EQUAL EMPLOYMENT OP. COM'N v. Rinella & Rinella

• Decision Date: 22 July 1975
• Docket Number: 75 C 702.,No. 74 C 2861,74 C 2861
• Citation: 401 F. Supp. 175
• Court: U.S. District Court — Northern District of Illinois
• Parties: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. RINELLA & RINELLA, Defendant. WOMEN EMPLOYED, an Illinois not-for-profit Corporation, as agent for and on behalf of Arlene Nagy, one of its members, and Arlene Nagy, Plaintiffs, v. RINELLA & RINELLA, and Samuel A. Rinella, Defendants.

401 F. Supp. 175

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. RINELLA & RINELLA, Defendant.

WOMEN EMPLOYED, an Illinois not-for-profit Corporation, as agent for and on behalf of Arlene Nagy, one of its members, and Arlene Nagy, Plaintiffs, v. RINELLA & RINELLA, and Samuel A. Rinella, Defendants.

Nos. 74 C 2861, 75 C 702.

United States District Court, N. D. Illinois, E. D.

July 22, 1975.

COPYRIGHT MATERIAL OMITTED

Cotton, Watt, Jones, King & Bowlus, Chicago, Ill., Peggy A. Hillman, for plaintiff.

Anna R. Lavin, Edward J. Calihan, Chicago, Ill., for defendant.

OPINION

WILL, District Judge.

The two related lawsuits now pending before this Court, Equal Employment Opportunity Commission v. Rinella & Rinella, No. 74C 2861, and Women Employed, et al. v. Rinella & Rinella, et al., No. 75C 702, both arise under Title VII of the Civil Rights Act of 1964, and involve charges of sex discrimination. Arlene Nagy was employed by the defendants¹ as a legal secretary from January 1971 to March 1973, when she resigned and from October 1973, when she was rehired, to July 10, 1974 when she was discharged. From March of 1974, she was also a member of Women Employed, an Illinois not-for-profit corporation whose purpose is to oppose discrimination based on sex and otherwise to work to improve the employment status and working conditions of women in Chicago, Illinois.

Between March 1973 and July 30, 1974, Ms. Nagy engaged in various activities in opposition to what she alleges to be unlawful employment practices by Rinella & Rinella, which discriminated against women. These activities included joining Women Employed, soliciting other women employees of Rinella & Rinella to join Women Employed, attending meetings and participating in the activities of Women Employed, and publicly alleging that Rinella & Rinella discriminated on the basis of sex in its health insurance benefits. On July 30, 1974, Samuel A. Rinella, the owner of the law firm, discharged Ms. Nagy because of her participation in these activities.

Women Employed, on August 26, 1974, filed a charge with the Commission stating that Rinella & Rinella, in violation of Section 704(a) of Title VII, 42 U.S.C. § 2000e-3(a), intentionally discriminated against Arlene Nagy by unlawfully discharging her, and that the firm, by and through its partner, Samuel Rinella, intentionally discriminated against other female employees by interrogating them concerning their membership in Women Employed and threatening to discharge them if they joined or participated in the activities of Women Employed. The Commission conducted a preliminary investigation and the District Director of the Commission's Chicago District Office concluded, in accordance with Section 706(f)(2), that prompt judicial action in the form of preliminary relief was necessary to carry out the purposes of Title VII. Consequently, on October 7, 1974, the Commission filed a petition for preliminary relief against Rinella & Rinella pursuant to Section 706(f)(2), 42 U.S.C. § 2000e-5(f)(2) seeking, inter alia:

1. A preliminary injunction preventing defendants from interfering with or prohibiting employees from participating in the Commission's investigation.

2. A preliminary injunction preventing defendants from taking retaliatory action in violation of Section 704(a).

3. An order reinstating Arlene Nagy pending the investigation.

4. An order authorizing Arlene Nagy to receive back pay and all other benefits of her employment.

5. An order compelling the defendants to explain to their female employees that they will not interfere with the investigation or take retaliatory action.

During the pendency of this action, on February 24, 1975, the Commission under the signature of a deputy director of the Chicago District Office, issued a right-to-sue letter to Women Employed. Thereafter, on March 4, 1975, Women Employed, as agent for and on behalf of Arlene Nagy, and Arlene Nagy, filed the second lawsuit under Section 706(f)(1) of Title VII, 42 U.S.C. § 2000e-5(f)(1), seeking permanent relief in the form of:

1. An injunction restraining the defendants from discriminating against Arlene Nagy.

2. An order requiring defendants to reinstate Arlene Nagy.

3. An order authorizing Arlene Nagy to receive all back pay and other benefits of her employment.

4. A declaratory judgment finding defendants' policy of intimidating and interrogating employees to be discriminatory which should be eliminated.

