EQUAL EMPLOYMENT OP. COM'N v. Kimberly-Clark Corp.

• Decision Date: 27 March 1974
• Docket Number: No. C-73-42.,C-73-42.
• Citation: 380 F. Supp. 1106
• Parties: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. KIMBERLY-CLARK CORPORATION, Defendant.
• Court: U.S. District Court — Western District of Tennessee

380 F. Supp. 1106

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. KIMBERLY-CLARK CORPORATION, Defendant.

No. C-73-42.

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

March 27, 1974.

William A. Carey and Katherine A. Mazzaferri of the Equal Employment Opportunity Commission, Washington, D. C., for plaintiff.

J. Fraser Humphreys, Jr. and Alexander W. Wellford, Jr., of Lawler, Humphreys & Dunlap, Memphis, Tenn., J. Leonard Samansky, Lipkowitz, Plaut, Solberg & Harris, New York City, for defendant.

ORDER ON MOTION TO CONSOLIDATE AND ON MOTION FOR SUMMARY JUDGMENT AND TO STRIKE

WELLFORD, District Judge.

This suit was filed by the Equal Employment Opportunity Commission (E.E.O.C.) on February 2, 1973, raising various broad allegations of sex discrimination as well as several additional allegations of racial discrimination. The sole defendant named was Kimberly-Clark Corporation, and the alleged violations involved the Memphis mill or plant. In response to the Court's orders granting defendant's Motion for a More Definite Statement, the E.E.O.C. filed an amended complaint on June 15, 1973, and a second amended complaint on June 28, 1973, in which the E.E.O.C. set forth the details of the charges upon which suit was based. Of these charges, only one, that of Floyd L. Munn, Jr., contained allegations of racial discrimination, and the remaining charges contained allegations of sex discrimination. On the grounds that none of the charges formed a proper basis for suit by the E.E.O.C. and that the E.E.O.C. had not properly complied with the Court's orders, the defendant filed on July 16, 1973, a Motion for Summary Judgment or Motion to Strike or Motion to Compel Compliance with the Court's orders.

As part of the Motion for Summary Judgment, the defendant contended that any allegations of racial discrimination based upon the charge filed by Floyd L. Munn, Jr. were improper and should be dismissed, since suit had already been filed in the Munn case based upon the same charge. In a supplemental memorandum filed by the defendant, it was argued that consolidation was improper and that the E.E.O.C. should have sought to intervene in the pending class action as provided in the Equal Employment Opportunity Act of 1972 (the "1972 Act").

Insofar as the E.E.O.C.'s only racial discrimination claims in this case were based upon the Munn charge, it duplicates charges made by experienced and competent counsel for Munn who filed suit alleging violations of Title VII against Kimberly-Clark and several locals of the United Paperworkers International Union in this Court on August 31, 1972 (No. C-72-300). E.E.O.C. now seeks consolidation of this case with the Munn (and his co-plaintiff Charlie R. Jones, Jr.) case. Both Kimberly-Clark and the unions oppose the consolidation asserting that the E.E.O.C. should be bound to follow Section 706(f)(1) Title VII requirements of intervention.

This Court has sustained similar arguments in E.E.O.C. cases previously. E.E.O.C. v. McLean Trucking, et al, 7 EPD § 9178, (No. C-72-313, 1974) and E.E.O.C. v. ET & WNC Transportation, et al, (No. C-72-280, 1974). See E.E. O.C. v. Missouri Pacific Railroad, 493 F.2d 71 (8th Cir. 1974); Crump v. Wagner Elec. Corp., 369 F.Supp. 637 (E.D.Mo.1973); E.E.O.C. v. Cronin, (E.D.Mo.1973); E.E.O.C. v. Union Oil Co. of Calif., 369 F.Supp. 579 (N.D.Ala. 1974). As stated in the Missouri Pacific case, supra:

"The scheme of the statute itself, as thus described, negates the Commission's double-barreled approach. Once either the Commission or the charging party has filed suit, Section 2000e(f)(1)¹ speaks only in terms of intervention — the absolute right of the charging party to intervene if the Commission elects to file suit within 180 days; the permissive right of intervention on the part of the Commission in the private action. The statute cannot be read to warrant duplicitous lawsuits when both actions find their genesis in one unlawful employment practice." (emphasis ours)

A charge based on sex discrimination is not per se a basis for a suit asserting both sex and racial discrimination. E.E.O.C. v. New York Times, d/b/a WREC-TV, (W.D.Tenn. 1974); Fix v. Swinerton, 320 F.Supp. 58 (D.C.Colo.1970). Compare Sanchez v. Standard Brands, 431 F.2d 455 (5th Cir. 1970). Under the circumstances here, particularly since the Munn case pending will be concerned solely with racial discrimination matters, the discrimination by reason of race or color allegations and prayers for relief based solely on the Munn charge should be dismissed. Defendant's motion to strike in this respect will be granted without prejudice to the E.E.O.C.'s permissive right of intervention in No. C-72-300, or even to bring a subsequent action on any other appropriate racial discrimination charges.

