Foster v. Gueory, 79-2266

• Decision Date: 19 June 1981
• Docket Number: No. 79-2266,79-2266
• Citation: 655 F.2d 1319
• Parties: 26 Fair Empl.Prac.Cas. 7, 26 Empl. Prac. Dec. P 31,899, 211 U.S.App.D.C. 89 Joseph FOSTER, et al. v. Albert GUEORY, Ronald Dorsey, and Rudolph J. Thornton, Appellants, v. LOCAL 2311 of the UNITED BROTHERHOOD OF CARPENTERS and JOINERS of AMERICA, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1319

655 F.2d 1319

26 Fair Empl.Prac.Cas. 7, 26 Empl. Prac. Dec.

P 31,899,

211 U.S.App.D.C. 89

Joseph FOSTER, et al. v. Albert GUEORY, Ronald Dorsey, and Rudolph J. Thornton, Appellants, v. LOCAL 2311 of the UNITED BROTHERHOOD OF CARPENTERS and JOINERS of AMERICA, et al.

No. 79-2266.

United States Court of Appeals District of Columbia Circuit.

Argued Feb. 3, 1981.

Decided June 19, 1981.

Gerald B. Wetlaufer, Washington, D. C., with whom Donald T. Bucklin and Gilbert E. Hardy, Washington, D. C., were on the brief for appellants.

Joel A. Smith, Baltimore, Md., with whom Anthony Abato, Jr., Lutherville, Md., and Alan D. Eisenberg, Arlington, Va., were on the brief for appellee, Carpenters' District Council of Washington, D. C. and vicinity.

Ronald Rosenberg and Charles R. Both, Washington, D. C., were on the brief for appellee, Local 2311.

Mozart G. Ratner, Washington, D. C., entered an appearance for appellees, United Brotherhood of Carpenters, et al.

Gary L. Lieber and John A. McGuinn, Washington, D. C., entered appearances for appellee, Construction Contractors Council, etc.

Before JOHN W. PECK ^*, United States Senior Circuit Judge for the Sixth Circuit MacKINNON and WILKEY, Circuit Judges.

Opinion for the Court filed by Senior Circuit Judge JOHN W. PECK.

JOHN W. PECK, Senior Circuit Judge:

Appellants are three persons whose motion to intervene as plaintiffs in a pending employment discrimination suit was denied by the district court. The complaint that initiated the suit in which appellants now seek to intervene alleged racial discrimination by labor organizations and employers in matters relating to employment as pile drivers. The complained of discrimination was alleged to violate Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., and Section 1 of the Civil Rights Act of 1866, 42 U.S.C. § 1981. The plaintiffs who filed that complaint were four members of a defendant labor union. One of the plaintiffs had received a Notice of a Right to Sue from the Equal Employment Opportunity Commission (EEOC), pursuant to 42 U.S.C. § 2000e-5(f)(1) (Supp. V 1975).

The complaint recited that the action was brought on behalf of the plaintiffs and of all others similarly situated. The plaintiffs moved, pursuant to Fed.R.Civ.Pro. 23, to have the action certified as a class action on behalf of all black or other minority persons who have been or who may in the future be discriminated against on the basis of race or color with respect to employment as pile drivers. The district court denied class certification on the grounds that the plaintiffs had not shown that the class that they sought to represent was sufficiently numerous to justify certification or that declaratory and injunctive relief would not adequately provide most of the relief sought.

Appellants, none of whom were members of the defendant union, moved to intervene pursuant to Fed.R.Civ.Pro. 24. Appellants alleged that they had suffered the "same kinds of discrimination as the original plaintiffs," and that their experiences differed from the original plaintiffs only in that the plaintiffs were members of the defendant union while appellants had been unable to obtain union membership or apprenticeship training due to racial discrimination. Appellants' motion sought intervention of right under Fed.R.Civ.Pro. 24(a)(2), and in the alternative, permissive intervention under Fed.R.Civ.Pro. 24(b).

The district court denied the motion to intervene on the grounds that the appellants and the plaintiffs in the pending suit were not members of a class under Fed.R.Civ.Pro. 23, and that appellants had not exhausted their administrative remedies. On appeal, appellants argue that this is not a valid reason for denying their motion, that they met the criteria of Fed.R.Civ.Pro. 24(a)(2), and that the district court thus erred in not permitting intervention of right. Alternatively, appellants contend that the district court failed to consider appellants' motion for permissive intervention under Fed.R.Civ.Pro. 24(b) and that this was an abuse of discretion.

