EQUAL EMPLOYMENT OP. COM'N v. WILSON AND CO., INC.

• Decision Date: 27 January 1975
• Docket Number: Civ. A. No. 74-C-197.
• Citation: 387 F. Supp. 1224
• Parties: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. WILSON AND COMPANY, INC., Defendant.
• Court: U.S. District Court — District of Colorado

387 F. Supp. 1224

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. WILSON AND COMPANY, INC., Defendant.

Civ. A. No. 74-C-197.

United States District Court, D. Colorado.

January 27, 1975.

Sylvian R. Roybal, Denver Regional Litigation Center, Denver, Colo., for plaintiff.

Richard L. Schrepferman, and Edmond F. Noel, Jr., Denver, Colo., for defendant.

OPINION AND ORDER

CHILSON, District Judge.

This is an action brought by the Equal Employment Opportunity Commission (EEOC) for injunctive and monetary relief for defendant's alleged discriminatory unlawful employment practices as defined in 42 U.S.C. § 2000e-2.

Raymond Bernal filed charges of discrimination against defendant with the EEOC on October 19, 1970, and January 11, 1971. (Affidavit of Jack E. Bolgren, April 22, 1974.) On the "Charge of Discrimination" forms supplied by the EEOC, Mr. Bernal indicated that the alleged discrimination took place on or about February 9, 1970 "& continuing." Specifically Mr. Bernal complained that he had been assigned to the difficult task of "strapping and lifting" in defendant's meat-processing plant solely on the basis of his national origin, "Spanish speaking American," in total disregard of his health and safety. After finding reasonable cause to believe that Mr. Bernal's charges were true, the EEOC sent the required "Notice of Right to Sue" to Mr. Bernal on January 27, 1972. Mr. Bernal did not initiate suit against defendant.

Beginning on or about January 23, 1973, Ms. Cheryl Hinton, representing the EEOC, attempted to negotiate an acceptable conciliation agreement with defendant as required by 42 U.S.C. § 2000e-5(f)(1). After a period of negotiation, Ms. Hinton notified defendant that she had been unable to convince Mr. Bernal, the charging party, to accept defendant's proposed conciliation agreement. Thereafter, by letters dated September 7, 1973, and December 20, 1973, the EEOC notified defendant that it was terminating its conciliation efforts because the charging party had declined defendant's offer (letter of September 7, 1973) and that the offer was therefore not acceptable to the Commission (letter of December 20, 1973). The EEOC also informed defendant of the procedure to be followed for reopening the conciliation negotiations. Defendant took no action in this regard.

The EEOC initiated this action by filing a complaint on March 1, 1974. The Court permitted the EEOC to amend its complaint on January 15, 1975. By its amended complaint, the EEOC alleges that more than 30 days have elapsed since Mr. Bernal filed his charge of discrimination; that the EEOC has found reasonable cause to believe defendant has engaged in unlawful employment practices as defined in Title VII of the Civil Rights Act; and that the EEOC has been unable to obtain an acceptable informal conciliation agreement from defendant. On the basis of Mr. Bernal's discrimination charge, the EEOC claims that:

"Since at least July 2, 1965 and continuously up until the present time, Defendant has intentionally engaged in unlawful employment practices against Raymond Bernal at its Denver, Colorado facility, in violation of Section 703 of Title VII, including, but not limited to, the following:

"A. On or about February 9, 1970, the Company assigned Raymond Bernal the difficult task of strapping and lifting on the basis of his national origin, Spanish-surnamed American;

"B. Said task of strapping and lifting had previously been done on a rotational basis among the three Anglo and two Spanish-surnamed American employees (Mr. Bernal and Mr. Vega), in the Company's Meat Specialty Department;

"C. As a result of unlawfully assigning Mr. Bernal to the strapping and lifting job, Mr. Bernal has suffered personal expenses and loss of equal employment opportunities because of his national origin, Spanish-surnamed American."

Amended Complaint at Paragraph 8. The amended complaint prays for an order enjoining defendant "from engaging in any employment practice which discriminates against Bernal because of national origin," and for monetary compensation for the effects of the alleged discrimination, including back pay.

On April 19, 1974, defendant filed motions to dismiss, for summary judgment and to strike. In its motions and supporting brief, defendant maintains that the action must be dismissed as being untimely brought since the EEOC commenced action more than 180 days after Mr. Bernal filed his charge of discrimination. Alternatively, defendant asserts that the complaint must be dismissed as untimely under the applicable Colorado statute of limitations, C.R.S. 87-1-7 (1963), as amended.

Defendant also seeks dismissal because the EEOC failed to satisfy a condition precedent to bringing suit. The EEOC may file suit only if it is unable to secure an acceptable conciliation agreement from defendant; defendant claims that the EEOC was able to secure such an agreement.

