Hicks v. ABT Associates, Inc., 75-1425

• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
• Writing for the Court: Before SEITZ, Chief Judge, and BIGGS and HUNTER; HUNTER; SEITZ
• Citation: 572 F.2d 960
• Parties: 16 Fair Empl.Prac.Cas. 802, 15 Empl. Prac. Dec. P 8061 Harry Daniel HICKS, Appellant, v. ABT ASSOCIATES, INC., Appellee.
• Docket Number: No. 75-1425,75-1425
• Decision Date: 19 January 1978

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572 F.2d 960 16 Fair Empl.Prac.Cas. 802, 15 Empl. Prac.
Dec. P 8061 Harry Daniel HICKS, Appellant,
v.
ABT ASSOCIATES, INC., Appellee. No. 75-1425. United States Court of Appeals,
Third Circuit. Argued Oct. 3, 1977.
Decided Jan. 19, 1978.

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Martha Hartle Munsch, Pittsburgh, Pa., for appellant.

Michael H. Miller, George Michaels, P. C., Fred B. Wilcon, Michaels, Adler & Wilcon, Boston, Mass., for appellee.

Before SEITZ, Chief Judge, and BIGGS and HUNTER, Circuit Judges.

HUNTER, Circuit Judge:

This appeal is from an order of the district court granting summary judgment to defendant in an action brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq. The complaint alleges that defendant discriminated against plaintiff on the basis of race and sex, and retaliated against him for seeking administrative remedies for discrimination. The district judge ruled that the claim for sex discrimination was barred since no charge of sex discrimination had been filed with the Equal Employment Opportunity Commission (EEOC). He also concluded that there were no genuine issues of material fact supporting liability for either sort of discrimination or for retaliation. Since we find genuine issues of material fact in the record both on liability and on whether the district court should hear the claim based on sex discrimination, we vacate the summary judgment and remand.

I

Plaintiff Harry D. Hicks, a white male, was employed by defendant, Abt Associates, Inc., as a supervisor of housing evaluation operations from sometime late in 1972 until his termination on July 27, 1973.

On August 16, 1973, Hicks filed a "Charge of Discrimination" form with the EEOC. There are two places on the form where the nature of the discrimination being claimed is to be indicated. At the top of the form are several boxes, each labeled with a type of discrimination. Hicks checked the box labeled "race or color," and made no mark in the other boxes, including the one labeled "sex." At the middle of the form is a blank space where the charging party is told to "(e)xplain what unfair thing was done to you and how other persons were treated differently." Hicks wrote a statement alleging disparate treatment and a discriminatory discharge. ¹

On November 16, 1973, a second charge was filed with the EEOC. Again Hicks checked only the box for race discrimination. The statement of explanation indicated

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that Hicks had contacted various government agencies after being informed that he would be discharged, and that his eventual termination was motivated by the company's dissatisfaction with this course of action.

The EEOC, on April 3, 1974, issued its determination that no reasonable cause existed to believe that Hicks had been the victim of race discrimination and sent Mr. Hicks a notification of his statutory right to sue. ²

After numerous unsuccessful attempts to obtain counsel, plaintiff filed a pro se complaint against Abt Associates in the District Court for the Western District of Pennsylvania on June 24, 1974. On that date, the court granted Hicks's motion to proceed in forma pauperis. On June 26 a motion for appointment of counsel under Section 706(f)(1) of the Act, 42 U.S.C. § 2000e-5(f)(1), was denied.

The complaint alleged that various acts of defendant discriminated against plaintiff on the basis of his race and sex, in violation of section 703(a)(1) of Title VII, 42 U.S.C. § 2000e-2(a)(1). It also alleged that his termination was in part based on his attempts to secure an end to such discrimination in various government agencies, in violation of section 704(a), 42 U.S.C. § 2000e-3(a).

Defendant moved for summary judgment based on its deposition of plaintiff and several exhibits. Plaintiff, unrepresented by counsel as he had been at the time of the deposition, put no evidence into the record. He only moved to "dismiss" the defendant's motion by arguing that he had not been permitted to question himself when he was deposed by defendant and that all relevant documents were in defendant's possession.

The district court granted defendant's motion. Two independent reasons were given for the summary judgment. First, the claim with respect to sex discrimination was jurisdictionally barred by statute, since Hicks had not filed such a charge with the EEOC. Second, there were no genuine issues of material fact to preclude entry of judgment for defendant with respect to all the claims alleged in the complaint.

Plaintiff appeals the judgment and the denial of appointed counsel in the district court.

