Hall v. Equal Employment Opportunity Com'n

• Decision Date: 19 July 1978
• Docket Number: No. C-76-2090 RFP.,C-76-2090 RFP.
• Citation: 456 F. Supp. 695
• Parties: Joseph HALL et al., Plaintiffs, v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION et al., Defendants.
• Court: U.S. District Court — Northern District of California

456 F. Supp. 695

Joseph HALL et al., Plaintiffs, v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION et al., Defendants.

No. C-76-2090 RFP.

United States District Court, N. D. California.

July 19, 1978.

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Prudence Kay Poppink, Employment Law Center, San Francisco, Cal., for Joseph Hall et al.

S. Jennifer Johnson, Equal Employment Opportunity Commission, Washington, D. C., Gary Siniscalco, San Francisco Regional Office, Equal Employment Opportunity Commission, San Francisco, Cal., for defendant EEOC.

OPINION

PECKHAM, Chief Judge.

This case is a class action challenge to the accelerated procedures utilized by the Equal Employment Opportunity Commission (EEOC) for the processing of discrimination charges during the Transitional Quarter (TQ) project. During the duration of the TQ project, from August 16, 1976 to September 30, 1976, the Accelerated Procedures Memorandum of August 10, 1976 in effect modified the procedures of the EEOC's Compliance Manual with regard to the processing of charges filed before July 1, 1973. During the summer of 1976 before the TQ project, an EEOC inventory indicated a backlog of 17,690 charges filed with the EEOC before July 1, 1973, but still unresolved. The goal of the TQ project was to eliminate this backlog, and in fact more than 9,000 of these charges were closed by September 30, 1976.

The name plaintiffs in this action are seven individuals and one organization, the National Organization for Women. All seven individuals filed charges with the EEOC before July 1, 1973, and five of the seven received letters of determination from the EEOC between August 16 and September 30, 1976, indicating that there was not reasonable cause to believe they had been discriminated against and notifying them of their right to sue. A sixth individual, Ann O'Brian Petrel, received her "no cause" determination and right-to-sue letter on August 11, 1976, but alleges that her charge was also processed under the TQ project procedures. The seventh individual, Joseph Hall, had not received a letter of determination as of the filing of this suit. The name plaintiffs seek to represent a nationwide class of persons similarly situated.

The essence of the plaintiffs' claim is that in adopting the accelerated procedures utilized in the TQ project, the EEOC failed to adequately investigate plaintiffs' charges, and where applicable, failed to engage in a "bona fide" attempt to conciliate those charges, all in violation of the EEOC's duty under § 706(b) of Title VII, 42 U.S.C. § 2000e-5(b), and the regulations promulgated thereunder. More specifically, the plaintiffs allege several causes of action. First, they seek relief on an implied right of action under Title VII itself. Second, they maintain that the EEOC's actions constitute "agency action" which may be reviewed under the Administrative Procedure Act (APA), 5 U.S.C. § 551 et seq. Third, the plaintiffs claim that the EEOC's adoption of the Accelerated Procedures Memorandum amounted to "rule making" under the Administrative Procedure Act, 5 U.S.C. § 553, and violates the APA because the Memorandum was promulgated without notice, hearing, or opportunity for comment. Finally, they argue that the EEOC's actions deprived them of rights protected by the Fifth Amendment without due process of law. The plaintiffs seek both declaratory and injunctive relief, and request that the court order the EEOC to reopen and reconsider all determinations of charges filed before July 1, 1973, that were made during the TQ project and adequately investigate and attempt to conciliate them.

The EEOC has argued that this court does not have jurisdiction over the subject matter of this action. After careful consideration, however, it is our conclusion that jurisdiction over this action is proper under one or more of the following: 28 U.S.C. §§ 1331, 1337 and 1343(4). Similarly, we conclude that these plaintiffs clearly have standing to bring this action. The injury which the plaintiffs have allegedly suffered is not only that they have been discriminated against, but that they have been denied a proper investigation of their discrimination charge, making it, they say, very difficult to obtain a remedy for the discrimination against them. There is a clear nexus between this alleged injury and the challenged actions of the EEOC, and the relief requested would remedy the alleged injury. See Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976).

