Held v. Missouri Pacific Railroad Company, Civ. A. No. 73-H-1053.

• Citation: 373 F. Supp. 996
• Decision Date: 03 April 1974
• Docket Number: Civ. A. No. 73-H-1053.
• Parties: Doris June HELD, Individually and on behalf of all others similarly situated, Plaintiff, v. MISSOURI PACIFIC RAILROAD COMPANY et al., Defendants.
• Court: U.S. District Court — Southern District of Texas

373 F. Supp. 996

Doris June HELD, Individually and on behalf of all others similarly situated, Plaintiff, v. MISSOURI PACIFIC RAILROAD COMPANY et al., Defendants.

Civ. A. No. 73-H-1053.

United States District Court, S. D. Texas, Houston Division.

April 3, 1974.

Henry M. Rosenblum, Rosenthal & Rosenblum, Houston, Tex., for plaintiff.

Gordon A. Holloway, Sewell, Junell & Riggs, John B. Murphrey, Kronzer, Abraham & Watkins, Houston, Tex., for defendants.

MEMORANDUM AND OPINION

CARL O. BUE, Jr., District Judge.

Introduction

This cause of action was initiated by the plaintiff, a female, against her employer the Missouri Pacific Railroad Company (MoPac) for alleged sex discrimination in employment practices which are claimed to violate Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, and the Civil Rights Act of 1866, 42 U.S.C. § 1981. In particular, the plaintiff alleges that she was not promoted in 1969 by reason of her sex and that she was subsequently discharged in 1973 in retaliation for having filed charges with the Equal Employment Opportunity Commission (EEOC). Also named as defendants are the International Union Brotherhood of Railway, Airline and Steamship Clerks (BRAC), and its local affiliate (Local 84) which allegedly have acquiesced in MoPac's discriminatory practices. The EEOC has issued findings which conclude that there is reasonable cause to believe plaintiff's allegations with respect to MoPac are valid.

Before this Court are various motions of the defendants to dismiss for lack of jurisdiction and the plaintiff's application for a preliminary injunction ordering her immediate reinstatement by MoPac. Counsel have submitted to the Court the full file before the EEOC as well as a transcript (hereinafter cited as Tr.) of a pre-discharge investigation conducted by MoPac regarding certain charges leveled against the plaintiff. The parties have agreed that the documentary evidence submitted to the Court is sufficient for ruling upon the foregoing motions and that no hearing is required at this time.

Jurisdiction Under § 1981

The plaintiff brings this action on behalf of herself and a described class alleging employment discrimination based upon sex by defendant MoPac. Jurisdiction is grounded in part upon the Civil Rights Act of 1866, 42 U.S.C. § 1981, which provides:

All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.

Classifications based upon sex, like those based upon race, alienage and national origin, are inherently suspect and must be subjected to close judicial scrutiny. Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583, 589 (1973); Reed v. Reed, 404 U.S. 71, 75, 92 S.Ct. 251, 30 L.Ed.2d 225, 229 (1971). See also Annot., 27 L.Ed.2d 935 (1971); Annot., 12 A.L.R.Fed. 15 (1972). The Civil Rights Statutes generally have been accorded a sweep as broad as their language. Griffin v. Breckenridge, 403 U.S. 88, 97, 91 S.Ct. 1790, 29 L.Ed.2d 338, 345 (1971). Section 1981 has been cited as a basis in some sex discrimination cases without question. See, e. g., Johnson v. City of Cincinnati, 450 F.2d 796 (6th Cir. 1971); Parmer v. National Cash Register Co., 346 F.Supp. 1043, 1047 (S.D. Ohio 1972). Nevertheless, it has been held or noted that § 1981 is limited solely to jurisdiction based upon allegations of racial discrimination and not to claims of religious, national origin or sex discrimination. Willingham v. Macon Telegraph Publishing Co., 482 F.2d 535, 537 n.1 (5th Cir. 1973); Abshire v. Chicago & Eastern Illinois R. R. Co., 352 F.Supp. 601, 605 (N.D.Ill.1972). Section 1981, like § 1982, is derived from the Civil Rights Act of 1866. Sanders v. Dobbs Houses, Inc., 431 F.2d 1097, 1098-1099 (5th Cir. 1970). The United States Supreme Court has pointed out that the Civil Rights Act of 1866 applies only to racial discrimination. Jones v. Mayer Co., 392 U.S. 409, 413, 88 S.Ct. 2186, 20 L.Ed.2d 1189, 1193 (1968).

The Court is well aware that § 1981, on its face, would appear to provide a jurisdictional basis for claims based upon sex discrimination. The Court is also aware that the Supreme Court on occasion has ignored apparent Congressional intent by construing civil rights legislation so as to provide the general protection afforded on its face. See United States v. Mosley, 238 U.S. 383, 388, 35 S.Ct. 904, 59 L.Ed. 1355, 1357 (1915). Nevertheless, in light of the recent pronouncements in Willingham and Jones v. Mayer, the Court feels constrained to conclude that this Court has no jurisdiction over the matters alleged herein under § 1981 and that jurisdiction lies solely within the provisions of Title VII.