II

The district court held that it did not have jurisdiction over Hicks's claims of sex discrimination because a charge of such discrimination had not been filed with the EEOC. The filing of a charge with the Commission by an aggrieved party and the receipt of a notice of the right to sue are jurisdictional prerequisites to a civil action under Title VII. 42 U.S.C. §§ 2000e-5(e), 2000e-5(f); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Ostapowicz v. Johnson Bronze Co.,541 F.2d 394, 398 (3d Cir. 1976), cert. denied, 429 U.S. 1041, 97 S.Ct. 1041, 50 L.Ed.2d 753 (1977).

The purpose of the filing requirement is to initiate the statutory scheme for remedying discrimination. Once the EEOC receives a charge, it is required to give notice to the employer and to make an investigation to determine whether there is reasonable cause to believe that the charge is true. If cause is found, the EEOC must attempt to use informal means of achieving a settlement of the dispute. If no reasonable cause is found, or if reconciliation attempts prove futile within a certain time, the charging party is issued a notice of his right to bring a civil action. Only after such a letter is received is a civil action permitted. 42 U.S.C. § 2000e-5; Fekete v. United States Steel Corp., 424 F.2d 331 (3d Cir. 1970). Thus, the effect of the filing requirement is essentially to permit the EEOC to use informal, non-judicial means of reconciling the differences between the charging party and an employer. See Ostapowicz v. Johnson Bronze Co., 541 F.2d at 398.

The record in this case shows that the documents filed with the EEOC by plaintiff pointed only to race discrimination as a

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cause of his discharge and disparate treatment. We do not agree with the district court that this fact precludes jurisdiction over the sex discrimination claims alleged in Hicks's complaint and explained in his deposition. There are at least two possible bases for jurisdiction which appear in the record and which cannot be rejected by summary judgment at this point.

First, the record contains evidence which creates a genuine issue of whether Hicks reasonably attempted to amend his charge to include sex discrimination, but the EEOC improperly refused to accept the amendment. We believe that such circumstances would create an excuse for the failure to file a sex discrimination charge.

Under the regulations of the EEOC, "(a) charge may be amended . . . to clarify and amplify allegations made therein. . . . " 29 C.F.R. § 1601.11(b) (1976). Plaintiff during his deposition was asked whether the two charges he filed with the EEOC were all the pleadings filed with that agency. Hicks answered that he had tried to incorporate a sex discrimination allegation subsequent to his original charges, that he "thought it was incorporated." ³ Later he indicated that he had tried to make further charges, but that the EEOC would not accept them. ⁴

The record does not indicate whether the attempt to incorporate sex discrimination in the EEOC charge was made within the required 180-day statutory period. ⁵ Our resolution of the amendment issue in this case does not depend on whether the amendment would have been filed within that time period. For convenience, however, we will first consider the issue under the assumption that the attempt to incorporate a sex discrimination claim came within 180 days of the alleged violation by Abt Associates. With that assumption, the deposition raises a genuine issue of whether the EEOC refused to accept a timely amendment, and thus violated its own regulations.

Courts have held that the failure of the EEOC to give notice of a charge to the employer involved or its failure to attempt reconciliation, both of which are required by section 706(b) of Title VII, 42 U.S.C. § 2000e-5(b), does not bar a civil suit by the charging party. See, e. g., Waters v. Heublein, Inc., 547 F.2d 466, 468 (9th Cir. 1976); Thornton v. East Texas Motor Freight, 497 F.2d 416, 424 (6th Cir. 1974); Dent v. St. Louis-San Francisco Railway Co., 406 F.2d 399, 402-03 (5th Cir. 1969). These decisions are based on the concept that, once the Commission has been given its chance to reconcile the parties informally, the individual's right to bring a civil action becomes an indispensable part of the enforcement scheme of Title VII. This right should not be defeated by the EEOC's failure to comply with its statutory obligations. See Waters v. Heublein, Inc., 547 F.2d at 468; Thornton v. East Texas Motor Freight, 497 F.2d at 424; Beverly v. Lone Star Lead Construction Corp., 437 F.2d 1136, 1138 (5th Cir. 1971); McAdams v. Thermal Industries,Inc., 428 F.Supp. 156, 159-60 (W.D.Pa.1977); Fesel v. Masonic Home of Delaware, Inc., 428 F.Supp. 573, 576 (D.Del.1977); cf. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) (failure of EEOC to find reasonable cause does not affect right to bring civil suit); Fekete v. United States Steel Corp., 424 F.2d 331, 336 (3d Cir. 1970) (same).

We believe that the same result should follow if it is shown that the EEOC improperly refused to accept an amendment to a charge. Once the charging party has done all that he can reasonably do to amend his charge in accordance with the Commission's regulations, the statutory policy of providing the EEOC with an...