Jamison v. Olga Coal Company

• Decision Date: 14 December 1971
• Docket Number: Civ. A. No. 1255.
• Citation: 335 F. Supp. 454
• Parties: Edward JAMISON, Plaintiff, v. OLGA COAL COMPANY, a corporation, et al., Defendants.
• Court: U.S. District Court — Southern District of West Virginia

335 F. Supp. 454

Edward JAMISON, Plaintiff, v. OLGA COAL COMPANY, a corporation, et al., Defendants.

Civ. A. No. 1255.

United States District Court, S. D. West Virginia, Bluefield Division.

December 14, 1971.

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John Troelstrup, Weaver & Troelstrup, Charleston, W. Va., for plaintiff.

Charles A. Tutwiler, Crockett, Tutwiler & Crockett, Welch, W. Va., for defendant Olga Coal Co.

M. E. Boiarsky and R. L. Theibert, Charleston, W. Va., for Local No. 6026.

Edward L. Carey and Charles L. Widman, Washington, D. C., M. E. Boiarsky and R. L. Theibert, Charleston, W. Va., for District No. 29 and United Mine Workers of America.

CHRISTIE, District Judge:

Plaintiff, Edward Jamison, brings this action on behalf of himself and the class he proposes to represent alleging racially discriminatory practices on the part of both the defendant employer and the defendant unions. The rights of plaintiff and the class he represents are alleged to arise under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., Section 1 of the Civil Rights Act of 1866, 42 U.S.C. § 1981, and Section 1 et seq. of the Labor Management Relations Act, 29 U.S.C. § 151 et seq. Jurisdiction is based upon Section 706(f) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(f), 28 U.S.C. § 1343(4), and 28 U.S.C. §§ 2201 and 2202. The complaint seeks declaratory relief, injunctive relief and damages.

I. PRELIMINARY PROCEEDINGS

On August 5, 1966, Edward Jamison, an employee of defendant Olga Coal Company (Olga) and a member of Local No. 6026, District No. 29, United Mine Workers of America (Local 6026), a labor organization with which Olga has a collective bargaining agreement, filed a charge against Olga and Local 6026 with the Equal Employment Opportunity Commission (EEOC), pursuant to the provisions of 42 U.S.C. § 2000e-5(d). In his charge before the EEOC, Jamison alleged that Olga had failed to promote him from brakeman to motorman because of his race and that Olga denied Negroes promotions to better jobs. He also charged that Local 6026, though aware of Olga's discriminatory practices, failed to protest such practices and did nothing to secure promotions and other job opportunities denied to Negroes.¹ On the same date, August 5, 1966, Lee Heard filed a charge with the EEOC against Olga alleging that Olga refused to hire him because of his race; also asserting that Olga engaged in a pattern or practice of denying employment to Negroes. On February 15, 1967, Arthur Carlton filed a charge with the EEOC alleging that Olga, his employer, had denied him assignment as a maintenance helper because of his race; also alleging that Olga maintained racially restricted job categories and denied Negroes promotions to better jobs.

The EEOC assumed jurisdiction of the charges made by the three parties and caused notice thereof to be served on Olga and Local 6026. As a result of its investigation, by a decision dated September 5, 1969, the EEOC found that, while the specific charge of Edward Jamison with respect to the failure to promote him from brakeman to motorman was not within its jurisdiction since it occurred more than 90 days before the charge was filed with it, reasonable cause did exist to believe that Olga and Local 6026 were in violation of Title VII of the Civil Rights Act of 1964 with regard to the remaining charges made by Heard, Carlton and Jamison. By notice dated September 25, 1970, received by plaintiff Edward Jamison "on or about" September 28, 1970, the EEOC notified Jamison of his right to commence a civil action in the District Court within 30 days. Thereafter, on October 28, 1970, Jamison filed the instant action. The case is presently before the court pursuant to various motions made by the defendants seeking dismissal of the complaint. Numerous grounds are asserted by defendants for dismissal, and they will be discussed in the order in which they were presented in defendants' motions.

II. THE 1964 CIVIL RIGHTS ACT Subject-Matter Jurisdiction in District Court

Defendants first allege that this court lacks subject-matter jurisdiction over plaintiff's claim, asserting that the discrimination complained of occurred prior to July 2, 1965, the effective date of the 1964 Civil Rights Act. Defendants also assert that the discriminatory acts complained of occurred more than 90 days before plaintiff filed his charge with the EEOC.

