Johnson v. Seaboard Air Line Railroad Company, 12154

• Decision Date: 29 October 1968
• Docket Number: 12155.,No. 12154,12154
• Citation: 405 F.2d 645
• Parties: Ray JOHNSON, Appellant, v. SEABOARD AIR LINE RAILROAD COMPANY, Appellee. Charles W. WALKER, Appellant, v. PILOT FREIGHT CARRIERS, INC., Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

405 F.2d 645 (1968)

Ray JOHNSON, Appellant, v. SEABOARD AIR LINE RAILROAD COMPANY, Appellee.

Charles W. WALKER, Appellant, v. PILOT FREIGHT CARRIERS, INC., Appellee.

Nos. 12154, 12155.

United States Court of Appeals Fourth Circuit.

Argued May 9, 1968.

Decided October 29, 1968.

Certiorari Denied March 24, 1969.

Robert Belton, New York City (Jack Greenberg, James M. Nabrit, III, Gabrielle A. Kirk, New York City, J. LeVonne Chambers, Charlotte, N. C., Conrad O. Pearson, Durham, N. C., Joseph W. Bishop, Jr., New Haven, Conn., Albert Rosenthal, New York City, and Sanford Jay Rosen, Baltimore, Md., on brief) for appellants.

Thomas Ashe Lockhart and W. Thomas Ray, Charlotte, N. C. (John S. Cansler, Cansler & Lockhart, Charlotte, N. C., and John W. Weldon, Jacksonville, Fla., on brief) for appellee Seaboard Air Line Railroad Co. Brown Hill Boswell, Charlotte, N. C. (J. W. Alexander, Jr., and Blakeney, Alexander & Machen, Charlotte, N. C., on brief) for appellee Pilot Freight Carriers, Inc.

Russell Spector, Senior Atty., Equal Employment Opportunity Commission (Kenneth F. Holbert, Acting Gen. Counsel, David R. Cashdan, Atty., Equal Employment Opportunity Commission, John Doar, Asst. Atty. Gen., David L. Norman, Elihu E. Leifer, Attys., Dept. of Justice, and Macon L. Weaver, U. S. Atty., on brief) for Equal Employment Opportunity Commission as amicus curiae.

Before BOREMAN, WINTER and CRAVEN, Circuit Judges.

Certiorari Denied March 24, 1969. See 89 S.Ct. 1189.

CRAVEN, Circuit Judge:

Whether an actual attempt by the Equal Employment Opportunity Commission to eliminate an unlawful employment practice is a jurisdictional prerequisite to a suit by an individual plaintiff¹ under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(e) is the question presented by these appeals. We think not and reverse the orders of the district judge granting the defendants' motions to dismiss.

Ray Johnson, on January 14, 1966, filed a charge of employment discrimination with the Commission against Seaboard Coast Line Railroad Company. The Commission's investigation of the charge showed that Johnson, who had been employed by Seaboard as a porter from 1940 to 1965, was dismissed, ostensibly because of a conviction for a misdemeanor; that the offense occurred while Johnson was off duty and not on Seaboard's property and occasioned no loss of time from his job; that Johnson had written letters protesting Seaboard's racial discrimination to the President's Committee on Equal Employment, the National Railroad Adjustment Board, and the United States Attorney General; and that Seaboard's agents were uncooperative when questioned by the Commission's investigator about company practices and regulations used to discipline white employees and about conduct standards used for Seaboard's employees generally.² On the basis of these findings, the Commission determined, on July 18, 1966, that there was reasonable cause to believe that Seaboard had violated Title VII in dismissing Johnson. On August 8, 1966, the Commission notified Johnson by letter that due to its heavy work load it had been "impossible to undertake or to conclude conciliation efforts," but that he was entitled to institute a civil action within 30 days of receipt of the letter.³ Johnson filed his complaint in the District Court for the Western District of North Carolina on September 7, 1966.

The facts in No. 12,155 are substantially similar. Charles Walker filed his charge with the Commission on February 28, 1966, and amended it on March 15, 1966. On July 20, 1966, the Commission determined that reasonable cause existed in Walker's case also, basing the decision on its investigation which showed that Walker's application to Pilot Freight Carriers, Inc. for employment as an over-the-road truck driver was denied; that no Negroes were currently employed by Pilot and had been employed in the past only in casual positions; that Pilot hired five drivers after Walker's application was denied; that of the five, two had applied after Walker, and only one of the five met the company's employment qualifications; and that Pilot made no effort to determine Walker's qualifications. A letter, similar in all respects to the one sent Johnson, was mailed to Walker by the Commission on August 5, 1966, and on August 23, 1966, Walker filed his complaint.