Nor do we think that the action should be dismissed under Fed.R.Civ.P. 19(b) for failure to join indispensable parties. The defendants have argued that the plaintiffs should join all of the employer respondents named in the charges filed with the EEOC because they have an interest in the possible reopening of charges against them that were previously closed. However, the EEOC's regulations, 29 C.F.R. § 1601.19b(b), allow the EEOC to reconsider determinations made on charges at any time on its own motion, without first notifying the respondent employer. This indicates that, although the respondents may have an interest in the outcome of this case, this interest is not one which would make their joinder especially desirable under Fed. R.Civ.P. 19(a), much less indispensable under Rule 19(b). Finally, because we decide herein that plaintiffs have not stated a cause of action, we do not reach defendants' contention that the federal official defendants are immune from suit in their individual capacities.

A. IMPLIED RIGHT OF ACTION UNDER TITLE VII

We now are in a position to discuss the specific causes of action alleged by the plaintiffs' complaint. The plaintiffs' first attempt to state a cause of action utilizes Title VII itself. They allege that the EEOC has failed in its legal duty under § 706(b) of Title VII to investigate all charges of discrimination brought before it and to attempt to conciliate all charges that appear to have some basis in fact. No section of Title VII specifically authorizes private actions against the EEOC to enforce any provisions of Title VII. The plaintiffs' argument, in essence, is that a right of action against the EEOC for charging parties should be implied under Title VII to provide a means of enforcing the statutory investigation and conciliation requirements.

The standards to be applied in determining whether to imply a cause of action under a federal statute which does not expressly provide for such a right of action have been recently set forth by the Supreme Court in Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2087, 45 L.Ed.2d 26, 36 (1975). Although the question specifically involved in Cort v. Ash was whether a criminal provision of the Federal Election Campaign Act implied a private remedy as well, the language used and the number and scope of the cases cited by the Court clearly indicate that it was designed as a general test of whether to imply a cause of action under a statute not otherwise providing for one. As set out by the Supreme Court, the relative factors to take into consideration are: (1) whether the plaintiff is one of the class for whose especial benefit the statute was enacted; (2) whether there is any indication of legislative intent, explicit or implicit, either to create such a remedy or deny one; (3) whether it is consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff; and (4) whether the cause of action is one traditionally relegated to state law, so that a cause of action based solely on federal law would be inappropriate.

Under this four part test, we conclude that no right of action under Title VII should be implied in this situation. Initially, it is clear that the first and last factors mentioned in Cort v. Ash, supra, would tend to support the creation of a right of action. The plaintiffs, as alleged discriminatees, can be assumed to be among the class of persons for whose benefit Title VII was enacted, and this is not an area traditionally relegated to state law. However, both the second and third factors in the test militate strongly against implying a cause of action here.

As part of the 1972 amendments to Title VII, Congress added § 706(f)(1), which allows charging parties to file their own lawsuit once 180 days have passed since the filing of their charge. The Supreme Court recently had occasion to construe this provision in Occidental Life Insurance Co. v. Equal Employment Opportunity Comm., 432 U.S. 355, 97 S.Ct. 2447, 53 L.Ed.2d 402 (1977), where it was held that § 706(f)(1) did not impose a 180-day time limitation upon the EEOC's power to file enforcement suits in federal court. In deciding this question, it was necessary for the Court to consider the intent of Congress in enacting § 706(f)(1), and in so doing the Court quoted extensively from the legislative history of the 1972 amendments. The Court's conclusion was that Congress clearly intended to preserve the aggrieved party's right to bring his own suit, no matter what action, inaction, or refusal to act occurs on the part of the EEOC. This conclusion is amply supported by the legislative history. For example, an analysis presented to the Senate with the Conference Committee Report states:

"The provisions . . . allow the person aggrieved to pursue his or her own remedy under this title in the courts where there is agency inaction, dalliance or dismissal of the charge, or unsatisfactory resolution." 118 Cong.Rec. 7168 (March 6, 1972); as quoted in Occidental Life Insurance Co. v. EEOC, 432 U.S. at 365, 97 S.Ct. at 2453, 53 L.Ed.2d at 411.

This remedy explicitly provided by Congress strongly implies that Congress did not intend that charging parties be able to force the EEOC, by means of suit or the threat thereof, to more fully or speedily investigate or attempt to conciliate their charge. Instead, a charging party dissatisfied with the EEOC may, under § 706(f)(1), circumvent the EEOC...