It is well settled, and appellants concede, that a party seeking relief under Title VII must file timely charges of employment discrimination with the EEOC before that party may seek judicial relief. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798, 93 S.Ct. 1817, 1822, 36 L.Ed.2d 668 (1973); Love v. Pullman Co., 404 U.S. 522, 523, 92 S.Ct. 616, 617, 30 L.Ed.2d 679 (1972); Evans v. Sheraton Park Hotel, 503 F.2d 177, 183 (D.C.Cir.1974). Appellants filed no charges of discrimination with EEOC, but contend that they may nonetheless intervene as plaintiffs because the Title VII prerequisite of filing charges with EEOC was met by one of the original plaintiffs.

Appellants rely on a line of cases which establish that each individual plaintiff in a Title VII class action suit need not individually file an EEOC complaint, but that it is sufficient if at least one member of the plaintiff class has met the filing prerequisite. E. g., Albemarle Paper Co. v. Moody, 422 U.S. 405, 414 n.8, 95 S.Ct. 2362, 2370 n.8, 45 L.Ed.2d 280 (1975); Romasanta v. United Airlines, Inc., 537 F.2d 915, 918 (7th Cir. 1976); Dodge v. Giant Food, Inc., 488 F.2d 1333 n.1 (D.C.Cir.1973); Macklin v. Spector Freight Systems, Inc., 478 F.2d 979, 985 n.11 (D.C.Cir.1973). The rationale of this line of cases was explained by Judge Griffin Bell:

It would be wasteful, if not vain, for numerous employees, all with the same grievance, to have to process many identical complaints with EEOC. If it is impossible to reach a settlement with one discriminatee, what reason would there be to assume that the next one would be successful. (Emphasis added.)

Oatis v. Crown Zellerbach Corp., 398 F.2d 496, 498 (5th Cir. 1968). In class actions this rationale is invariably applicable, for the very fact that the suit is a class action means that the plaintiffs' claims not only share common questions of law and fact, but those claims are such that representative plaintiffs will fairly and adequately protect the interests of all plaintiffs of the class. Fed.R.Civ.Pro. 23(a)(3) & (4).

The rationale of the above cases has been extended to situations where no class action had been certified, but where the court was nonetheless able to treat as a class a plaintiff who had satisfied the EEOC filing requirement and one or more plaintiffs who had not satisfied that requirement. ¹ For example, in Allen v. Amalgamated Transit Union Local 788, 554 F.2d 876 (8th Cir. 1977), fifteen plaintiffs joined in a Title VII suit alleging racial discrimination. No attempt was made to certify the suit as a class action, and only two of the plaintiffs had filed EEOC charges. The Eighth Circuit held that Title VII relief could not be denied to the thirteen plaintiffs who had not pursued administrative remedies. In reaching that result, the court noted that these plaintiffs had "alleged facts demonstrating they were similarly situated and had received the same discriminatory treatment" as had the two plaintiffs who had filed EEOC charges. Id. at 882. Under these circumstances, the court determined that, "it would be nonsensical to require each of the plaintiffs to individually file administrative charges with the EEOC," id. at 883, thus reaffirming Judge Bell's reasoning in Oatis.

In circumstances more similar to those of the present case, the Fifth Circuit in Wheeler v. American Home Products Corp., 563 F.2d 1233 (1977), permitted intervenors in a class action to maintain their Title VII claims after the class action status had been denied, even though the intervenors had not themselves pursued administrative remedies. The court determined that the intervenors and the original plaintiffs, who had filed EEOC charges, were "members of the same class." Id. at 1239. In reaching this result, the court stated that the reasoning of Oatis should apply, "wherever similarly situated persons intervene in an action and one or more of the original plaintiffs had satisfied the jurisdictional requisites." Id.

It thus appears that the critical factor in determining whether an individual Title VII plaintiff must file an EEOC charge, or whether he may escape this requirement by joining with another plaintiff who has filed such a charge, is the similarity of the two plaintiffs' complaints. Where the two claims are so similar that it can fairly be said that no conciliatory purpose would be served by filing separate EEOC charges, then it would be "wasteful, if not vain," 398 F.2d at 498, to require separate EEOC filings. However, where the two complaints differ to the extent that there is a real possibility that one of the claims might be administratively settled while the other can be resolved only by the courts, then the rationale of Oatis does not apply. In such a case each plaintiff should be required to separately file an EEOC charge in order to effectuate the purpose of Title VII's provisions for administrative relief.

In the present case, appellants have alleged that they and the original plaintiffs are victims of the same discriminatory practices. In their memorandum in support of their motion to intervene, the appellants asserted that their claims were "essentially identical" to those of the original plaintiffs, stating that their experience differed only in that the plaintiffs had been able to obtain membership in a defendant labor union prior to initiating this lawsuit, while none of the appellants had obtained membership until after they attempted to intervene. Consistent with the appellants' contention that their claims are nearly identical to plaintiffs', the original plaintiffs filed an amended complaint that incorporates the complaints of the appellants.

We conclude that the appellants have asserted claims of racial discrimination that are so similar to those asserted by the original plaintiffs that no purpose would be served by requiring appellants to...