Equal Employment Op. Com'n v. C & D SPORTSWEAR CORP.
| Decision Date | 14 July 1975 |
| Docket Number | Civ. A. No. 75-1-VAL. |
| Citation | 398 F. Supp. 300 |
| Court | U.S. District Court — Middle District of Georgia |
| Parties | EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. C & D SPORTSWEAR CORPORATION, Defendant. |
Alfonso McGhee, Associate Regional Atty., Equal Employment Opportunity Commission, Atlanta, Ga., for plaintiff.
John M. Capron, Fisher & Phillips, Atlanta, Ga., for defendant.
This is an action brought by Plaintiff Equal Employment Opportunity Commission (hereinafter EEOC) against Defendant C & D Sportswear Corporation (hereinafter C & D). The EEOC contends that the discharge by C & D of one Gladys Thomas, in 1969, constituted a violation of Section 704(a) of Title VII of the Civil Rights Act, as amended, 42 U.S.C. Section 2000e-3(a). C & D has moved to dismiss the action or, in the alternative, for summary judgment. At the request of both parties, the Court heard oral argument on C & D's motions on April 25, 1974.
For the reasons set forth below the Court will grant Defendant's Motions. Based on the Complaint, and the numerous attachments to the Briefs submitted by both parties, and the hearing, it appears there is no dispute as to the following facts:
On the 20th of May, 1969, there was an altercation on the floor of C & D's plant between Gladys Thomas and the then-president of the Company, Ben Dinnerman. The next day Dinnerman's son, Irving Dinnerman, sent Mrs. Thomas home pending investigation of the dispute. The following Monday, May 26, Irving Dinnerman interviewed Thomas. During that interview Thomas stated that it was her opinion that Dinnerman had sent her home the previous week because he (Dinnerman) was a racist. Dinnerman was incensed at this accusation of racism and discharged her therefor.
Thomas then filed charges with the Equal Employment Opportunity Commission, complaining that she had been discharged because of her race. Nearly three years later, on February 3, 1972, Eduardo Pena, the Commission's Director of Compliance, issued a decision, reportedly on behalf of the Commission, holding that there was reasonable cause to believe that C & D had violated Title VII by discharging Thomas because "she opposed practices made unlawful by Title VII". He found there was not reasonable cause to believe that Thomas was discharged because of her race.
Conciliation efforts were apparently undertaken, but to no avail, and, by letter dated June 28, 1972, Thomas was advised of the failure of conciliation, and of her right to bring action against C & D within 90 days of the receipt of the letter. By letter of even date, C & D was advised that an action could be brought against it within 90 days of Thomas' receipt of her letter.
Thomas failed to bring any action against C & D.
The EEOC brought this action on January 2, 1975.
In support of its Motion to Dismiss, or In the Alternative, Motion for Summary Judgment, C & D makes the following arguments:
(1) This action is not timely brought;
(2) Having issued a right-to-sue notice to the Charging Party, the EEOC is barred from bringing this action;
(3) The EEOC improperly delegated to subordinated officials its statutory authority to make the determination as to reasonable cause, the determination that conciliation had failed, and the decision to bring suit;
(4) The EEOC denied Defendant procedural due process;
(5) The EEOC had not complied with its own procedural regulations, more specifically Section 1601.23; and
(6) As a matter of law C & D's conduct did not constitute retaliation within the meaning of Section 704(a) of the Act.
I am persuaded by arguments (1), (2) and (6) and therefore find it unnecessary to rule on arguments (3), (4) and (5).
In Equal Employment Opportunity Commission v. Griffin Wheel, 511 F.2d 456, (5 Cir., 1975), it was held that applicable state statutes of limitation (in this case Georgia Code Annotated § 3-704, providing that all actions for the recovery of wages shall be brought within two years after the right of action shall have accrued) may bar any recovery of back pay in actions brought by the EEOC.
Since the last actionable conduct occurred on the date of Thomas' discharge, more than five and one-half years prior to the bringing of this action, the EEOC may not recover any back pay for Thomas.