On the basis of a memorandum of decision filed January 25, 1968, the District Court for the Western District of North Carolina dismissed the complaints of both Johnson and Walker on the sole ground that "Congress intended that conciliation efforts be made prior to the institution of civil actions and that this is a jurisdictional prerequisite to the right to file a civil action."

It seems clear to us that the statute, on its face, does not establish an attempt by the Commission to achieve voluntary compliance as a jurisdictional prerequisite. Quite obviously, 42 U.S.C. § 2000e-5(a) does charge the Commission with the duty to make such an attempt if it finds reasonable cause, "but it does not prohibit a charging party from filing suit when such an attempt fails to materialize."⁴ Mondy v. Crown Zellerbach Corp., 271 F.Supp. 258, 262 (E.D.La. 1967). Subsection (e), which contains the authorization for civil actions, provides only that the action may not be brought unless "the Commission had been unable to obtain voluntary compliance."⁵

The defendants argue that Section 2000e-5 must be read as a whole and that, so read, the use of the word, "unable," in subsection (e) implies that the duty imposed by subsection (a) must be fully performed before a civil action is authorized. We do not agree. "Unable" is not defined by statute to give it a narrow or special meaning. We think "unable" means simply unable — and that a commission prevented by lack of appropriations and inadequate staff⁶ from attempting persuasion is just as "unable" to obtain voluntary compliance as a commission frustrated by the recalcitrance of an employer or a union. Contra, Dent v. St. Louis-San Francisco Ry. Co., 265 F.Supp. 56, 61 (N.D.Ala.1967). At most, we think, a reading of the two sections together means only that the Commission must be given an opportunity to persuade before an aggrieved person may resort to court action. See Stebbins v. Nationwide Mut. Ins. Co., 382 F.2d 267 (4th Cir. 1967); Mickel v. South Carolina State Employment Serv., 377 F.2d 239 (4th Cir. 1967).

If the plain language of the statute will not support their contention, the defendants, relying heavily on Dent v. St. Louis-San Francisco Ry. Co., supra, urge that its legislative history shows a congressional intent to require that civil actions under Title VII be preceded by informal efforts to achieve voluntary compliance. However, the legislative history is not so clear as the defendants would have it. Hall v. Werthan Bag Corp., 251 F.Supp. 184, 186 (M.D.Tenn. 1966). The bill underwent extensive revisions culminating in a leadership compromise,⁷ and "a cogent explanation of the policies underlying the compromise was never offered." Comment, 32 U.Chi. L.Rev. 430, 432 (1965).

Our examination of the bill's history indicates that either side can find statements that, taken out of context, support their position.⁸ For example, during the debate that we regard as most enlightening on the issue at hand, totally inconsistent explanations of the bill were offered by its proponents and its opponents. Senator Ervin remarked,

"It may not mean anything to the Senator from New Jersey Mr. Case but the bill certainly puts the key to the courthouse door in the hands of the Commission. This is true because the aggrieved party cannot sue in the Federal courts unless the Commission first finds that there is reasonable cause to believe the charge is true and then fails to adjust the matter by conciliation."

110 Cong.Rec. 14188 (1964). Apparently in reply to Senator Ervin, Senator Javits said,

"The fatal defect of the amendment is that the provision it would amend is not the key to the courtroom door, because the Commission does not have to find that the complaint is a valid one before the complainant individually can sue * * *. The only thing this title gives the Commission is time in which to find that there has been a violation and time in which to seek conciliation. * * *

"But Mr. President, that is not a condition precedent to the action of taking a defendant into court. A complainant has an absolute right to go into court, and this provision does not affect that right at all."

Id. at 14191. And Senator Humphrey's opinion was, "The individual may proceed in his own right at any time. He may take his complaint to the Commission, he may bypass the Commission, or he may go directly to court." Id. at 14188.

Such diversity of opinion, without more, destroys defendants' contention that the legislative history compels their interpretation of the Act. Moreover, none of these statements was directed to the jurisdictional question. They were, instead, directed to Senator Ervin's amendment No. 590 which was designed to strike out that portion of Title VII that permits a member of the Commission to file a charge of discrimination against an employer.⁹ Senator Ervin's argument was that this provision entrusted the Commission with the roles of both prosecutor and judge; the opponents of the amendment argued that since the Commission was enpowered only to determine probable cause, no due process problem would be occasioned by this dual role. It was in reply to that argument that Senator Ervin, in an effort to point out that the Commission's power was not so minimal as the bill's proponents suggested, made the statement quoted above. No one's attention was more than tangentially directed to the problem of jurisdictional prerequisites for a civil action.¹⁰ If we were compelled to choose among the statements, we would be more inclined to accept the statements of Senators Humphrey and Javits, indulging the inference...