Grimes v. Pitney Bowes, Inc.

• Decision Date: 19 December 1979
• Docket Number: Civ. A. No. C79-779A.
• Citation: 480 F. Supp. 1381
• Parties: Will GRIMES, Billy Carl Thurman, Ella Vickery Davis, Harolyn Nelson, Patricia Chappell, Linda Bethea, Raymond A. Mingo, Franklin Stone, Jackqueline A. Moore, Faterrell Showers, and Beverly Minter v. PITNEY BOWES, INCORPORATED.
• Court: U.S. District Court — Northern District of Georgia

480 F. Supp. 1381

Will GRIMES, Billy Carl Thurman, Ella Vickery Davis, Harolyn Nelson, Patricia Chappell, Linda Bethea, Raymond A. Mingo, Franklin Stone, Jackqueline A. Moore, Faterrell Showers, and Beverly Minter v. PITNEY BOWES, INCORPORATED.

Civ. A. No. C79-779A.

United States District Court, N. D. Georgia, Atlanta Division.

December 19, 1979.

Mary Welcome, of Garland, Nuckolls, Kadish & Cook, S. Ralph Martin, Jr., Atlanta, Ga., for plaintiffs.

Ronald M. Green, New York City, Richard G. Vernon, of Epstein, Becker, Borsody & Green, Washington, D. C., for defendant.

ORDER

NEWELL EDENFIELD, District Judge.

This employment discrimination case is currently before the court on defendant's motion to dismiss, or, alternatively, for summary judgment. It has been brought as a class action by the named plaintiffs on behalf of themselves and "all others similarly situated," alleging violation of 42 U.S.C. §§ 1981, 1985 and 2000e, et seq. The complaint does not further describe or identify the proposed class. No class has yet been certified.

Plaintiff Will Grimes is the sole named plaintiff who has allegedly filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC). He filed his charge with that agency on January 18, 1979. On January 30, 1979, his attorney in a letter to the EEOC requested a Notice of Right to Sue, asserting that "a delay in the filing of this action for the purpose of conciliation would be fruitless at this time and therefore, we respectfully request the right to sue so that a judicial consideration of our cause might commence."¹ On February 6, 1979, the EEOC issued the Notice of Right to Sue pursuant to 29 CFR § 1601.28(a)(2). It was signed by T. McPherson, Jr., Acting District Director, and stated that the commission would be unable to complete its administrative process within 180 days from the filing of the charge and that the commission was terminating any further processing of the charge. This lawsuit followed on May 7, 1979.

I. ADMINISTRATIVE EXHAUSTION

Defendant first moves to dismiss plaintiffs' Title VII claims on the ground that plaintiff Grimes—the only plaintiff who filed a charge with the EEOC—failed to wait 180 days after that filing before bringing this action.²

The EEOC's jurisdiction over charges and the private right of action under Title VII are governed by section 706(f)(1) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(f)(1), which provides in relevant part:

If within one hundred eighty days from the filing of such charge . . . the Commission has not filed a civil action under this section or . . . entered into a conciliation agreement to which the person aggrieved is a party, the Commission . . . shall notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought against respondent . ..

Defendant contends that the expiration of at least 180 days before issuance of a right-to-sue notice by the commission is a statutory prerequisite to a private action, and moves the court to dismiss the complaint for lack of jurisdiction over the subject matter, Rule 12(b), Fed.R.Civ.P.

The question that is presented by this motion has been addressed by a number of courts with a resulting division of authority. Some courts have held that the 180-day period in section 706(f)(1) merely permits the EEOC to retain jurisdiction over a charge for that time. Contrary to this, other courts have viewed it as requiring a 180-day period of exclusive jurisdiction in the commission for the purpose of investigation and conciliation prior to an individual turning to the courts.

The legislative history of the original statute as well as the 1972 amendments reflects Congress' belief that the commission can effect a resolution superior to that of private litigation in most cases. See, e. g., H.R.Rep. No. 238, 92d Cong. (1971), reprinted in 1972 U.S.Code Cong. & Admin. News, pp. 2137, 2146-48; S.Rep. No. 415, 92d Cong. (1971); McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Congress set forth this view favoring administrative action over litigation while at the same time expressly recognizing the mounting caseload and delay within the administrative agencies. 1972 U.S.Code Cong. & Admin.News, supra, at 2147. Indeed, the 1972 amendments to Title VII extended the "period of Commission action" from a maximum of 60 days to 180 days, presumably in light of that increased caseload and with the aim of allowing the commission more time to carry out its mandate of investigation and conciliation. In the legislative history, Congress noted:

Administrative tribunals are better equipped to handle the complicated issues involved in employment discrimination cases than the District Courts. . . . The sorting out of the complexities surrounding employment discrimination can give rise to enormous expenditures of judicial resources in already heavily overburdened Federal district courts. . . Administrative tribunals are better suited to rapid resolution of such complex issues than are Courts. Efficiency and predictability will be enhanced if the necessarily detailed case by case findings of fact and fashioning of remedy is performed by experts in the subject matter. Moreover, administrative tribunals are less subject to technical rules governing such matters as pleading and motion practice — which afford opportunities for dilatory tactics — and are less constrained by formal rules of evidence — which give rise to a lengthier (and more costly) process of proof. . . . Further, congested court calendars necessitate inordinate delays in bringing cases to trial. . . .

