Jenkins v. Blue Cross Mut. Hosp. Ins., Inc.

• Decision Date: 26 January 1976
• Docket Number: No. 75-1231,75-1231
• Citation: 538 F.2d 164
• Parties: 13 Fair Empl.Prac.Cas. 52, 12 Empl. Prac. Dec. P 11,103 Beverly Jeanne JENKINS, Plaintiff-Appellant, v. BLUE CROSS MUTUAL HOSPITAL INSURANCE, INC., and Blue Shield Mutual MedicalInsurance, Inc., Defendants-Appellees. . Reheard In Banc
• Court: U.S. Court of Appeals — Seventh Circuit

Page 164

538 F.2d 164

13 Fair Empl.Prac.Cas. 52, 12 Empl. Prac.

Dec. P 11,103

Beverly Jeanne JENKINS, Plaintiff-Appellant, v. BLUE CROSS MUTUAL HOSPITAL INSURANCE, INC., and Blue Shield

Mutual MedicalInsurance, Inc., Defendants-Appellees.

No. 75-1231.

United States Court of Appeals, Seventh Circuit

.

Reheard In Banc Jan. 26, 1976.

Decided July 21, 1976.

John O. Moss, Indianapolis, Ind., Paul J. Spiegelman, Berkeley, Cal., for plaintiff-appellant.

Charles L. Reischel, Equal Employment Opportunity Commission, Washington, D.C., for EEOC.

D. Reed Scism, Indianapolis, Ind., for defendants-appellees.

Before FAIRCHILD, Chief Judge, and SWYGERT, CUMMINGS, PELL, SPRECHER, TONE and BAUER, Circuit Judges.

SPRECHER, Circuit Judge.

This appeal reheard in banc concentrates on whether the alleged victim of racial and sex discrimination made sufficiently like or reasonably related allegations in her charges to the Equal Employment Opportunity Commission to support, and out of which could grow or reasonably be expected to grow, the racial and sex allegations in her judicial complaint.

I.

The plaintiff brought this action on her own behalf and on behalf of other persons similarly situated as a class action, charging the defendants, her former employers, with denying her promotions and better assignments, and with ultimately terminating her employment because of her "race, sex, black styles of hair and dress," in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. and 42 U.S.C. § 1981. The plaintiff sought declaratory and injunctive relief, reinstatement with backpay and other money damages.

On July 17, 1974, the district court denied the plaintiff's motion seeking an order pursuant to F.R.Civ.P. 23(c)(1) determining that the action be maintainable as a class action. ¹ The court stated that "a Title VII complaint must be viewed in relationship to the charges filed by the plaintiff against the defendant before the Equal Employment Opportunity Commission." The court's reasoning in denying certification of a class action was that: (1) "(i)t is clear that she did not raise sex before the EEOC . . ."; (2) "(w) hile there is an arguable connection to race by the allegation of hair style discrimination, such is not sufficient to raise the panorama of alleged (racial) evils plaintiff seeks to adjudicate in her complaint"; (3) "(h)er class could, therefore, only be composed of those persons denied promotion or not hired for wearing an Afro hair style"; and (4) "(n)o proof has been presented to the Court to show that this group of people would be so large that joinder of them in this action would be impracticable."

On January 21, 1975, the district court denied the plaintiff's motion for a preliminary injunction. The plaintiff's notice of appeal was from both the July 17, 1974 and January 21, 1975 orders.

Upon this appeal a panel of this court reversed the district court's judgment "(i)n light of the fact that the trial court dismissed the complaint because of the failure of the named plaintiff to qualify as representative of her class under Title VII, without giving consideration to the claim based on § 1981, and since we conclude that the relief claimed under § 1981 need not be based on any form of claim filed with the EEOC . . ." Jenkins v. Blue Cross Mutual Hospital Insurance, Inc., 522 F.2d 1235, 1241 (7th Cir.1975). The case was remanded for the district court to give consideration to whether the plaintiff could qualify as a representative of the class upon her § 1981 claim, which alleged only racial discrimination, and thereafter to consider "what equitable relief the plaintiff may be entitled to." Id. at 1242.

II.

A petition for rehearing in banc was granted. Every member of the court would reach the same end result as the panel did that is, reverse the judgment and remand the case. Also every member would do so for at least the same reason as the panel did, namely failure of the district court to give consideration to plaintiff's § 1981 claim. ²

