Fellows v. Universal Restaurants, Inc.

Citation701 F.2d 447
Decision Date28 March 1983
Docket NumberNo. 82-1125,82-1125
Parties31 Fair Empl.Prac.Cas. 483, 31 Empl. Prac. Dec. P 33,480 Laura FELLOWS, Plaintiff-Appellant, v. UNIVERSAL RESTAURANTS, INC., Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Steven B. Thorpe, Law Offices of James C. Barber, Dallas, Tex., for plaintiff-appellant.

Warren Bo Duplinsky, Kenneth J. Burchfiel, Attys., EEOC, Washington, D.C., for amicus curiae E.E.O.C.

Michael V. Abcarian, Dallas, Tex., for defendant-appellee.

Daniel R. Levinson, Douglas S. McDowell, Robert E. Williams, Washington, D.C., for amicus curiae Equal Employment Advisory Council.

Appeal from the United States District Court for the Northern District of Texas.

Before WISDOM, RUBIN and TATE, Circuit Judges.

TATE, Circuit Judge:

Pursuant to 28 U.S.C. Sec. 1292(b) certification, the plaintiff Ms. Fellows appeals from an interlocutory order dismissing the class action allegations of her suit against the defendant, her former employer ("Universal"). Her complaint is founded upon employment discrimination against her and other females in violation of Title VII ("Equal Employment Opportunities") of the Civil Rights Act of 1964, 42 U.S.C. Secs. 2000e et seq. The district court held that it did not have jurisdiction over the class allegations of Ms. Fellows' complaint because she did not specifically state them in her initial charge of employment discrimination filed with the Equal Employment Opportunity Commission ("the EEOC"), nor had the Commission's administrative investigation included them within its scope. We reverse, finding that a dismissal for lack of jurisdiction is inappropriate because a nonfrivolous federal question was presented that requires the exercise of jurisdiction by the district court, and because the initial charges of discrimination before the EEOC were sufficiently like or related to those asserted by the class action as to support a Title VII cause of action for the class.

The Factual Context

Ms. Fellows, after applying for a position with Universal Restaurants as a waiter or captain, was hired by the restaurant as a wine steward. Shortly thereafter, she was discharged from that position. Without counsel, she filed a charge with the EEOC as is provided for under Title VII, 42 U.S.C. Sec. 2000e-5(b), alleging that she had been discriminated against on the basis of sex in her hiring, pay, and discharge. 1 The charge was filed within the delay provided by the statute, id., 2000e-5(e), a prerequisite for subsequent administrative or judicial action.

Pursuant to the Act, 42 U.S.C. Sec. 2000e-5(b), the EEOC instituted an investigation of her charge and began attempts at conciliation between the parties. This investigation included requests for information from Universal relating to Ms. Fellows' employment, and also relating to other applicants and employees of the restaurant. Universal refused to answer the latter questions as beyond the scope of the investigation. The EEOC did not seek compliance from Universal and confined its investigation solely to the claim of individual discrimination.

Shortly after the charge was filed, Ms. Fellows retained counsel, and her attorney sent a letter to Universal stating that if an amicable settlement could not be reached, a class action lawsuit would be filed. Although attempts at conciliation were made, no settlement was obtained.

After failing to process Fellows' charge within 180 days, 42 U.S.C. Sec. 2000e-5(f)(1), the EEOC issued a right-to-sue letter, and she filed this individual and class action suit alleging that Universal had discriminated against herself and other women on the basis of their sex in its recruitment, hiring, promotion, and compensation policies, all of which discriminatory conduct is implicated by Ms. Fellows' charge to the EEOC (at least as having affected her personally). See note 1 supra. On motion to dismiss by Universal for lack of jurisdiction, submitted with affidavits, the district court dismissed the class aspects of the suit, finding that the presence of either a class allegation in the EEOC charge or a class investigation by the EEOC was a jurisdictional prerequisite to a class action suit under Title VII, and that the conciliation policies of Title VII would not be served if the initial charge did not by its terms afford an opportunity for the employer to defend against, and the Commission to investigate, class discrimination not specifically complained of by the employee's initial EEOC charge.

