Gibson v. Kroger Co., 372-A

Citation506 F.2d 647
Decision Date14 April 1975
Docket NumberAFL-CI,No. 372-A,No. 73-2132,D,372-A,73-2132
Parties8 Fair Empl.Prac.Cas. 1286, 8 Empl. Prac. Dec. P 9803 Edward GIBSON, Plaintiff-Appellant, v. The KROGER COMPANY and Bakery Workers Localof Indianapolis, affiliated with the Bakery and Confectionary Workers International Union of America,efendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

Theodore D. Wilson, Robert A. Zaban, Indianapolis, Ind., for plaintiff-appellant.

Charles L. Whistler, Michael R. Maine, Dennis E. Zahn, Indianapolis, Ind., for defendants-appellees.

Before SPRECHER and TONE, Circuit Judges, and PERRY, Senior District Judge. 1

PERRY, Senior District Judge.

This is an appeal from a judgment of the District Court in favor of the defendants, The Kroger Company ('company') and Bakery Workers Local No. 372-A of Indianapolis, affiliated with the Bakery and Confectionary Workers International Union of America, AFLCIO ('union'), in a civil rights action brought by the plaintiff, Edward Gibson, for damages resulting from the company's denial of Gibson's application for the position of forklift operator in the Stock and Receiving Department of the company's Indianapolis bakery subsequent to the loss of his position of helper in said department due to production cutbacks.

Gibson is a member of the Negro race. He was hired by the company in November, 1956, and was assigned to the Cleaning and Pan Cleaning Department where he worked until August, 1969, when he was advanced to the position of Helper in the Stock and Receiving Department ('stockroom').

In April, 1972, there were five employees, including Gibson, in the stockroom. Of the five employees, Gibson had the least priority in the department, i.e., he had the least time in the department itself; however, he had greater plant-wide seniority than two of the five. When,-- as a result of production cutbacks,-- the number of employees required to operate the stockroom was reduced from five to four, Gibson, being lowest in departmental seniority, was transferred out of the department and was given the opportunity to select, in any other department of the plant, any position held by an employee having less plant-wide seniority than Gibson had. Immediately thereafter, on or about April 17, 1972, Gibson asked to be transferred back into the stockroom and to displace ('bump') the employee who was the forklift ('bug') operator in that department. Gibson's request was denied on the grounds that (1) the company's agreement with the union ('labor agreement') did not permit an employee to 'bump', within hiw own department, another employee with greater departmental seniority; and (2) Gibson's contractual prerogative to 'bump' other employees with less plant-wide seniority applied only to departments other than the department from which Gibson had been displaced (by virtue of his junior departmental seniority).

On April 28, 1972, pursuant to the procedure prescribed in the labor agreement for resolution of disputes over the proper interpretation of the labor agreement, Gibson filed a written grievance in which he claimed that he had a contractual right, under the collective bargaining agreement, to 'bump' the stockroon 'bug' operator who had less plant-wide seniority than Gibson, irrespective of their relative departmental seniority.

On June 22, 1972, Gibson filed a complaint with the Indiana Civil Rights Commission, and on August 15, 1972, he filed a complaint with the Equal Employment Opportunity Commission ('EEOC' or 'Commission'). Meanwhile, pursuant to the labor agreement between the company and the union, Gibson's grievance was not resolved through the three-step contractual grievance procedure and, in accordance with the labor agreement, an impartial arbitrator was selected to hear the case and render a decision.

On October 30, 1972, the grievance,-- together with a related group grievance of some other employees who had been transferred in consequence of the reduction in force,-- was arbitrated before Mr. David Dolnick, an eminent labor arbitrator. Gibson was represented at the hearing both by an attorney for the union and by his own personal counsel, who was given an opportunity to participate in the hearing and in the presentation of evidence on Gibson's behalf.

On December 8, 1972, Arbitrator Dolnick issued a detailed opinion denying Gibson's grievance and the aforesaid group grievance. He ruled that under the terms of the labor agreement Gibson was not entitled to the job of 'bug' operator because, notwithstanding the fact that Gibson had more plant-wide seniority than the white employee holding the position, departmental seniority was, under the terms of the agreement, the controlling factor in determining entitlement to the 'bug' operator job. The arbitrator thus sustained the company's interpretation that the labor agreement required the company to permit the 'bug' operator to retain his position, and did not allow the company to displace him with Gibson.

