Flowers v. LOCAL NO. 6, LABORERS INTERNAT'L U. OF NO. AMER.

• Decision Date: 12 August 1970
• Docket Number: No. 18060.,18060.
• Citation: 431 F.2d 205
• Parties: Leonidus FLOWERS, Individually and as a representative of a class, Plaintiff-Appellant, v. LOCAL NO. 6, LABORERS INTERNATIONAL UNION OF NORTH AMERICA (AFL-CIO), Chicago District Council Laborers International Union of North America (AFL-CIO), and Laborers International Union of North America (AFL-CIO), Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

431 F.2d 205 (1970)

Leonidus FLOWERS, Individually and as a representative of a class, Plaintiff-Appellant, v. LOCAL NO. 6, LABORERS INTERNATIONAL UNION OF NORTH AMERICA (AFL-CIO), Chicago District Council Laborers International Union of North America (AFL-CIO), and Laborers International Union of North America (AFL-CIO), Defendants-Appellees.

No. 18060.

United States Court of Appeals, Seventh Circuit.

August 12, 1970.

Joseph Minsky, Chicago, Ill., for plaintiff-appellant.

Philip B. Sklover, Stanley P. Hebert, Gen. Counsel, Russell Specter, Deputy Gen. Counsel, David R. Cashdan, Atty., Equal Employment Opportunity Commission, Washington, D. C., amicus curiae.

Lester Asher, Benjamin L. Jacobson, Marvin Gittler, Chicago, Ill., for defendants-appellees; Asher, Greenfield, Gubbins & Segall, Chicago, Ill., of counsel.

Before MAJOR, Senior Circuit Judge, KERNER, Circuit Judge; and ESCHBACH, District Judge.¹

ESCHBACH, District Judge.

The sole question raised by this appeal is whether the district court has jurisdiction under Section 706(e), Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(e), to entertain employment discrimination actions even though the Equal Employment Opportunity Commission (EEOC) has determined that no reasonable cause exists to believe the charge is true. The court below concluded that it did not have jurisdiction because a determination of no reasonable cause by the EEOC precluded it from seeking voluntary compliance.² For the reasons discussed below, we disagree and reverse.

Although there have been several decisions on this issue, only two opinions have given a comprehensive analysis. Fekete v. United States Steel Corp., 424 F.2d 331 (3d Cir. April 13, 1970); Grimm v. Westinghouse Elec. Corp., 300 F.Supp. 984 (N.D.Cal. 1969). Because we concur generally in the reasoning of Fekete and Grimm, it is unnecessary to here repeat their extensive analysis.

I. FACTS AND DECISION BELOW

On June 2, 1967, plaintiff-appellant Flowers filed a verified charge of discrimination against all defendant labor unions with the EEOC. On January 15, 1968, an investigator of the EEOC filed his final investigative report with the EEOC and recommended that the Commission find reasonable cause to believe that the unions discriminate in their referral of Negroes to construction jobs. However, the EEOC did not concur with the investigator and on January 17, 1969 entered its decision that "reasonable cause does not exist to believe the charge is true." On March 17, 1969, a copy of the Commission's decision was mailed to the plaintiff with a notice of his right to sue pursuant to Section 706(e) of Title VII, 42 U.S.C. § 2000e-5(e), within 30 days.

This suit was filed on April 15, 1969 within the statutory time period. Thereafter, defendants moved to dismiss the complaint on the ground that the Commission's determination of no reasonable cause precludes the plaintiff from seeking judicial relief under Title VII because the district court is without jurisdiction.

The court below was required to interpret the particular wording of Section 706, 42 U.S.C. § 2000e-5, which establishes the procedures to be followed in resolving charges of discrimination. The first step is the filing of a written charge with the EEOC. Next, "if the Commission shall determine after * * * investigation, that there is reasonable cause to believe that the charge is true, the Commission shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion." Id. § 2000e-5(a). Following this, "if * * * the Commission has been unable to obtain voluntary compliance with Title VII, the Commission shall so notify the person aggrieved and a civil action may, within thirty days thereafter, be brought against the respondent named in the charge * * * by the person claiming to be aggrieved, * * *" Id. § 2000e-5(e).

