Hochstadt v. WORCESTER FOUNDATION, ETC.

• Decision Date: 05 January 1976
• Docket Number: Civ. A. No. 75-3617-M.
• Citation: 425 F. Supp. 318
• Parties: Dr. Joy HOCHSTADT, Plaintiff, v. WORCESTER FOUNDATION FOR EXPERIMENTAL BIOLOGY, INC., et al., Defendants.
• Court: U.S. District Court — District of Massachusetts

425 F. Supp. 318

Dr. Joy HOCHSTADT, Plaintiff, v. WORCESTER FOUNDATION FOR EXPERIMENTAL BIOLOGY, INC., et al., Defendants.

Civ. A. No. 75-3617-M.

United States District Court, D. Massachusetts.

January 5, 1976.

COPYRIGHT MATERIAL OMITTED

Nancy Gertner of Silverglate, Shapiro & Gertner, Boston, Mass., for plaintiff.

John Taylor Williams and Judith Ashton, Haussermann, Davison & Shattuck, Boston, Mass., for defendants.

MEMORANDUM on APPLICATION FOR PRELIMINARY INJUNCTION

FRANK J. MURRAY, District Judge.

Plaintiff alleges in her complaint that she has been discharged from her employment with the defendant Worcester Foundation for Experimental Biology, Inc. (Foundation), effective December 31, 1975, because of her opposition to Foundation's employment practices made unlawful by 42 U.S.C. § 2000e-1 et seq. She has begun proceedings before the Equal Employment Opportunity Commission (EEOC) challenging the discharge, and she seeks injunctive relief here to maintain the status quo of her employment pending the outcome of the proceedings before EEOC.¹ Defendants have moved to dismiss the complaint under Fed.R.Civ.P. 12(b)(1), (6) and (7). The court deferred consideration of the motion to dismiss pending hearing of the application for preliminary injunction.

Certain facts are not in dispute, and will be summarized at the outset of the memorandum; other facts found by the court will be referred to hereafter in the discussion of the case.

Plaintiff entered the employ of the Foundation as a Senior Scientist under a contract which became effective January 1, 1972. On July 27, 1973 plaintiff filed complaints with the Massachusetts Commission Against Discrimination, and with EEOC, charging the Foundation with discrimination against her in salary and conditions of employment. She also filed a complaint with the Department of Health, Education, and Welfare, Office for Civil Rights, charging the Foundation with failing to implement an adequate affirmative action plan, and a complaint with the Department of Labor, Wage and Hour Division. On September 25, 1974 she filed a civil action in this court (Civil No. 74-4541-G) against the Foundation charging sex discrimination. That action was settled by payment of a sum of money to plaintiff and by her dismissal of all pending court and administrative proceedings. In April 1975, an academic evaluation of plaintiff placed her among the lowest 25% of scientists at the Foundation. In May 1975, she met with Dr. Ashton Gibbons, personnel and equal employment opportunity officer for the Foundation, and discussed with him her complaint about her evaluation. On June 9, 1975 written notice of the termination of her employment, effective December 31, 1975, was given plaintiff by the Foundation. She thereupon made a complaint to EEOC alleging that the discharge was a retaliation for her opposition to unfair employment practices, 42 U.S.C. § 2000e-3(a). She requested EEOC to seek preliminary relief in her behalf. EEOC responded that its litigation backlog made such action impossible.

The Motion to Dismiss

A.

The first three grounds of the motion² raise essentially the same point and will be considered together. Defendants contend that without a right-to-sue letter from EEOC plaintiff cannot invoke the jurisdiction of this court to seek a preliminary injunction to preserve the status quo of her employment. While such a letter is a jurisdictional requirement which must be met before the court can consider a discrimination claim on the merits, see, e. g., McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798-99, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), this case presents only the question whether this court can grant relief to preserve the status quo until EEOC acts. Resolution of this question involves determining the intent of Congress from the statutory provisions and other relevant material.

Defendants contend the requirement of the right-to-sue letter also applies in a proceeding to obtain relief to preserve the status quo. The court has been made aware of only two reported decisions dealing squarely with this issue. Collins v. Southwestern Bell Telephone, 376 F.Supp. 979 (E.D.Okl. 1974); Troy v. Shell Oil Co., 378 F.Supp. 1042 (E.D.Mich.1974), appeal dismissed as moot, 519 F.2d 403 (6th Cir. 1975). Both cases support defendants' position. Support for the plaintiff's position exists by way of dicta in several cases. See, e. g., Berg v. Richmond Unified School District, 528 F.2d 1208, at 1212 (9th Cir. 1975); Drew v. Liberty Mutual Insurance Co., 480 F.2d 69, 72 (5th Cir. 1973), cert. denied, 417 U.S. 935, 94 S.Ct. 2650, 41 L.Ed.2d 239 (1974). These cases are not binding authority on this court, which consequently must seek an answer based on the intent of Congress.