Sub-section (d) of Section 2000e-5 of the Civil Rights Act provides that a charge of unlawful employment practices under the Act shall be filed within 90 days after the alleged unlawful employment practice has occurred. The courts which have been called upon to decide the question have held, almost unanimously, that the requirement of filing the charge within 90 days of the alleged unlawful practice is a jurisdictional prerequisite to a subsequent civil suit under Title VII, Mickel v. South Carolina State Employment Service, 377 F.2d 239 (4th Cir. 1967), cert. den. 389 U.S. 877, 88 S.Ct. 177, 19 L.Ed.2d 166; Younger v. Glamorgan Pipe and Foundry Company, 310 F.Supp. 195 (W.D.Pa. 1969). At the same time, however, the courts have recognized that unlawful employment practices under the Act may involve a pattern of conduct extending over a period of time, a "continuing" violation rather than a single incident, and in such cases the 90-day requirement is satisfied if the charge is filed with the EEOC while such conduct or pattern of conduct continues or within 90 days after it ceases. Sciaraffa v. Oxford Paper Company, 310 F.Supp. 891 (D.C.Maine 1970); Cox v. United States Gypsum Co., 409 F.2d 289 (7th Cir. 1969).

In asserting that the discriminatory conduct complained of occurred prior to the effective date of the Act and more than 90 days before plaintiff filed his charge with the EEOC, defendants completely ignore the fact that plaintiff Jamison's charge before the EEOC involved two separate areas of discrimination, one general and one specific. While it is true that the specific charge of discrimination with respect to the promotion of Jamison to the position of motorman apparently relates to conduct on the part of the defendants prior to the effective date of the Civil Rights Act of 1964, and to an incident occurring more than 90 days before the filing of the charge with the EEOC, nevertheless, the general charge of a denial of promotions to Negroes to better jobs and the failure on the part of the defendant unions to seek redress of such discrimination is not confined to the same time period as was the specific charge. Indeed, the complaint in this action and the charge before the EEOC both allege a pattern of conduct apparently continuing to the time of filing the charge with EEOC and beyond, which would obviously meet the requirement that the discrimination complained of must occur subsequent to the effective date of the Civil Rights Act of 1964 and that the complaint must be filed with the EEOC within 90 days of the alleged unlawful practice.

The charge made by plaintiff Jamison before the EEOC alleging that Olga denied Negroes promotions to better jobs and that Local 6026, although aware of such discriminatory practices, failed to take any action to alleviate such practices, constitutes a charge of "continuing" discrimination and was recognized as such by the EEOC in its decision.² The record before this court, insofar as it discloses the nature and extent of the alleged unlawful employment practices, indicates that these practices continued up to the time of filing the charge with EEOC. Under such circumstances, defendants' motions to dismiss for failure to satisfy the 90-day requirement, therefore, must be denied. The same reasoning requires the Court to deny defendants' motions to dismiss based upon the allegation that the discrimination charged in plaintiff's complaint occurred prior to the effective date of the Civil Rights Act of 1964.

Requirement that Suit be Filed in District Court Within 30 Days

Sub-section (e) of Section 2000e-5 of the Civil Rights Act of 1964 provides that in the event the EEOC has been unable to obtain voluntary compliance with the requirements of the Act, it shall so notify the person aggrieved "and a civil action may, within thirty days thereafter, be brought against the respondent named in the charge . . . by the person claiming to be aggrieved . . .." Like the 90-day requirement with respect to filing charges with the EEOC, 42 U.S.C. § 2000e-5(d), the 30-day requirement for instituting suit in the District Court has been held to be a jurisdictional requirement, and failure to bring suit within the stipulated period will bar relief under Title VII, Goodman v. City Products Corporation, Ben Franklin Division, 425 F.2d 702 (6th Cir. 1970). This 30-day limitation period, however, does not begin to run until the notice from EEOC of its failure to achieve voluntary compliance has been received by the aggrieved person, Miller v. International Paper Company, 408 F.2d 283 (5th Cir. 1969).

In the instant case, plaintiff has alleged that "on or about September 28, 1970, plaintiff was advised that defendants' compliance with Title VII had not been accomplished within the period allowed to the Commission by Title VII and that he was entitled to institute a civil action in the appropriate Federal District Court within thirty (30) days of receipt of said letter." While it is true, as defendants contend, that it is not possible to determine from this language, with any degree of certainty, whether or not the 30-day requirement of Section 2000e-5(e) was met by plaintiff, nevertheless, the difficulty arises not from plaintiff's failure to assert in his pleading that the 30-day requirement was met, but from his failure to allege such fact with the required degree of precision. The Court, however, is not inclined to treat such failure as a ground for dismissal. Instead, since no responsive pleadings have been filed, the...