Jurisdictional Test: In General

When a party files suit for relief under the United States Constitution or under federal statute, a federal district court may not dismiss the suit on jurisdictional grounds unless the court finds (1) that the federal claim is immaterial and made solely for the purpose of obtaining jurisdiction, or (2) that the federal claim is wholly insubstantial and frivolous. Bell v. Hood, 327 U.S. 678, 682-83, 66 S.Ct. 773, 776, 90 L.Ed. 939 (1946); Miller v. Stanmore, 636 F.2d 986, 989 (5th Cir.1981); Suthoff v. Yazoo County Industrial Development Corporation, 637 F.2d 337, 339 (5th Cir.1981), cert. denied, sub nom Yazoo County Industrial Development Corporation v. Suthoff, 454 U.S. 1157, 102 S.Ct. 1032, 71 L.Ed.2d 316 (1982). Jurisdiction "is not defeated by the possibility that the averments might fail to state a cause of action on which the petitioners could actually recover.... Whether the complaint states a cause of action on which relief could be granted is a question of law and just as issues of fact it must be decided after and not before the court has assumed jurisdiction over the controversy." Bell v. Hood, supra, 327 U.S. at 682, 66 S.Ct. at 776.

Here, Ms. Fellows clearly states a material federal claim of class employment discrimination in violation of a federal statute, Title VII, the sole basis of her suit. Considering the allegations of the complaint as true (as required for review of a dismissal thereof for lack of jurisdiction, Miller v. Stanmore, supra, 636 F.2d at 988), they would show that the defendant Universal discriminates against females as a class in its employment practices, in violation of federal law.

Thus, under Bell v. Hood, supra, her claim could be dismissed for lack of jurisdiction only if her federal class claim were wholly insubstantial and frivolous. In determining whether a federal claim meets this criterion, a two-prong test is used,

a federal question may be insubstantial either (1) because it is obviously without merit, or (2) because it is clearly foreclosed by previous decisions of the Supreme Court.

Miller v. Stanmore, supra, 636 F.2d at 989. We find neither of these criteria for dismissal are here met and, further, that for reasons to be noted the showing made shows sufficient basis for the district court's jurisdiction of the class action under Title VII as to require it to maintain its jurisdiction of this aspect of the suit.

Title VII Action: Cause of Action

The basic two statutory requirements (although these are not necessarily "jurisdictional") for a Title VII suit are (1) the filing of a complaint with the EEOC and (2) the receipt of the statutory notice of right to sue. See McKee v. McDonnell Douglas Technical Services Co., Inc., 700 F.2d 260 (5th Cir.1983). In contending that the district court lacked jurisdiction of the class action aspects of the suit, the defendant employer contends that the class subject matter of the lawsuit was not made the subject matter of a timely charge before the EEOC, because Ms. Fellows' initial complaint to the EEOC of sex discrimination related only to herself individually, not to women as a class.

It may well be that gender or "racial discrimination is by definition class discrimination", General Telephone Company of Southwest v. Falcon, --- U.S. ----, ----, 102 S.Ct. 2364, 2370-71, 72 L.Ed.2d 740 (1982), 2 and that we could end our jurisdictional inquiry there. See also Zipes v Trans World Airlines, Inc., 455 U.S. 385, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982). However, we prefer to rest our ruling upon decisions of this circuit that indicate to us that a class cause of action in this suit may be maintained in district court, despite the circumstance that on its face the initial EEOC charge by the employee literally construed may have manifested only an individual complaint.

In Sanchez v. Standard Brands, Inc., 431 F.2d 455 (5th Cir.1970), as in the present instance, the employee's initial charge and amended charge to the EEOC only alleged individual acts of discrimination against her on the basis of her sex and national origin. Subsequent to failure of EEOC efforts to secure conciliation and compliance, the employee filed suit for herself individually and for others of the class. The district court dismissed for failure to state a claim as to those allegations that went beyond the terms of the employee's initial EEOC charge. In reversing the district court's dismissal, Sanchez held that, inter alia, the scope of the employee's cause of action could include not only those charges specifically made before the EEOC but also " 'may encompass any kind of discrimination like or related to allegations contained in the charge' ", 431 F.2d at 466. The court stated: "The 'scope' of the judicial complaint is limited to the 'scope' of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination." Id.

A similar test was applied in Gamble v. Birmingham Southern Railroad Company, 514 F.2d 678 (5th Cir.1975). There, the EEOC charge by black switchmen and the subsequent EEOC investigation had only complained of the denial of promotion opportunities to conductor, but not also of the denial of promotion to higher supervisory positions, as additionally alleged by their suit's complaint. The district court held that, therefore, the latter claim was outside the "permissible scope" of the cause of action based upon the initial EEOC charge and the...

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