The defendants have filed motions to dismiss both lawsuits raising numerous alleged jurisdictional and procedural deficiencies. Specifically, their totally non-frivolous claims include:

1. The court is without subject matter jurisdiction in that:

a. The defendant does not qualify as an employer engaged in an industry affecting interstate commerce.

b. The defendant has not continuously employed fifteen (15) or more persons.

2. A petition for preliminary relief involving an uninvestigated charge of discrimination does not involve a case or controversy.

3. There has been a failure to comply with statutory prerequisites in that:

a. The original charge was filed by Women Employed and not the aggrieved party.

b. The initial charge was not made within the 180 days required under 42 U.S.C. § 2000e-5.

c. The second law suit was filed by Women Employed which is not an aggrieved party as required by the Act.

d. The "Notice of Right to Sue Within Ninety Days" purporting to authorize the second action issued during the pendency of another action based upon the same facts and arising out of the same complaint filed before the Commission by Women Employed, violated 42 U.S. C. § 2000e-5(f)(1) e. The "Notice of Right to Sue Within Ninety Days" is illegal and void since it was issued by a "Deputy Director", not by the Commission, nor was any provision made for, nor were defendants notified of, any right of review by the Commission.

4. Samuel A. Rinella, described as an agent of Rinella & Rinella, should be dismissed from the second suit as an improper party.

For the reasons set forth hereinafter, we find none of defendants' arguments offered in support of their motions to be meritorious and, accordingly, their motions to dismiss will be denied.

I. SUBJECT MATTER JURISDICTION

The plaintiffs allege that the defendant law firm is an employer within the meaning of Section 701(b) of Title VII, 42 U.S.C. § 2000e(b) and is, therefore, subject to the proscriptions of the Civil Rights Act of 1964. The term "employer" is defined by the Act as:

. . . a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such person . . ..

Title VII goes on to define an "employee" in almost unrestricted terms:

The term "employee" means an individual employed by an employer . . ..

The defendants admit that they employed at least eleven employees during the relevant period consisting of secretaries and other clerical personnel and law clerks. Ms. Nagy's status as an employee is contested by the defendants; however, it would appear that she constituted a twelfth employee. The firm also included a group of lawyers which ranged from six to eight during the period under investigation. It is the defendants' contention that, due to the nature of these attorneys' status, they were independent contractors and not employees of the firm. As such, defendants contend, their numbers may not be applied toward reaching the required fifteen employees, and, accordingly, the firm is beyond the purview of Title VII.

The defendants argue that a primary consideration in determining whether an individual is an employee is whether the employer had the power to direct, control and supervise the employee in the performance of his work. The defendants contend that the element of control is not present here. They stress that the lawyers associated with the firm divide fees on the basis of productivity pursuant to a pre-arranged agreement providing for periodic salary draws, that the attorneys have no fixed office hours, set their own vacation schedules, and fix the fees in those cases for which they have responsibility. They further claim that the lawyer to whom a case is assigned is solely responsible for working on that case and does not receive instructions or guidance.

While the defendants' representations would indicate that, as professionals, the attorneys associated with Rinella & Rinella are subject to minimal direct supervision, the conclusion that the defendants would have us accept — that professional employment situations are not covered by Title VII — clearly is not the case. That sections 701, 703 and 704(a) of Title VII were intended to reach "professionals" is borne out by the legislative history of the 1972 amendments to Title VII. In the course of Senate debate over a proposed amendment designed to exclude from Title VII physicians and surgeons employed by public or private hospitals, Senator Williams said:

As I stand here leading the debate on this measure, I try to think as a young person who has gone through that long, hard and expensive trail to be the graduate of a medical school, be he man or woman, black or white, or whatever national ancestry. I say that in this Nation, which so badly needs doctors, it would be a terrible crime if because of ethnic background, sex, race or religion, the American people were denied the services of the new doctor.

That is exactly what this amendment would do. It would take from a doctor the protection that the Constitution gives him and would protect through this law. I think it would be against all that this country holds itself up to be, in an area of one of our greatest needs. 118 Cong.Rec. 1647.

In the same debate, Senator Javits stated:

One of the things that those discriminated against have resented the most is that they are relegated to the position of the sawers of wood and the

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