Griffin Wheel also held that the state statute of limitations does not bar the EEOC's actions insofar as it sought injunctive relief. However, the Court indicated at footnote 5 of its Opinion that the doctrine of laches would remain applicable. In order that the EEOC's action be barred by laches, inexcusable delay, resulting in prejudice to the Defendant, must appear. Akers v. State Marine Lines, Inc., 344 F.2d 217 (5 Cir. 1965). Both are present here.
A review of the EEOC Decision dated February 2, 1972, indicates that, at the time of the discharge, Ben Dinnerman, whose testimony, of necessity, would play a role in the trial of this cause, was 70 years of age. It is entirely likely that the elder Dinnerman's recollection of events which occurred 6 years prior to any testimony would not be entirely reliable. Indeed, no one's memory would be entirely reliable. Moreover, the EEOC's own regulations, appearing at Section 1602.14 permit the destruction of all pertinent records after the expiration of the Charging Party's right to bring any action.
Finally, the June 28, 1972 notice from the EEOC to C & D gave no indication whatsoever that the EEOC could bring its own action. The only reference to the possibility of suit was the statement that ". . . a civil action may be brought against the respondent . . . within ninety (90) days after the receipt of the notice to Thomas". C & D could quite reasonably have concluded that upon the expiration of that period, no action could be brought.
Accordingly, I find that the EEOC's inexplicable delay in bringing this action has prejudiced C & D in its ability to defend itself, and therefore, I find that this action is barred by the doctrine of laches.
C & D argues that the EEOC, having issued Thomas the notice of her right to sue, is barred from thereafter maintaining an action on her behalf.1
Under Defendant's theory, when the EEOC issues a Charging Party notice of his or her right to sue (other than at the specific request of the Charging Party), the EEOC has necessarily made the determination that the case is not of such public importance to warrant the EEOC's maintenance of its own action on the charge. This argument finds support in the statute, the policy against "duplicitous lawsuits" and the EEOC's own regulations.
Under the statutory scheme set forth in Section 706(f), if the EEOC has been unable to conciliate the dispute within thirty days of the filing of the charge, the EEOC is given the authority to bring an action against Respondent. Thereafter the person or persons aggrieved may, if they wish, intervene in that action. If after 180 days from the filing of the charge, it has not brought an action, or if it has not secured a conciliation agreement, the statute then requires the EEOC to notify the person aggrieved.2 There is no provision in Section 706(f)(1) for the filing of an independent EEOC lawsuit after the reference to the right-to-sue notice. Following the provision for the issuance of the right-to-sue letter, the statute speaks only in terms of permissive intervention by the EEOC, upon certification that the case is of general public importance.
It would appear, therefore, that the statutory scheme is as follows. First, the EEOC is given the opportunity to negotiate a settlement. If no settlement is reached, the EEOC then considers whether it wishes to institute a civil action. If it does determine to file a suit, the person aggrieved is given a right to intervene. If it determines that no EEOC suit is to be filed, the person aggrieved is then notified of the failure of conciliation and that the EEOC has not sued on his or her behalf, and the aggrieved party then has the right to bring an action within 90 days of the receipt of that notice.
If, while the EEOC is pondering the importance of the issue, the charging party grows impatient, he or she may, 180 days after the filing of the charge, request a "right-to-sue" notice. In such a case, however, the EEOC may still determine that the case is of sufficient public importance to warrant intervention, upon a certification that the case is of general public importance.
Defendant has submitted an Affidavit by Thomas W. McPherson, District Director of the Atlanta District Office of the EEOC, wherein Mr. McPherson testified that once conciliation efforts have been exhausted, his office refers the file to the Regional Litigation Center in order that a judgment may be made as to whether that case represents an appropriate vehicle for litigation. He testified that only in the event the Regional Litigation Center returns the file, or if the Charging Party so requests, will he issue a notice of right to sue to the aggrieved individual. The "right-to-sue" notice in this case issued following failure of conciliation. There is no suggestion that Thomas requested the notice.
While the EEOC denies the validity of the McPherson Affidavit, the EEOC's Field Manual, at Section 82.3, lends credence to C & D's interpretation:
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