Failure to Charge Union Before EEOC

The plaintiff alleges that the union defendants, BRAC and Local 84, have violated their Duty of Fair Representation under the Railway Labor Act, 45 U.S.C. § 151 et seq., in that they have acquiesced and joined, or conspired, in the unlawful and discriminatory practices and policies complained of by the plaintiff. The union defendants challenge jurisdiction on the ground that they were not named in the plaintiff's EEOC complaint as required by § 706 of the Act, 42 U.S.C. § 2000e-5. As a general rule, this is a jurisdictional prerequisite. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668, 675-676 (1973); Local 179, United Textile Workers v. Federal Paper Stock Co., 461 F.2d 849, 851 (8th Cir. 1972); Beverly v. Lone Star Construction Corp., 437 F.2d 1136, 1139-1140 (5th Cir. 1971). It has been held that the "right to file suit against the union" does not ripen until it is charged before the EEOC, notwithstanding the fact that an employer is charged. Miller v. International Paper Co., 408 F.2d 283, 291 (5th Cir. 1969). See also Le Beau v. Libbey-Owens-Ford Co., 484 F.2d 798 (7th Cir. 1973) (international union not named, whereas employer and local union were named).

The rule is not without exception, however. For example, a union body possibly may be sued when it stands in an agency relationship to a party properly charged before the EEOC with respect to the alleged acts of discrimination. See Sokolowski v. Swift & Co., 286 F.Supp. 775, 782 (D.Minn.1968). Contra, Jamison v. Olga Coal Co., 335 F.Supp. 454, 461 (S.D.W.Va.1971). Joinder of a "desirable" union body by a defendant, as contrasted with joinder by a plaintiff, has been allowed under Fed. R.Civ.P. 19 where deemed necessary to effectuate full justice under the facts. Torockio v. Chamberlain Manufacturing Co., 51 F.R.D. 517 (W.D.Pa.1970). Joinder of a union has been allowed where the interpretation of a collective bargaining agreement would be necessary. Kinnunen v. American Motors Corp., 56 F.R.D. 102 (E.D.Wis.1972); Reyes v. Missouri-Kansas-Texas R.R. Co., 53 F.R.D. 293, 297 (D.Kan.1971). Joinder of a union has been allowed in order to ensure that the rights of a discharged plaintiff's replacement were adequately represented. Kinnunen, supra; Bremer v. St. Louis Southwestern R.R. Co., 310 F.Supp. 1333, 1339-1340 (E.D.Mo.1969). When an uncharged union may generally be regarded as "indispensable" to a thorough and adequate implementation of relief compelled by the evidence, that party may be joined, even though the technical requirements of the Act may not have been fully met. See Macklin v. Spector Freight Systems, Inc., 156 U.S. App.D.C. 69, 478 F.2d 979, 993 n. 25 (1973); United States v. Chesapeake & Ohio Ry. Co., 471 F.2d 582, 592-593 (4th Cir. 1972), cert. denied, United States v. Locals 268 etc., 411 U.S. 939, 93 S.Ct. 1893, 36 L.Ed.2d 401 (1973); Butler v. Local No. 4, 308 F.Supp. 528, 531 (N.D.Ill.1969); 3A J. Moore's Federal Practice ¶ 19.13 (2d ed., 1948, recompiled 1967).

In this case the Court has considered several factors with respect to the issue of joinder. Of particular concern to this issue is the plaintiff's challenge to Rule 7 of the collective bargaining agreement between defendants MoPac and BRAC. Rule 7(a) reads:

Employes (sic) covered by these rules shall be in line for promotion. Promotions, assignments and displacements under these rules shall be based on seniority, fitness and ability; fitness and ability being sufficient seniority shall prevail, except, however, that seniority shall not apply in filling positions named in paragraph (c) of this rule. (In filling positions listed in paragraph (c) of this rule, preference shall be given to employees coming under the provisions of this agreement.)

Rule 7(c) lists the jobs excepted from the seniority provision and includes the position of "Secretary to the Traffic Manager" to which the plaintiff was not promoted on or about October 27, 1969, allegedly for discriminatory reasons based upon sex. (In a footnote, defendants BRAC and Local 84 note that effective March 1, 1973, the collective bargaining agreement was revised with Rules 7(a) and 7(c) not appearing in the new agreement. It is noted, however, that the revisions still except some jobs from the requirement of seniority.) The plaintiff's complaint also alleges discrimination against members of her class with regard to matters of compensation, hiring, promotions, transfers and seniority. This allegedly is done under and pursuant to the terms of collective bargaining agreements entered into by defendants MoPac and BRAC.

In light of the critical involvement of the collective bargaining agreement and its interpretation and application to plaintiff's allegations, this Court concludes that the defendants BRAC and Local 84 should be joined under Rule 20(a), Federal Rules of Civil Procedure. Not only may they aid in the interpretation...