Arbitrator Dolnick went on to decide the grievances of some 17 other white and black employees on the same principle: all employees-- black or white, male or female-- whose jobs were affected by the temporary reduction in force could exercise plant-wide seniority only to replace a less senior full-time employee in another department.

On March 9, 1973, three months after the arbitrator's decision was rendered, Gibson brought this action, alleging that the company and the union had engaged in unfair employment practices as to him, in violation of Title VII of the Civil Rights Act of 1964, as amended ('Act') (42 U.S.C. 2000e et seq.).

In his complaint Gibson alleged that he had been discriminated against in that he had not been permitted to displace a white employee whose job assignment Gibson desired. The complaint did not, however, allege that Gibson had either pursued or exhausted the administrative remedies prescribed by the Act through the EEOC. Nor did the complaint allege that Gibson had received any notice of right to sue from the EEOC.

On April 30, 1973, the union filed a motion to dismiss, in which several defects in Gibson's complaint were alleged. One such alleged defect was Gibson's failure to allege and to attach, as an exhibit, a letter from the EEOC giving notice of right to sue ('right-to-sue notice').

On May 2, 1973, the company filed a consolidated motion seeking dismissal of Gibson's action, or a summary judgment for the company. One alleged basis for the company's motion to dismiss was that Gibson had failed to satisfy the jurisdictional requirements for the commencement of a civil action under Title VII of the Act because of his failure to allege receipt of, or to file a copy of, any right-to-sue notice from the EEOC.

On August 22, 1973, Gibson filed a memorandum of law in opposition to the aforesaid motions of the defendants. The memorandum was denominated 'Answer to Defendants' Motion To Dismiss'. Attached thereto was a right-to-sue notice to Gibson from the EEOC dated August 20, 1973.

On October 15, 1973, the District Court granted defendants' motion to dismiss for lack of jurisdiction on the ground that the right-to-sue notice was a jurisdictional requirement.

Gibson contends that the District Court erred in concluding that it lacked jurisdiction to hear and determine Gibson's action. Gibson argues that although his complaint lacked any allegation that Gibson had pursued or exhausted the administrative remedies prescribed by Title VII of the Act and any allegation that Gibson had received a right-to-sue notice from the EEOC, nevertheless at the time of dismissal the District Court had the requisite jurisdictional facts before it in the form of Gibson's Answer to Defendants' Motion to Dismiss, wherein Gibson stated that he had filed a complaint with the Indiana Civil Rights Commission on June 22, 1972 and with the EEOC on August 15, 1972, and that he had received his right-to-sue notice from the EEOC on August 20, 1973. Gibson further argues that the right-to-sue notice was attached to the aforesaid Answer, and that the District Court acknowledged in its opinion that Gibson received his right-to-sue notice on August 29, 1973.

Gibson summarizes his argument in these words:

Although the Complaint may have had some gaps with respect to Title VII matters, the bureaucratic procedures which the trial court considered critical with respect to its jurisdiction were complied with at the time that the Court said that it had no jurisdiction . . .

The company contends that Gibson ignored a basic jurisdictional prerequisite to a Title VII civil action by commencing his action prior to the issuance of a right-to-sue notice from the EEOC. The company asserts that the basic jurisdictional prerequisite which Gibson ignored is contained in the following language of 42 U.S.C. 2000e-5(f)(1):

. . . If a charge filed with the Commission pursuant to subsection (b) of this section is dismissed by the Commission, or if within one hundred and eighty days from the filing of such charge or the expiration of any period of reference under subsection (c) or (d) of this section, whichever is later, the Commission has not filed a civil action under this section . . . the Commission, . . . shall so notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge . . .

We agree with the company.

Although Title VII of the Act provides each complainant with an absolute right to bring a civil action in federal court, it is well settled that the administrative remedies available from the EEOC must be 'exhausted,' in the traditional sense of the term, as a prerequisite to the commencement of such action. Beverly v. Lone Star Lead Const. Corp., 437 F.2d 1136, 1139 (5th Cir. 1971), and cases cited...

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