Kelly v. Richland School Dist. 2

• Decision Date: 21 July 1978
• Docket Number: Civ. A. No. 78-150.
• Citation: 463 F. Supp. 216
• Court: U.S. District Court — District of South Carolina
• Parties: Joe E. KELLY, Plaintiff, v. RICHLAND SCHOOL DISTRICT 2, a Body Politic and Corporate, and Dr. H. E. Corley, Administrative Superintendent of School District 2, in his official capacity and personally, and the following named persons who are members of the Board of Trustees of Richland School District 2, each of them being made Defendants in his respective official capacity as Board Members and personally, Mr. Leon A. Cooper, Jr., Mr. David A. Rascher, Mr. Brooks Brown, III, Mrs. W. E. Helms, Jr., and Mr. Frank L. Estep, Defendants.

463 F. Supp. 216

Joe E. KELLY, Plaintiff, v. RICHLAND SCHOOL DISTRICT 2, a Body Politic and Corporate, and Dr. H. E. Corley, Administrative Superintendent of School District 2, in his official capacity and personally, and the following named persons who are members of the Board of Trustees of Richland School District 2, each of them being made Defendants in his respective official capacity as Board Members and personally, Mr. Leon A. Cooper, Jr., Mr. David A. Rascher, Mr. Brooks Brown, III, Mrs. W. E. Helms, Jr., and Mr. Frank L. Estep, Defendants.

Civ. A. No. 78-150.

United States District Court, D. South Carolina, Columbia Division.

July 21, 1978.

T. Travis Medlock, of Medlock & Davis, Columbia, S. C., for plaintiff.

Bruce E. Davis, Camden, S. C., for defendants.

ORDER ON DEFENDANTS' MOTION TO DISMISS AND/OR STRIKE

HEMPHILL, District Judge.

This is an action for declaratory, injunctive relief and back pay award on behalf of plaintiff, a black male Assistant Principal, who was allegedly denied promotion to the position of Principal in Richland School District 2. Plaintiff contends the denial of promotion was discriminatory in nature because of his race. He seeks relief under 42 U.S.C. § 2000e, et seq. (Title VII) and § 1983¹, basing jurisdiction for his respective claims on 42 U.S.C. § 2000e-5(f)² and 28 U.S.C. § 1343(3) and (4)³.

Plaintiff is holder of an "A" professional teaching certificate from the State of South Carolina, a B. S. degree from Benedict College, and a Master of Science degree from Duke University. He alleges that several openings for Principalship positions had become open during the past several years in District 2, all of which were denied him and thereafter filled with less experienced and qualified white individuals. The matter is now before the court on various motions to dismiss and/or strike by various defendants. The court will address the motions directed to the Title VII claims and the § 1983 claims separately.

TITLE VII CLAIMS

The first ground for dismissal urged by all defendants is that in disputes such as the present one where a governmental agency is involved, and where conciliation attempts by the Equal Employment Opportunity Commission (EEOC) have failed, the case is mandatorily referred to the Attorney General of the United States who has the option of bringing a civil suit against the alleged violator-employer, and who must, if he chooses not to bring a civil action, notify the aggrieved party of his right to sue the alleged violator within ninety (90) days of receipt of notice. Paragraph # 12 of plaintiff's complaint alleges that plaintiff's right to sue letter was issued by the EEOC and not the Attorney General in accordance with the statute. See 42 U.S.C. § 2000e-5(f), supra.

In response to defendants' contention, plaintiff represents that the right to sue letter was in fact issued by the Attorney General and that the allegation in Paragraph # 12 is a pleading error. Plaintiff requests the court's permission to amend the complaint to cure the defect. Such court action is unnecessary. Since a motion to dismiss is not a responsive pleading under the Federal Rules of Civil Procedure, plaintiff has the right to amend his complaint as of course. Smith v. Blackledge, 451 F.2d 1201 (4th Cir. 1971); Fed.R. Civ.P. 15(a).

Defendants' motion to dismiss on the above basis is therefore denied.

The second ground for dismissal of the Title VII claims concerns defendants Corley, the Board of Trustees of Richland County School District 2, and the Members of the Board individually. The basis of defendants' motions is that they were unnamed in the original charge filed by plaintiff with the EEOC, a jurisdictional prerequisite to a civil suit against them.

