 706(c), 42 U.S.C.A. (1974) § 2000e-5(c),² is thus an important feature of the statute to be carried out by the executive department and to be upheld by the judiciary. On the other hand, we do not see this procedural direction to the Commission as affecting the power of the court to deal with a complaint that makes no specific mention of deferral.³

The Equal Employment Opportunity Act is an intricate statute hedged about with definitional, substantive, and procedural limitations, restrictions, and requirements. The Supreme Court has decreed in Love v. Pullman Co., 404 U.S. 522, 92 S.Ct. 616, 30 L.Ed.2d 679 (1972), that these provisions are not to be interpreted too literally or too technically, reversing The Tenth Circuit, which then followed with Vigil v. American Telephone and Telegraph Company, 455 F.2d 1222 (10th Cir. 1972), to the same effect.

The civil action authorized by Section 706(f) (1) is essentially a claim for relief from an unresolved unlawful employment practice. In keeping with the spirit of Love v. Pullman Co., the procedural steps that must be taken before suit may be prosecuted are most reasonably considered conditions precedent, the performance or occurrence of which may be pleaded generally as permitted by Rule 9(c), Fed.R.Civ.P.⁴

Deferral to a state or local agency, while not to be overlooked, is contingent, depending upon the existence, provisions, and requirements of the state or local law. Failure to allege deferral is as consistent with a position that deferral is not required as that deferral has been by-passed. See, e. g., General Ins. Co. v. EEOC, 491 F.2d 133, 135 (9th Cir. 1974). Issues in this regard are defensive in character and can be resolved readily by motion for summary judgment under Rule 56, Fed.R. Civ.P.⁵ Such a procedure is no more burdensome on the defendant than a motion to dismiss under Rule 12(b), Fed. R.Civ.P.

Defendants argued that they could not safely formulate responsive pleadings based on something more than speculation about the nature of the charges which are the basis of the complaint unless the EEOC was required to plead the additional matters requested. The argument strikes us as frivolous. The Act requires that notice of a charge be served upon the person against whom such charge is made and that the Commission attempt for at least 30 days to settle the charge by conciliation. If an allegation of the complaint does in fact come as a surprise to a defendant, Rule 8(b), Fed.R.Civ.P., permits him to deny the allegation by avering that he is without knowledge or information sufficient to form a belief as to the truth of the allegation.

Plaintiff EEOC for some reason not immediately apparent omitted from the first amended complaint the general allegation that all conditions precedent to the commencement of the action had been fulfilled. This allegation should be restored to the complaint.

The cause is remanded for further proceedings consistent herewith.⁶

* The Honorable Samuel P. King, United States District Judge for the District of Hawaii, sitting by designation.

1 The original complaint, filed May 7, 1973, charged that the defendants engaged in various practices which discriminated against its women employees on the basis of their sex. It alleged that jurisdiction of the action was conferred by Section 706(f) (1) and (3) of Title VII. It further alleged that charges of employment discrimination had been filed more than 30 days prior to the commencement of the action, and that "All conditions precedent to the commencement of this action have been fulfilled".

Defendants moved to dismiss the complaint for, inter alia, failure to allege facts sufficient to sustain the district court's jurisdiction under Title VII. In their memoranda in support of the motions, defendants argued that the general allegation in the complaint as to fulfillment of conditions precedent was insufficient; that the complaint should have specifically alleged the timeliness of the charge filed with the Commission, deferral to the appropriate state agency, a finding of reasonable cause by the Commission, and the Commission's inability to secure a conciliation agreement acceptable to it.

On August 15, 1973, the district court granted defendants motion to dismiss and gave the plaintiff 30 days "in which to file an amended complaint which must allege that the EEOC has complied with each specific condition precedent".

The Equal Employment Opportunity Commission, on September 12, 1973, filed its First Amended Complaint. It again alleged that 30 days had elapsed since the filing of charges with the Commission specifying the names of the charging parties and dates of filing. It then alleged that the Commission, after investigating and finding reasonable cause to believe that the defendants had engaged in unlawful employment practices, had been unable to secure a conciliation agreement acceptable to it. The general statement that "All conditions precedent to the commencement of this action have been fulfilled" was left out.

The defendants again moved to dismiss the...