Ferguson v. Mobil Oil Corp.

• Decision Date: 24 January 1978
• Docket Number: No. 76 Civ. 4339-CSH.,76 Civ. 4339-CSH.
• Parties: Robert FERGUSON, Plaintiff, v. MOBIL OIL CORPORATION, William F. Seitter and Petroleum Trades Employees Union, Defendants.
• Court: U.S. District Court — Southern District of New York

443 F. Supp. 1334

Robert FERGUSON, Plaintiff, v. MOBIL OIL CORPORATION, William F. Seitter and Petroleum Trades Employees Union, Defendants.

No. 76 Civ. 4339-CSH.

United States District Court, S. D. New York.

January 24, 1978.

Robert Ferguson, pro se.

Geoffrey A. Smith, Scarsdale, N. Y., for defendants.

MEMORANDUM OPINION AND ORDER

HAIGHT, District Judge:

Defendant Mobil Oil Corporation ("Mobil") has moved pursuant to Fed.R.Civ.P. 8(a), 12(b)(1) and 12(b)(6) for an order dismissing the entire complaint or, in the alternative, dismissing a portion of the complaint. This Court has determined that for the reasons stated herein, there is no subject matter jurisdiction with regard to a portion of said complaint and consequently that particular claim must be dismissed. However, the remainder of the complaint warrants retention and accordingly Mobil's motion is granted in part and denied in part.

FACTUAL AND PROCEDURAL BACKGROUND

After having worked for Mobil for almost ten years the plaintiff was discharged on or about November 26, 1973. Prior to this discharge there appear to have been several instances where the plaintiff had been disciplined by the defendant via suspension and/or fines for allegedly violating various employment regulations.¹ The plaintiff later contended in his charge before the Equal Employment Opportunity Commission ("EEOC") that these instances and the November 1973 discharge were the products of false charges and discriminatory treatment on the part of Mobil due to plaintiff's race.

Plaintiff filed charges with the EEOC on November 11, 1974 and with the New York State Division of Human Rights on December 2, 1974 alleging his discharge was due to his race and that the predischarge treatment was unfair and similarly due to his race.

On or about April 18, 1975 the New York State Division of Human Rights ordered that the plaintiff's charge be dismissed and this order was affirmed on March 14, 1977 by the New York State Human Rights Appeal Board. On or about May 20, 1976 the EEOC dismissed plaintiff's charge, finding no reasonable cause and on May 24, 1976 plaintiff received his Notice of Right to Sue.

The complaint in this action was filed pro se on September 30, 1976, averring jurisdiction in this Court on the basis of the Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. The gravamen of the complaint consists of a) unfair discrimination in the plaintiff's November 1973 discharge by Mobil and b) a "blacklisting" charge which reads as follows:

"Following my discharge by the Mobil Oil Company in 1973 I sought employment or was employed by three (3) other oil companies. However, as a direct result of information supplied by the Mobil Company or by its Terminal Manager, William F. Seitter, I was discharged from two (2) of these positions and rejected for employment with regard to the third. These acts have resulted in my current unemployment and have in affect sic `black listed' me in the trade." Complaint ¶ 9.

Mobil has previously moved for a dismissal of the action as being untimely filed. That motion was denied by this Court and a memorandum opinion explaining said denial was issued on May 4, 1977. Ferguson v. Mobil Oil Corp., 76 Civ. 4339-CSH (S.D.N. Y.1977).

DISCUSSION

I.

The grounds propounded by Mobil in the instant motion as warranting a dismissal of the entire action suggest that the plaintiff's allegations are so ambiguous and conclusory that the defendants cannot reasonably be expected to formulate responsive pleadings, citing Edwards v. North American Rockwell Corp., 291 F.Supp. 199 (C.D.Cal.1968).

Rule 8(a)(2) of the Federal Rules of Civil Procedure requires "a short and plain statement of the claim showing that the pleader is entitled to relief." In Edwards the court, addressing this particular issue, characterized the claims as "purely conclusory in nature and do not provide the defendant with even an abbreviated factual summary" which led to the result that the "defendant cannot properly or safely prepare a responsive pleading." 291 F.Supp. at 212.

That situation has not recurred here. Although, as the defendant points out, any specific discriminatory behavior other than the discharge and the "blacklisting" is not averred in the complaint, the defendant is in no sense prejudiced thereby to the point it cannot adequately respond, as was the case in Edwards. In the charge filed with the EEOC, the plaintiff referred to at least six (6) instances of discipline received when it was alleged the penalty would have been less severe were the plaintiff a white employee. These instances would appear to be potential elements of the proof to be proffered by Mr. Ferguson as to the discrimination in his discharge. Moreover, when combined with the requisites of a Title VII prima facie case, see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973),² the defendant clearly has adequate notice of the factual premises in the case brought herein, see McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273, 283 n. 11, 96 S.Ct. 2574, 49 L.Ed.2d 493 (1976). Although the McDonnell Douglas elements do not govern in every Title VII action, they provide an adequate signal to the parties regarding what the plaintiff must prove.