At least seven circuits, including this one, have held that § 1981 is independent of Title VII, that Title VII creates no procedural barriers to § 1981 actions, and that § 1981 is available regardless of whether one has pursued his Title VII administrative remedies. Macklin v. Spector Freight Systems, Inc., 156 U.S.App.D.C. 69, 478 F.2d 979, 996 (1973); Gersham v. Chambers, 501 F.2d 687, 691 (2d Cir.1974); Young v. International Telephone & Telegraph Co., 438 F.2d 757, 763 (3d Cir.1971); Alpha Portland Cement Co. v. Reese, 507 F.2d 607, 610 (5th Cir.1975); Guerra v. Manchester Terminal Corp., 498 F.2d 641, 652 (5th Cir.1974); Hill v. American Airlines, Inc., 479 F.2d 1057, 1060 (5th Cir.1973); Caldwell v. National Brewing Co., 443 F.2d 1044, 1046 (5th Cir.1971), cert. den., 405 U.S. 916, 92 S.Ct. 931, 30 L.Ed.2d 785 (1972); Long v. Ford Motor Co., 496 F.2d 500, 503 (6th Cir.1974); Waters v. Wisconsin Steel Works of International Harvester Co., 502 F.2d 1309, 1315 (7th Cir.1974), cert. den., --- U.S. ----, 96 S.Ct. 2214, 48 L.Ed.2d 823 (1976); Brady v. Bristol-Meyers, Inc., 459 F.2d 621, 623 (8th Cir.1972).

Finally, every member of the court would agree with the panel's conclusion that the propriety and nature of equitable relief should depend at the minimum upon the resolution of the § 1981 question.

III.

At this point, however, the views of the court divide. The district court had concluded that the plaintiff's EEOC charges limited her Title VII court complaint to charges of discrimination because of her wearing an Afro hair style. The original appeal panel consisting of Judges Tuttle, ³ Tone and Bauer was "unanimously of the view that the (EEOC) charge does not form the proper basis under Title VII for any complaint of discrimination on the basis of sex." 522 F.2d at 1241. Judges Tone and Bauer also agreed with the district court that the EEOC charge did not support allegations of racial discrimination beyond those due to wearing an Afro hair style. "Judge Tuttle would hold that the charge was sufficient under the announced standard to support the (racial) allegations of the complaint."

Id.

Upon the rehearing in banc a majority of the entire court ⁴ concluded that the judgment should be reversed and remanded not only because of the § 1981 claim but also because the plaintiff's EEOC charges adequately support her judicial complaints of racial and sex discrimination.

The plaintiff's charge form, filed on June 8, 1971, with the EEOC, showed a check mark in the box on the form to indicate that the discrimination was because of "Race or Color" but no check mark appeared in the box preceded by the word "Sex." The explanation the plaintiff gave on the form for the discrimination was:

I feel that I am being discriminated in the terms and conditions of my employment because of my race, Negro. I have worked for Blue Cross and Blue Shield approx. 3 years during which time I (had) no problem until May 1970 when I got my natural hair style. Later when I came up for promotion it was denied because my supervisor, Al Frymier, said I could never represent Blue Cross with my Afro. He also accused me of being the leader of the girls on the floor. The pressures I was working under kept me upset, therefore, I asked for a leave of absence. I was told I had to take a vacation before I could be granted leave of absence. I was granted a week vacation and on my return I was asked to take a 90 day leave, quit, or be fired, time they said to get myself together; and at the end of this time they would be able to place me on another job. A White employee who associated with me might have been denied her promotion because of her association with me.

The plaintiff received her statutory notice of her right to sue from the EEOC on August 4, 1972 and filed her complaint in the district court on August 28, 1972.

The entire court accepts the standard referred to in the panel decision as the guiding principle in its determination, namely that set forth in Danner v. Phillips Petroleum Co., 447 F.2d 159, 162 (5th Cir.1971):

The correct rule to follow in construing EEOC charges for purposes of delineating the proper scope of a subsequent judicial inquiry is that "the complaint in the civil action . . . may properly encompass any . . . discrimination like or reasonably related to the allegations of the charge and growing out of such allegations."

The majority parts with the panel in its application of the standard.

In Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972), the Supreme Court unanimously expressed its opinion that "we hold to less stringent standards (the allegations of a pro se complaint) than formal pleadings drafted by lawyers . . ." In a case also unanimously decided a few days later, Love v. Pullman Co., 404 U.S. 522, 527, 92 S.Ct. 616, 619, 30 L.Ed.2d 679 (1972), involving EEOC procedure, the Court said that "technicalities are particularly inappropriate in a statutory scheme in which laymen, unassisted by trained lawyers, initiated the process."

We have held that Title VII is to "be construed and applied broadly," Motorola, Inc. v. McLain, 484 F.2d 1339, 1344 (7th Cir.1973), and in doing so, we have recognized that EEOC charges are in layman's language, Cox v. United States Gypsum Co., 409 F.2d 289, 290-1 (7th Cir.1969). The context in which we must operate was well stated by Judge Bauer in Willis v. Chicago Extruded Metals Co., 375 F.Supp. 362, 365-366 (N.D.Ill.1974) (footnotes omitted):

(T)he Civil Rights Act is designed to protect those who are least able to protect themselves. Complainants to the EEOC are seldom lawyers. To compel the charging party to specifically articulate in a charge filed with the Commission the full panoply of discrimination which he may have suffered may cause the very persons Title VII was designed to protect to lose that protection because they are ignorant of or unable to thoroughly...