Defendant Corley maintains that the charge filed with the EEOC charged him as Superintendent of District 2 and not personally, and as such the personal claim against him should be dismissed. The argument is without merit. In a Title VII action the determination to be made is whether or not the person complained of is an "employer" within the meaning of the statute. Section 2000e(b) defines an employer as "a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks . . . and any agent of such a person." (Emphasis added.) Section 2000e(a), as amended, includes government, governmental agencies, and political subdivisions as persons for Title VII purposes. As such, if the School District is an employer under the Act, (and this is not disputed) Corley, if he is an agent of the District, is also an employer and can be held accountable for its violation. As one court has written:

Whether such consideration took place as a private person or as an officer is of no import here. Title VII actions do not contain "under color of state law" problems associated with Section 1983 actions. If the person against whom the complaint is filed is within the definition of "employer," his "capacity" during the alleged discriminatory events is irrelevant, so long as the alleged discrimination relates to employment. . . . Hanshaw v. Delaware Technical & Community College, 405 F.Supp. 292 (D.Del.1975), at p. 296 n. 10.

As such the motion to dismiss the Title VII claim against Corley is denied.

The problem created by failure to charge the Board of Trustees of District 2 and its individual members is not as easily reconcilable.

It has been generally held that a person not named in the charge lodged with the EEOC cannot be sued in a civil action based on the activity alleged in the charge. Mickel v. South Carolina State Employment Service, 377 F.2d 239 (4th Cir. 1967). The requirement is said to be jurisdictional in nature, Id., the reason being, the charge serves to notify the person charged with the alleged violation and brings him before the EEOC, making possible effectuation of the Act's primary goal, securing voluntary compliance with the Act. Bowe v. Colgate-Palmolive Company, 416 F.2d 711 (7th Cir. 1969). To by-pass the requirement would therefore directly contradict the purpose of the Act.

With the two-fold purposes of the EEOC charge filing in mind, the courts have recognized certain exceptions to the rule that parties not named in the EEOC charge are not amenable to the suit in a civil action. As stated in Curran v. Portland Super. Sch. Committee, Etc., 435 F.Supp. 1063 (D.Me. 1977):

This rule is less than absolute, however, and several exceptions have been recognized as sufficient to confer jurisdiction over defendants in a civil action who were not named in the EEOC charges. These exceptions are: (1) if there was "substantial identity" between the respondent named in the EEOC charges and defendants in the civil action; (2) if the named respondent acted as the "agent" of the defendant sought to be included in the civil action, at least when the latter defendant had notice of and participated in the conciliation proceedings; and (3) if the defendant is an "indispensable party" under Fed.R.Civ.P. 19 in order to accord complete relief to the parties. (Citations omitted). 435 F.Supp. at 1074.

Plaintiff asserts that the facts in the instant case fit within the first and third exceptions, substantial identity of parties and indispensible party.

The cases which have applied these exceptions have done so only where the purpose of the EEOC filings, notice to the alleged violator and opportunity for voluntary compliance through conciliation efforts, have been effectuated with respect to the unnamed defendants. In Stevenson v. International Paper Co., 432 F.Supp. 390 (W.D.La.1977) the court commenting on the problem confronting this court noted:

Clearly, the primary purpose of the administrative procedure is to obtain voluntary compliance within an overall policy to secure equal employment opportunities. If a Court cannot pursue the overall policy of equal employment without the joinder of a party not a respondent in the E.E.O.C. charge, or when strict construction of the § 706 procedure would prevent effective enforcement of the Act, the Court should excuse technical noncompliance and exercise jurisdiction over the faulty claim, especially when the complainant prepared the E.E.O.C. charge without the assistance of counsel. Moreover, if a party has a close legal relationship with a named respondent and has actual notice of the E.E.O.C. charge, to the extent that he could have participated in conciliation efforts, he should not be heard to cry "foul" when later made a defendant in the suit. . . . (Emphasis added.) 432 F.Supp. 397-8.

In Chastang v. Flynn and Emrich Company, 365 F.Supp. 957 (D.N.Y.1973), the court permitted members of a Profit Sharing Trust Committee not named in the EEOC charge to be included as defendants in the civil action on substantial-identity-of-parties grounds. In denying the individual members' motion for directed verdict, the court, after reserving ruling on the same until the end of the full trial on the merits, reasoned that the members of the Trust Committee were the persons charged with responsibility of administering the discriminatory retirement plan and were required to consent to any amendment to the plan which would render it non-discriminatory. The court implicitly ruled that since the charge requirement effectuated the Act's purpose of providing an opportunity for the EEOC and parties charged to effectuate voluntary compliance, and since the members of the Trust Committee administered and had the power to effectuate a change in the Plan, any attempt at conciliation made by the EEOC would have focused in whole or in part on the individual, member defendants. Thus, the court concluded the purpose of the Act had been accomplished. At page 964 the court stated:

In a situation such as this where there is a substantial, if not complete, identity of parties before the EEOC and the court, it would require an unnecessarily

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