1972 U.S.Code Cong. & Admin.News, at 2146. This congressional view was set forth in justification of the 1972 addition to Title VII of cease-and-desist order power in the EEOC. That very strengthening of administrative agency power is persuasive that Congress intended the commission to be the primary and preferred forum for resolution of employment discrimination claims.

As the Supreme Court explained in Alexander v. Gardner-Denver Co., 415 U.S. 36, 44, 94 S.Ct. 1011, 1017, 39 L.Ed.2d 147:

Congress enacted Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., to assure equality of employment opportunities by eliminating those practices and devices that discriminate on the basis of race, color, religion, sex or national origin. . . . Cooperation and voluntary compliance were selected as the preferred means for achieving this goal. To this end Congress created the Equal Employment Opportunity Commission and established a procedure whereby existing state and local employment opportunity agencies, as well as the Commission, would have an opportunity to settle disputes through conference, conciliation and persuasion before the aggrieved party was permitted to file a lawsuit.

Citations omitted. The Court, albeit in dicta, has at least twice described the Title VII action as arising only after the 180-day period. Johnson v. Railway Express Agency, 421 U.S. 454, 458, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975); Gladstone v. Village of Bellwood, 441 U.S. 91, at 104, n. 12, 99 S.Ct. 1601, 60 L.Ed.2d 66 (1979). In Occidental Life Insurance Co. v. EEOC, 432 U.S. 355, 97 S.Ct. 2447 (1977), the Court construed the 180-day provision as a limitation only upon the private Title VII action and characterized the period as mandatory in that respect: "The 180-day limitation provides only that this private right of action does not arise until 180 days after a charge has been filed." 432 U.S. at 361, 97 S.Ct. at 2452.

Lower courts have been divided over whether the 180-day period is a mandatory or discretionary period of exclusive EEOC jurisdiction. Some have held it to be strictly mandatory, regardless of agency efforts at conciliation during the period. E. g., Troy v. Shell Oil Co., 378 F.Supp. 1042 (E.D.Mich.1974), appeal dismissed, 519 F.2d 403 (6th Cir. 1975); Hiduchenko v. Minneapolis Medical Center, 467 F.Supp. 103 (D.Minn.1979); Budreck v. Crocker National Bank, 407 F.Supp. 635 (N.D.Cal.1976); Scott v. Board of Education, 18 FEP Cas. 1230 (D.Md.1977); Jones v. Pacific Intermountain Express, 10 FEP Cas. 914 (N.D. Cal.1975).

In Loney v. Carr-Lowrey Glass Co., 458 F.Supp. 1080 (D.Md.1978), the court expressly struck down the commission's regulation authorizing private suit within the 180-day waiting period, 29 CFR § 1601.28(a)(2). See also McGee v. Purolator Courier Corp., 430 F.Supp. 1285 (N.D.Ala.1977).

Other cases, however, approve the commission's practice on the theory that the waiting period becomes futile after termination of agency efforts. See B. Schlei & P. Grossman, Employment Discrimination Law, at 916 (BNA 1976), and authorities cited therein. Still other cases have recognized the 180-day period as theoretically binding but have denied motions to dismiss as moot where the period has expired by the date of the court's hearing or ruling. E. g., Featherstone v. Liberty Cash Grocers, 82 F.R.D. 484 (W.D.Tenn.1979); Eldredge v. Carpenters 46, 440 F.Supp. 506 (N.D.Cal. 1977). This approach assumes that if the premature suit were dismissed, the commission could immediately issue a second right-to-sue based upon the same charge. The validity of such a procedure does not appear to have been decisively litigated. In addition, in Weise v. Syracuse University, 522 F.2d 397 (2d Cir. 1975), the Second Circuit approved a premature civil action on the ground that 180 days had elapsed from the filing of a prior charge against the defendant employer. Two of the principal texts on Title VII are also divided on the effect of the § 706(f)(1) waiting period. Compare B. Schlei & P. Grossman, supra, with Player, Federal Law of Employment Discrimination § 5-8.01, at 212-13 (West 1976).

The Sixth Circuit has twice affirmed dismissal of a private Title VII action based upon premature agency letters, but has also recognized the commission's...