As to all of these claims, defendant asserts that there is no genuine issue of material fact left to be resolved and that summary judgment is thus appropriate.

Defendant finally claims that the EEOC's prayer for monetary relief regarding the individual employee's back pay must be stricken as untimely under C.R.S. 87-1-7 (1963), as amended.

In response to defendant's brief, the EEOC has filed an opposing brief to which defendant has replied.

The EEOC's motion for a temporary restraining order and for a preliminary injunction based on alleged retaliatory practices against Mr. Bernal and several witnesses on his behalf was denied by this Court on July 16, 1974.

Defendant's motion to dismiss the action should be granted for the reasons which follow.

The EEOC premises jurisdiction of this action on 42 U.S.C. § 2000e-5(f) (authorizing EEOC to bring suit), 28 U.S.C. § 1345 (United States or agency thereof as plaintiff), and 28 U.S.C. § 451 (defining agencies of the United States).

I. TIME WITHIN WHICH EEOC MUST COMMENCE SUIT

Defendant's primary contention on this motion to dismiss and for summary judgment is that 42 U.S.C. § 2000e-5(f) (1), as amended in 1972, imposes a 180-day limitation period after the filing of charges of discrimination with the EEOC after which the EEOC may not file suit. 42 U.S.C. § 2000e-5(f)(1) provides in pertinent part:

"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 not a government, governmental agency, or political subdivision 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 . . . by the person claiming to be aggrieved . . .. Upon timely application, the court may, in its discretion, permit the Commission . . . to intervene in such civil action upon certification that the case is of general public importance. Upon request, the court may, in its discretion, stay further proceedings for not more than sixty days pending the termination of State or local proceedings described in subsections (c) or (d) of this section or further efforts of the Commission to obtain voluntary compliance."

It is undisputed in this case that the EEOC filed suit more than 180 days after Mr. Bernal filed his charges of discrimination on October 19, 1970 and January 11, 1971. The EEOC filed suit on March 1, 1974, more than three years after the last charge of discrimination was filed.

To date several Federal District Courts and two Circuit Courts of Appeal have had occasion to consider the allowable time within which the EEOC must commence a Title VII suit. The courts have had some difficulty in resolving this question. On the one hand, the following cases have held that there is no period of limitations expressed in the Act, or implied from its history and purpose, within which the EEOC must file suit: EEOC v. Louisville & Nashville Railroad Co., 505 F.2d 610 (5th Cir. 1974), rev'g, 368 F.Supp. 633 (N.D.Ala.1974); EEOC v. Cleveland Mills Co., 502 F.2d 153 (4th Cir. 1974), rev'g, 364 F.Supp. 1235 (W.D.N.C.1973); EEOC v. United Aircraft Corp., 383 F.Supp. 1313 (D.Conn. 1974); EEOC v. Western Electric Co., Inc., 382 F.Supp. 787 (D.Md.1974); EEOC v. Christiansburg Garment Co., Inc., 376 F.Supp. 1067, 1070 (W.D.Va. 1974); EEOC v. E. I. DuPont Nemours and Co., 373 F.Supp. 1321 (D.Del.1974); EEOC v. Huttig Sash and Door Co., 371 F.Supp. 848 (S.D.Ala.1974); EEOC v. United States Industries, Inc., 7 EPD^* Paragraph 9068 (W.D.Tenn., January 3, 1974), immediate appeal granted, 7 EPD Paragraph 9295 (W.D.Tenn., April 4, 1974); EEOC v. International Paper Co., 8 EPD Paragraph 9610 (W.D.Mich., October 10, 1973); EEOC v. Rollins, Inc., 8 EPD Paragraph 9557 (N.D.Ga., June 7, 1974); EEOC v. Bartenders International Union (AFL-CIO), Local Union No. 41, 369 F.Supp. 827 (N.D.Cal.1973); EEOC v. Eagle Iron Works, 367 F.Supp. 817 (S.D.Iowa 1973); EEOC v. Duff Brothers, Inc., 364 F.Supp. 405, 406 (E. D.Tenn.1973); EEOC v. Mobil Oil Corp., 362 F.Supp. 786 (W.D.Mo.1973); EEOC v. Hickey-Mitchell Co., 372 F.Supp. 1117 (E.D.Mo.1973).

On the other hand, the following cases have held that the EEOC must file suit within 180 days after the administrative filing of the last individual charge of discrimination with the EEOC: EEOC v. General Dynamics Corp., 382 F.Supp. 59 (N.D.Tex.1974); EEOC v. United States Pipe and Foundry Co., 375 F.Supp. 237 (N.D.Ala.1974); EEOC v. Kimberly-Clark Corp., 380 F.Supp. 1106 (W.D.Tenn.1974); EEOC...