Jones v. United Gas Improvement Corporation, Civ. A. No. 73-2485.

• Court: United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
• Writing for the Court: Leon Ehrlich, Reading, Pa., for defendant System Council
• Citation: 383 F. Supp. 420
• Parties: Elmer Dave JONES, Jr., et al., Plaintiffs, v. UNITED GAS IMPROVEMENT CORPORATION et al., Defendants.
• Docket Number: Civ. A. No. 73-2485.
• Decision Date: 06 January 1975

383 F. Supp. 420

Elmer Dave JONES, Jr., et al., Plaintiffs,
v.
UNITED GAS IMPROVEMENT CORPORATION et al., Defendants.

Civ. A. No. 73-2485.

United States District Court, E. D. Pennsylvania.

September 25, 1974.

As Amended January 6, 1975.

383 F. Supp. 421

COPYRIGHT MATERIAL OMITTED

383 F. Supp. 422

Michael H. Cox, Philadelphia, Pa., Howard L. Schambelan, Philadelphia, Pa., for plaintiffs

Mark S. Dichter, Richard P. Brown, Jr., Joseph I. Goldstein, Philadelphia, Pa., for defendant United Gas Improvement Corp.

Glenn V. Whitaker, Washington, D. C., Warren J. Borish, Philadelphia, Pa., for defendant Local Union 600.

Leon Ehrlich, Reading, Pa., for defendant System Council.

MEMORANDUM AND ORDER

FOGEL, District Judge.

In this employment discrimination case, plaintiffs Elmer Dave Jones, Jr., Frank McCracken and the Puerto Rican Fraternity of Philadelphia (the Fraternity), allege racially prejudicial practices against black and Spanish-surnamed persons by defendants United Gas Improvement Corporation (UGI), Gas Fitter-Utility Employees Local Union No. 600, affiliated with the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO (Local 600), and System Council U-22 of the International Brotherhood of Electrical Workers (System Council U-22).

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (Title VII), the Civil Rights Act of 1870, 42 U.S.C. § 1981 (§ 1981), and the Civil Rights Act of 1871, 42 U.S.C. § 1983 (§ 1983), are alleged as the substantive bases for plaintiffs' action; jurisdiction is averred under 42 U.S.C. § 2000e-5(f), 28 U.S.C. § 1343(4), and 28 U.S.C. §§ 2201 and 2202.¹

Defendant UGI has filed a motion to dismiss the complaint, and defendants Local 600 and System Council U-22 have filed motions to dismiss, or, in the alternative, seek summary judgment. When the matter first came before us for oral argument, we suggested that the parties review the litigation at that stage and attempt to simplify the issues without sacrificing any claim or defense they considered material to their respective positions. The parties did so and, as a result, plaintiffs have voluntarily withdrawn all claims against all defendants brought pursuant to § 1983, and all claims against Local 600 and System Council U-22 brought pursuant to Title VII. Thus, at this stage of the litigation, there remain Title VII claims against UGI only, and § 1981 claims against all defendants. The nature of the action, however, even as modified, produces certain common as well as individual defenses. Hence, to avoid unnecessary repetition of the contentions of the parties inter se, we will summarize

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the issues before us for resolution at this juncture:²

1. The propriety of Jones' status as a plaintiff;

2. The propriety of McCracken's status as a plaintiff;

3. The standing of the Fraternity as a plaintiff;

4. The applicable statute of limitations in § 1981 actions;

5. The standing of all three plaintiffs to bring an action against Local 600 and System Council U-22.

We deal with these issues seriatim.

1. The propriety of Jones' status as a plaintiff

Defendants contend this Court lacks jurisdiction under Title VII because plaintiff Jones did not receive a valid "right to sue" letter before commencing his action.³ In order to assess the force of this contention, we will briefly discuss the procedural history of Jones' claim of discrimination, before the Equal Employment Opportunity Commission (hereinafter the EEOC) and before this Court.

Jones was employed by UGI on or about October 21, 1970, and was discharged on July 6, 1971. The following day he filed a charge of discrimination with the EEOC alleging harassment by UGI supervisors and fellow employees because he was black, and asserting that "the Company's employment practices operate in such a manner as to limit the opportunities for Negroes in terms of hire, classification, promotional terms and other conditions of employment."⁴ Neither Local 600 nor System Council U-22 was named in the charge. The Commission conducted an investigation, and prepared an administrative record, the contents of which are not before the Court at this time. Efforts at conciliation failed, and Jones by letter of September 29, 1973, and his attorney, by letter of October 1, 1973,⁵ requested a right to sue letter from the District Office of the EEOC. The instant action was filed on November 1, 1973. On January 3, 1974, a right to sue letter was issued by the Acting District Director of the Philadelphia District Office of the EEOC, but not by any EEOC member or by any official with the Washington, D.C. office of the Agency.⁶

The following issues arise from these facts: (1) Does the subsequent issuance of the right to sue letter cure the jurisdictional defect which may have existed initially? (2) Was the Acting District Director of the Philadelphia office of the EEOC an official authorized to issue

383 F. Supp. 424

a valid letter, irrespective of the date of issuance

We deal first with the effect of agency action after institution of the suit.