The statutory scheme, 42 U.S.C. § 2000e-5(f)(1), (f)(2) (1974),³ contemplates that EEOC "would have an opportunity to settle disputes through conference, conciliation, and persuasion before the aggrieved party was permitted to file a lawsuit." Alexander v. Gardner-Denver Co., 415 U.S. 36, 44, 94 S.Ct. 1011, 1017, 39 L.Ed.2d 147 (1974). The requirement that the aggrieved party receive the statutory notice before commencing a lawsuit serves the statutory purpose of encouraging conciliation. The purpose of the right-to-sue letter is to notify the complainant that his administrative remedies before EEOC have been exhausted, Beverly v. Lone Star Lead Const. Corp., 437 F.2d 1136, 1140 (5th Cir. 1971), Shaffield v. Northrop Worldwide Aircraft Services, Inc., 373 F.Supp. 937, 940 (M.D.Ala. 1974); Harris v. Sherwood Medical Industries, Inc., 386 F.Supp. 1149 (E.D.Mo.1974), and EEOC should not issue the letter until it has completed its investigation and failed to achieve an acceptable conciliation. See Cleveland v. Douglas Aircraft, 509 F.2d 1027-28 (9th Cir. 1975); see also 29 C.F.R. § 1601.25 (1974).

EEOC has an enormous backlog of cases. See H.R.Rep. 92-238, 1972 U.S.Code Cong. and Admin.News, 92d Cong., 2d Sess., pp. 2146-47; United States v. Allegheny-Ludlum Industries, Inc., 517 F.2d 826, 848 n.25 (5th Cir. 1975). Many charges of discrimination cannot be processed until a considerable time after filing has passed. In many cases, the interest of the complainant will be protected only if the status quo is maintained pending the outcome of the proceedings. While EEOC may seek preliminary relief, 42 U.S.C. § 2000e-5(f)(2), in many cases, as here, it will be unable to do so. In such circumstances, the intent of Congress to eliminate unfair and discriminatory employment practices is best served by permitting the private employee to seek to preserve the status quo pending the outcome of the proceedings in EEOC. Requiring a right-to-sue letter would thwart this intent and therefore the court holds that a letter is not required in the present case. See Note, Developments in the Law — Employment Discrimination and Title VII of the Civil Rights Act of 1964, 84 Harv.L.Rev. 1109, 1257 (1971); Spurlock, Proscribing Retaliation under Title VII, 8 Ind.L.Rev. 453, 463-64 (1975).

Further, such resolution of this question is particularly appropriate in a retaliation case. Congress has chosen, in large measure, to rely upon the initiative of employees to challenge discriminatory practices. See Alexander v. Gardner-Denver Co., supra, 415 U.S. at 45, 94 S.Ct. 1011; United States v. Allegheny-Ludlum Industries, Inc., supra at 848. The willingness of an employee to oppose discriminatory practices would be dampened if he knew that, should his employer retaliate against him: (1) EEOC would not consider his complaint on the merits for as much as two years; (2) EEOC would likely be unable to seek a preliminary injunction on his behalf; and (3) he would be unable to seek a preliminary injunction himself until at least 180 days had passed and he had obtained a right-to-sue letter. The solution to this dilemma is to permit employees to bring an action to maintain the status quo prior to the exhaustion of remedies before EEOC and the receipt of a right-to-sue letter.

The 1972 amendments to Title VII gave EEOC authority to seek preliminary relief in certain cases. The defendants contend that this grant of authority indicates a Congressional intent to bar private parties from seeking such relief while cases are pending before EEOC. See Collins v. Southwestern Bell Telephone, supra; Troy v. Shell Oil Co., supra. On the other hand, plaintiff claims that the 1972 amendments do not indicate an intent to preclude her from seeking a preliminary order in this case. See Drew v. Liberty Mutual Insurance Co., supra.⁴

It was established prior to the 1972 amendments that private parties who had a right-to-sue letter from EEOC were entitled to preliminary relief in appropriate cases. See Culpepper v. Reynolds Metals Co., 421 F.2d 888 (5th Cir. 1970); Rios v. Enterprise Association of Steamfitters, 326 F.Supp. 198 (S.D.N.Y.1969). The legislative history of the 1972 amendments shows that Congress intended to leave the existing case law untouched in areas where the amendments did not specifically apply. See Sape and Hart, Title VII Reconsidered: The Equal Employment Opportunity Act of 1972, 40 Geo.Wash.L.Rev. 824, 846 (1972). The committee reports show a Congressional concern to increase EEOC's effectiveness in enforcing Title VII, and for the first time it was given authority to obtain preliminary injunctions. Congress did not intend to detract from existing private remedies. Id. This view of the amendments comports with the conclusion reached above that the statutory scheme is best served by permitting the private employee to bring an action to maintain the status quo without first obtaining a right-to-sue letter. Accordingly, insofar as it rests upon the fact that the plaintiff herein has no such letter, the motion to dismiss is denied.

B.

The second ground asserted for dismissal is the failure to join an indispensable party, EEOC. This issue is not briefed;...