EQUAL EMPLOYMENT OP. COM'N v. Continental Oil Co.

• Citation: 393 F. Supp. 167
• Decision Date: 24 April 1975
• Docket Number: Civ. A. No. 74-M-776.
• Parties: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. CONTINENTAL OIL COMPANY, Defendant.
• Court: U.S. District Court — District of Colorado

393 F. Supp. 167

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. CONTINENTAL OIL COMPANY, Defendant.

Civ. A. No. 74-M-776.

United States District Court, D. Colorado.

April 24, 1975.

Gerald R. Lopez, Asst. Regional Atty., and Gloria J. Monroe, Trial Atty., E.E. O.C., Denver Regional Litigation Center, Denver, Colo., for plaintiff.

Carl F. Eiberger and Russell P. Rowe of Rovira, DeMuth & Eiberger, Denver, Colo., for defendant.

MEMORANDUM OPINION AND ORDER

MATSCH, District Judge.

The sufficiency of the complaint to state a claim for relief within the jurisdiction of this Court has been challenged by the defendant's motion to dismiss. This is a civil action initiated by the Equal Employment Opportunity Commission (hereinafter EEOC) pursuant to 42 U.S.C. § 2000e et seq. It is alleged that more than thirty days before institution of this action charges were filed with the EEOC alleging that the defendant had engaged in unlawful employment practices under Title VII of the Civil Rights Act of 1964, as amended. It is also alleged that after investigating and finding reasonable cause to believe that defendant had engaged in unlawful employment practices the EEOC has been unable, through informal methods of conference, conciliation and persuasion, to secure a conciliation agreement acceptable to the EEOC.

The EEOC contends that since July 2, 1965 and continuously until the time of the complaint, Continental Oil Company intentionally engaged in unlawful employment practices at a facility located in Commerce City, Colorado, including discrimination by failing to hire and recruit blacks and Spanish-surnamed Americans because of their race and national origin. It further is alleged that there has been discrimination by maintaining educational requirements and using tests which discriminate against blacks and Spanish-surnamed Americans and by utilizing subjective personnel selection criteria which screen out blacks and Spanish-surnamed Americans because of their race and national origin.

In its complaint the EEOC claims that such policies and practices have deprived blacks and Spanish-surnamed Americans of equal employment opportunity and otherwise adversely affected their status as employees because of their race and national origin. The relief requested is to grant a permanent injunction preventing the defendant from engaging in any employment practice which discriminates because of race and national origin and to order the defendant to institute and carry out affirmative action programs as well as to provide appropriate back pay and other affirmative relief necessary to eradicate the effects of the alleged unlawful employment practices.

TIMELINESS OF THIS ACTION

Continental claims that this civil action must be dismissed because it does not allege specifically that suit was filed within 180 days from the filing of a charge of discrimination with the Commission. That question has now been considered by many judges in many courts. My distinguished colleague on this court, Judge Hatfield Chilson, construed the statute to impose such a time limitation in Equal Employment Opportunity Commission v. Wilson and Company, Inc., 387 F.Supp. 1224 (D.Colo.1975). The analysis of the language of the statute made by Judge Chilson in that case is clear and cogent. It is not, however, convincing to me. I am persuaded by the opinions in Equal Employment Opportunity Commission v. Cleveland Mills, 502 F.2d 153 (4th Cir. 1974); Equal Employment Opportunity Commission v. Louisville & Nashville Railroad Co., 505 F.2d 610 (5th Cir. 1974) and Equal Employment Opportunity Commission v. Kimberly-Clark Corporation, 511 F.2d 1352 (6th Cir. 1975). While it must be conceded that the language used in this legislation is less than communicative, I share the conclusion in these cases that there was no Congressional intent to limit the time within which the Commission could sue. Although there is no need to repeat the analysis of those cases here, an additional point, not articulated in the previously decided cases, deserves some attention. It is to be noted that before March 1972, the Attorney General was the only governmental agency authorized to initiate any court action under the 1964 Civil Rights Act and the Attorney General's authority was limited to bringing pattern and practice suits. During that time, the EEOC was limited to its role of attempting to achieve conciliation. The 1972 amendment gave the EEOC concurrent authority to sue in the pattern or practice cases. 42 U.S.C. § 2000e-6.¹ The EEOC also was given power under § 2000e-5 to institute suits based on "unlawful employment practices" affecting individuals and not constituting a pattern or practice of discrimination. Further, whenever a charge is filed with the Commission, it initiates an investigation and ultimately, after following the procedures outlined in the statute, determines whether it will file suit on either of those bases. An investigation resulting from a charge of an individual act of discrimination can result in a "pattern or practice" suit if the EEOC investigation shows reasonable cause for that action.² 42 U.S.C. § 2000e-6, authorizing pattern or practice suits, contains no language of limitation. To contend that there is a time limitation on the Commission in a pattern or practice suit it is necessary to say that because there is language in § 2000e-6(e) that all such actions by the Commission shall be conducted in accordance with the procedures in § 2000e-5, it was intended that there be a time limitation.

It would seem more consistent with the Civil Rights Act as a whole to conclude that there are essentially only two types of civil action authorized.³ The first is the individual's suit to redress a particular act of discrimination. The second is the public suit against a pattern or practice of discrimination. The 180 day time limit in § 2000e-5 is for the protection of the individual. After he has made his charge the Commission has the 180 days within which to seek conciliation. If those efforts fail and the individual wishes to go forward, he may demand the right to sue letter. His civil action can then be commenced within the 90 day period. On the other hand, the Commission can continue its investigation and conciliation and can ultimately determine whether to file a "pattern or practice" action. Such an action can include a remedy which will redress the individual grievance. The purpose of the time limitation then is to provide the individual with a choice between the alternatives of going to court on his claim or permitting the Commission to determine whether it wishes to seek relief for him and others in a "pattern or practice" action.

The arguments against this conclusion include assumptions of unfairness from having to litigate on stale facts, potential harassment of employers and contravention of a policy of prompt resolution of such claims. These arguments are presumptive and inappropriate to the threshold question of dismissal for failure to state a claim upon which relief can be granted. The remedies to be applied by a court in an action of this type are equitable remedies and the equitable defenses of laches, estoppel, duress, waiver and fraud are available in such actions. It is difficult to foresee how an undue delay in initiating an action would be prejudicial or inequitable if it did not fall within one of these traditional defenses. Under F.R.C.P. 8(c) it is the burden of the defendant to plead and prove such matters of avoidance or affirmative defense.

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