There are two general prerequisites to maintenance of an action in the District Court pursuant to the provisions of Title VII. The first is timely filing of charges of employment discrimination with the EEOC, 42 U.S.C. § 2000e-5(e). The second is receipt of a right to sue letter from the EEOC, and institution of suit within the time period mandated by 42 U.S.C. § 2000e-5(f)(1). McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).

It is clear that Jones' complied with the first of these conditions precedent, because he filed his complaint with the EEOC, claiming, inter alia, that his discharge by UGI was racially motivated, the day following termination of his employment.

With respect to the second prerequisite, courts have almost invariably held that action or inaction by the EEOC should not prejudice the right of an individual to a judicial determination of the merits of his claim of discrimination. McDonnell Douglas Corp. v. Green, supra, 411 U.S. at 799, Fekete v. U. S. Steel Corp., 424 F.2d 331 (3d Cir. 1970). Because the issuance of the right to sue letter is a ministerial act required both by the statute⁷ and applicable regulations⁸ and not one involving the exercise of discretion by the Commission, many federal courts have likewise held that the issuance of such a letter after the commencement of suit under Title VII cures the jurisdictional defect in the original complaint. Henderson v. Eastern Freight Ways, Inc., 460 F.2d 258, 260 (4th Cir. 1972); Dodge v. Giant Food, Inc., 3 EPD ¶ 8184 (D.D. C.1971); Stebbins v. Insurance Company of North America, 3 EPD ¶ 8168 (D.D.C.1970); Brush v. San Francisco Newspaper Printing Co., 315 F.Supp. 577 (N.D.Cal.1970). This conclusion is consistent with the fundamental principle in Title VII cases that procedural niceties should not be used as a wall to bar a claimant from a judicial hearing on the merits, particularly when he has complied in every respect with his obligations under the statute. In the instant case, Jones made not one, but several timely requests to the District Office for issuance of the letter; the responsibility for the delay lies exclusively with the EEOC. To deny Jones his day

383 F. Supp. 425

in court under the circumstances of this case would violate even the most rudimentary concepts of fair play. Shaffield v. Northrop Aircraft Services, 373 F.Supp. 937, 940 (M.D.Ala.1974)

We are at a loss to understand why defendants even advanced the second argument, one superficially fraught with subtlety, but actually permeated with error, factually and legally. In essence, their contention runs as follows: The statute, and applicable regulations, require that the Commission notify the aggrieved person of his right to sue. In the present case, however, Jones received his right to sue letter from the Acting District Director of the Philadelphia District Office of the EEOC. Defendants admit that such a ministerial act can properly be delegated by the EEOC to its agents, but they note that one court has determined that the delegation to the District Director may have violated certain provisions of the Freedom of Information Act, 5 U.S.C. § 552, in that the "administrative staff manual" which contained the delegation directive was marked "Administratively Restricted". McDonald v. General Mills, Inc., 7 FEP Cases 66 (E.D.Cal.1974). Since the authority to issue right to sue letters may have been improperly delegated, defendants tell us, any right to sue letter issued by a District Director is invalid, and therefore cannot satisfy the statutory requirement which is a prerequisite to suit in the federal courts.

Even on their chosen procedural ground defendants must meet defeat, because they have conveniently ignored corrective regulations subsequently promulgated by EEOC. As the Court pointed out in Shaffield v. Northrop Aircraft Services, supra, 7 FEP Cases at 466, the EEOC issued a new manual on May 21, 1973, which contained none of the objectionable features of the manual considered by the Court in McDonald. The new manual, however, failed to include a delegation to District Directors of the power to issue right to sue letters; this inadvertent omission was corrected by an amendment which became effective on November 28, 1973. Since the right to sue letter in the instant case was issued by the Acting District Director on January 3, 1974, it is clearly valid even under the holding in McDonald. Further, it is clear that even if the letter from the Acting District Director was invalid, the jurisdictional defect could be cured by the issuance of a new and valid right to sue letter. Henderson v. Eastern Freight Ways, Inc., supra, and cases cited.

By enacting Title VII, Congress did not intend to forge tools designed to barricade the doors of our federal...