Additionally, the fact that this action was brought, and is being conducted, pro se requires that the "charges are to be construed broadly and in a liberal manner in order to effect the `remedial and humanitarian underpinnings of Title VII and of the crucial role played by the private litigant in the statutory scheme.'" Equal Employment Opportunity Commission v. Western Publishing Co., Inc., 502 F.2d 599, 602-03 (8th Cir. 1974), quoting Sanchez v. Standard Brands, Inc., 431 F.2d 455, 460 (5th Cir. 1970).

Consequently this Court has determined that the complaint is sufficiently specific to avoid a dismissal of the entire action at this juncture and that the Court thus has subject matter jurisdiction over the Title VII allegations and any claims properly "pendent" thereto. See Almenares v. Wyman, 453 F.2d 1075, 1084 (2d Cir. 1971), cert. denied, 405 U.S. 944, 92 S.Ct. 962, 30 L.Ed.2d 815 (1972).

II.

The defendant has also moved in the alternative for a dismissal of the "blacklisting" claim forwarded by the plaintiff. The propriety of such a dismissal turns on a) whether it may be included now in this Title VII action as an "unlawful employment practice" and, if that question be answered in the negative, b) whether it may be retained as a "pendent" claim. The following discussion will first address the Title VII viability and then the pendent jurisdiction theory.

Maintenance of the "blacklisting" claim under Title VII

There would appear to be two distinct theories which bode against the maintenance of this allegation under Title VII. The first is that assuming "blacklisting" could amount to a Title VII act of discrimination, it cannot be raised here because it was not included in the charge filed before the EEOC. The second is that the blacklisting averred herein is simply not a Title VII transgression.

A.

The defendant argues that this Court lacks subject matter over the "blacklisting" allegations because they were not included in the charge submitted to the EEOC. In developing this assertion the defendant points out that the EEOC investigation was restricted to the parties' actions up to and including the discharge, that body having never entertained any facts regarding post-discharge behavior by Mobil or Mr. Ferguson. This being the case, Mobil submits the attaching of such allegations to the Title VII action is impermissible.

The defendant's argument is well taken. It is clear that this Court can take cognizance of averments of discrimination which are "like or reasonably related to the allegations of the charge submitted to the EEOC and growing out of such allegations," Jenkins v. Blue Cross Mutual Hospital Ins., Inc., 522 F.2d 1235, 1241 (7th Cir. 1975) quoting Danner v. Phillips Petroleum Co., 447 F.2d 159, 162 (5th Cir. 1971); see Equal Employment Opportunity Commission v. National Cash Register Company, 405 F.Supp. 562, 566 (N.D.Ga.1975); Scott v. University of Delaware, 385 F.Supp. 937, 942 (D.Del.1974); cf. Equal Employment Opportunity Commission v. Bailey Co., Inc., 563 F.2d 439, 446 (6th Cir. 1977). However, the "blacklisting" claim at issue here cannot be so construed. This claim was never the subject of any discussion or investigation by the EEOC or the parties before it, demonstrating no notice thereof to the defendant and no reasonable relation to the charges investigated. The absence of such an opportunity to discuss such claims has been cited as the reason such claims cannot be addressed in judicial actions. Bailey, supra, 563 F.2d at 448.

The plaintiff nevertheless contends such behavior "reasonably grows out of the fact that he was a victim of disparate treatment by Mobil." This Court has determined, however, that such is not the case. The requisite nexus is not here. The other allegations of Mr. Ferguson's complaint focus solely on the employment relationship experienced by the parties and the averred misconduct which occurred therein, including the discharge. The "blacklisting" averment involves only that period after said employment when the employer/employee status, and its concomitant rights and duties, had expired and an entirely different legal context had arisen. Not only do the two periods involve distinct factual theatres, but also distinct legal obligations only the earlier of which was before the EEOC. Clearly the charges before the EEOC never gave Mobil any of the notice the Title VII scheme and due process mandates, see Bailey, supra, 563 F.2d at 450. The "blacklisting" claim consequently creates a "material difference" between the claim filed with the EEOC and the one at bar, see Danner, supra, 447 F.2d at 162; compare Scott, supra, 385 F.Supp. at...