The district court reasoned that a notice from the EEOC to the complainant of its inability to obtain voluntary compliance was a jurisdictional prerequisite for the commencement of a Title VII action in federal court. The determination of no reasonable cause by the EEOC precluded it from seeking voluntary compliance. Thus, the court concluded that an adverse determination by the EEOC prevented the fulfillment of this jurisdictional requirement. We disagree.³

II. EEOC DETERMINATION OF NO REASONABLE CAUSE DOES NOT DEPRIVE DISTRICT COURT OF JURISDICTION

As has been well demonstrated, the question which is before this court is not answered by resort to the language of Title VII nor to the legislative history. E.g., Fekete v. United States Steel Corp., supra, 424 F.2d 331; Grimm v. Westinghouse Elec. Corp., supra, 300 F. Supp. at 988; McDonald v. Musicians, Local 10-208, 308 F.Supp. 664, 666-668 (N.D.Ill. 1970). See, e.g., Miller v. International Paper Co., supra, 22 L.Ed.2d 451 n. 2, 408 F.2d at 289-290; Johnson v. Seaboard Air Line R. R., 405 F.2d 645, 649-653 (4th Cir. 1968), cert. denied, Pilot Freight Carriers Inc. v. Walker, 394 U.S. 918, 89 S.Ct. 1189, (1969). As discussed elsewhere,⁴ Title VII was not enacted as originally proposed and debated but was quilted with amendments. Not surprisingly, therefore, Title VII contains gaps, and the question which is now before this court did not occur to Congress. Fekete v. United States Steel Co., supra. Grimm v. Westinghouse Elec. Corp., supra. See Miller v. International Paper Co., supra. There is no provision in Title VII which either describes the effect of a finding of no reasonable cause by the EEOC or, in those circumstances, defines the rights, if any, of a "person claiming to be aggrieved." In this situation, the court must look to the purposes of the legislation and other sources of statutory interpretation.

As noted above, this court generally concurs in the analysis of the Fekete and Grimm decisions. Briefly, those decisions reasoned that nonreviewability of administrative determinations is the exception to the general rule of judicial review and that the prior precedents supported jurisdiction even though the EEOC had found no reasonable cause. It has already been decided, for example, that an actual finding by the EEOC of reasonable cause is not a jurisdictional prerequisite,⁵ that actual conciliation and efforts toward voluntary conciliation by EEOC are not required prior to initiation of the court action⁶ and that the complainant may reject a final conciliation agreement between the EEOC and a defendant and prosecute a judicial action.⁷

As this circuit recognized in Cox v. United States Gypsum Co., supra n. 6, "after the expiration of sixty days from the filing of the charge * * *, the charging party may demand and obtain issuance of the suit notice, whether or not the commission has made any efforts at conciliation." Id. at 291 n.4 (emphasis added). Thus, conciliation efforts by the EEOC are not jurisdictional prerequisites to a judicial action. We agree with Grimm's analysis of the import of our holding in Cox that the complainant may initiate suit even though he rejected the EEOC's conciliation agreement. The EEOC's determination of what does or would constitute compliance with Title VII is not conclusive or binding upon the complainant and does not bar the complainant from initiating judicial action if he disagrees with the Commission's determination of what does or would constitute compliance. Grimm v. Westinghouse Elec. Corp., supra 300 F.Supp. at 990. We are reinforced in our conclusion that Fekete and Grimm are correct decisions by the EEOC's own regulation, 29 C.F. R. § 1601.25a(b), which permits a complainant to obtain the required notice to file suit even if the Commission has determined no reasonable cause exists.⁸ As the Court of Appeals for the Fifth Circuit recently observed:

"Normally, a suit letter will not issue until after the Commission has rendered a finding of probable cause and has failed at conciliation efforts. However, as recognized * * * in Miller v. International Paper Co. supra * * *, a charging party may request under Commission regulation 29 C.F.R. § 1601.25(a) sic a notice of the right to sue at any time after 60 days has elapsed from filing of a charge with the Commission. Thus, a charging party may obtain a notice letter prior to the issuance of a Commission determination of probable cause. Moreover, the Commission\'s Regulations allow for the issuance of notice letters in cases where a finding of no probable cause is rendered. This flows from the fact that Commission conciliation efforts are not jurisdictional prerequisites to the institution of civil actions under Title VII. Miller v. International Paper Co., supra; citations omitted." Culpepper v. Reynolds Metals Co., 421 F.2d 888, 890 n. 2 (5th Cir. 1970) (dicta).

Notwithstanding the Fekete and Grimm decisions, defendants suggest that we should look to the National Labor Relations Act (NLRA) for guidance in answering the question before us. Just as there is no judicial review of the General Counsel's refusal to issue a complaint under the NLRA,⁹ so also, defendants contend, there is no "judicial review" of the EEOC's determination of no reasonable cause. Defendants' position has two fatal defects: First, Title VII as enacted is not significantly patterned after the NLRA and the EEOC in important ways does not resemble the NLRB¹⁰ and, second, judicial proceedings under Title VII do not "review" the determinations of the EEOC but are de novo proceedings.¹¹

We concur in the conclusions of the Court of Appeals for the Third Circuit:

"We cannot accept the hypothesis that Congress intended to entrust the key to judicial relief with an agency given no power to direct the processing of the civil action in court.

"Unquestionably, the Commission\'s role is an important one, designed to encourage and to effect voluntary compliance with the provisions of the Act. But in this role of investigator and conciliator,

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