The bulk of the sex discrimination charges upon which E.E.O.C. bases its cause of action are what have been referred to by the parties as the "Meek group of charges." These charges involve alleged discrimination by defendant in respect to lay-offs of certain female employees in 1965 and in 1966, and as to which suit was filed in this Court in 1966, Cooper, et al. v. Kimberly-Clark Corp., et al., No. C-66-251. All ten of the "Meek group" females through their retained counsel filed charges with the E.E.O.C. prior to suit in that case, asserting a class action complaint against the employer and Local 704 of the Paper Mill Workers.² After a full opportunity for hearing on the merits and the adequacy and propriety of settlement, the Court entered on December 8, 1967 an order in accordance with a stipulation and settlement, which set out, in pertinent part:

"The complaint in this action . . . is dismissed on the merits, . . . and judgment . . . is in full and final discharge and satisfaction of any and all claims, or causes of action, or part or parts thereof, against any and all defendants herein and with respect to any and all claims and demands growing out of or arising from or based upon any transaction, matter or cause, either involved in, alleged or referred to . . . directly or indirectly, in this action and the complaint filed herein."

The "Meek group" in 1971 filed charges again with the E.E.O.C. pertaining to the 1965 lay-offs, but adding that "the company refuses to restore our seniority rights," particularly by "refusing to give us credit, for seniority and other purposes, for a period of time we were unlawfully in lay-off status during 1965 and 1966." The company now asserts that the ten females comprising this "Meek group" are estopped from further proceedings by reason of the 1967 court approved settlement, and that principles of equitable estoppel, collateral estoppel and/or res adjudicata should now prevent the E.E.O.C. from proceeding with a new cause of action herein based on these same charges.

"A consent judgment or decree based on a compromise and settlement precludes the parties and their privies from maintaining an action upon any claim within the scope of such compromise and settlement, although such claim was not in fact litigated in the suit in which the judgment or decree was entered."³ (emphasis ours).

See All States Investors v. Sedley, 399 F.2d 769, 773 (6th Cir. 1968); Acree v. ALPA, 390 F.2d 199, 202 (5th Cir. 1968), cert. den. 393 U.S. 852, 89 S.Ct. 88, 21 L.Ed.2d 122. A party knowingly participating in a judicial proceeding, and obtaining and accepting benefits therefrom by way of judgment to the detriment of the other party, is bound thereby and should be estopped from later challenging or derogating that judgment. 31 C.J.S. Estoppel § 115. See American Nat'l Bank v. Taussig, 255 F. 2d 765, 768 (7th Cir. 1958); St. Louis Typographical Union v. Herald Co., 402 F.2d 553 (8th Cir. 1968).

There are further reasons that those in the Meek group⁴ who file charges in 1971 should not be considered as a basis of this action by E.E.O.C. On November 10, 1972, all of these females signed an agreement amounting to a waiver and release of claims against defendant with respect to adjustments to service dates for seniority purposes. They are further estopped from pursuing any claim, and, for the reasons stated, neither should the E.E.O.C. under these circumstances be permitted to rely upon these claims relating to 1965 and 1966 lay-offs. E.E.O.C. further admits in its reply to defendant's motion that the Commission did not issue a formal decision of reasonable cause in this group of charges. (p. 17) It has therefore failed to comply with administrative requirements on these charges preliminary to instituting suit thereon. We need not reach the question as to whether the Meek group of charges, or amended charges, were timely filed.

Rule 23, dealing with class actions, was amended in 1966, "in part to make it clear that civil rights suits for injunctive or declaratory relief can be brought as class actions. . . . Moreover, by their very nature, civil rights class actions almost invariably involve a plaintiff class."⁵ That same authority goes on to point out that "according to traditional res judicata notions, a member of the class in a Rule 23 suit is considered to be a party by representation, and will be bound to the same extent as an actual party." (Sec. 1789). The "Meek group" were the representatives of the E.E.O.C. in a practical sense in the 1966 class action suit alleging sex discrimination, and the E.E.O.C. as a "privy" to that group of plaintiffs should not now be heard to assert a later cause of action either to undo or to obtain greater relief than was accorded to those plaintiffs under the order and judgment specifically approving the "fairness, adequacy and propriety of the proposed settlement and compromise." Insofar, therefore, as the action of the E.E.O.C. pertains to the complaining class of females effected by the 1967 judgment and order of this Court in Cause No. C-66-251, relating to the prior "lay-off of girls because of lack of work . . . not based on...