King v. Georgia Power Company

Decision Date09 August 1968
Docket NumberCiv. A. No. 11723.
PartiesCharles KING, Paul Brown, Sammie Lee Davenport, Ed Dulaney, and Rufus Mitchell v. GEORGIA POWER COMPANY and Local 84, International Brotherhood of Electrical Workers.
CourtU.S. District Court — Northern District of Georgia


Isabel Gates Webster, Atlanta, Ga., Robert L. Carter and Robert F. Van Leirop, New York City, for plaintiffs.

William B. Paul, Constangy & Prowell, Atlanta, Ga., for Georgia Power Co.

Robert L. Mitchell, Bullock, Yancy & Mitchell, Atlanta, Ga., for Local 84, IBEW.


SIDNEY O. SMITH, Jr., Chief Judge.

This is a class action pursuant to 28 U.S.C. § 1343 wherein plaintiffs, employees of Georgia Power and members of Local 84, seek injunctive relief and damages under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et. seq. The factual basis for plaintiffs claim of discrimination is allegedly as follows: (1) Plaintiffs are classified by Georgia Power out of the line of progression in all departments, restricting them to labor posts so as to limit their promotional opportunities. (2) Georgia Power administers tests and utilizes other promotion criteria which are not job-related and which are biased against Negroes. (3) Georgia Power maintains segregated comfort facilities. (4) Defendant, Local 84, contracts with Georgia Power for the maintenance of a promotion system that tends to limit the promotional opportunities of Negro laborers and further, Local 84 fails to fairly represent Negro employees. The named plaintiffs filed complaints with the EEOC on April 18, 1966, and June 6, 1966. Service of the charge upon defendants was made on June 20, 1966. On March 3, 1967, the EEOC found reasonable cause to believe that violations of the Act by defendants had occurred. On March 13, 1968, a suit letter was sent to each of the named plaintiffs informing them of their rights to file civil suits. The complaint in the instant case was filed on April 12, 1968.

Defendants have both filed motions to dismiss and/or strike on a number of different grounds. Their separate positions can be summarized as follows.

Georgia Power contends that this action should be dismissed because:

(1) the complaint was not filed within the time required by law, i. e., 90 days after the charge is filed with EEOC, and there is no allegation that the complaint was filed with EEOC within 90 days of the alleged unfair employment practices; (2) there is no allegation that a sworn charge was filed with EEOC; (3) the unlawful employment practices alleged in the complaint are not shown to be embraced within the scope of the prior charge before EEOC, i. e., defendant need not defend on matters outside the charges brought before EEOC; (4) this action may not be maintained as a class action. Finally, Georgia Power moves to strike Exhibit A, which is a copy of the decision of EEOC that reasonable cause existed to believe that Georgia Power had violated Title VII of the Civil Rights Act of 1964.

Defendant Local 84 makes its motion on the above grounds as well as the following:

(1) the complaint fails to set forth a claim against this defendant for the sole basis for such relief would arise out of an alleged contract negotiated by the Union and no copy of such contract is attached to the complaint; (2) the maintenance of a class action under these facts would deprive defendant of due process; (3) plaintiffs have failed to exhaust their contractual remedies; (4) injunctive relief is forbidden by Norris-LaGuardia.

The Equal Employment Opportunity Commission applied for and is hereby granted leave to file its briefs as amicus curiae on the questions raised by defendants' motions to dismiss.


The Court can not agree with defendants' position as to the time periods for bringing actions under this Title. While a very small number of courts have agreed with defendants' position, see, e. g., Miller v. International Paper Co., 290 F.Supp. 401 (Nov. 9, 1967, S.D.Miss.) (this decision by Judge Cox is now before the 5th Circuit, Case No. 25,616); Cunningham v. Litton Industries, 56 L C § 9078 (September, 1967, C.D.Calif.), the weight of authority is that the 60-day period, for the investigatory and conciliatory functions of the Commission, is to be accorded a directory rather than a mandatory construction and therefore the crucial requirement is that the civil suit be brought within 30 days of receipt of the suit letter. See, e. g., Mondy v. Crown Zellerbach Corp., 271 F.Supp. 258 (E.D.La.1967); Dent v. St. Louis-San Francisco Ry. Co., 265 F.Supp. 56 (N.D. Ala.1967). The failure to allege that the complaint was filed with the EEOC within 90 days of the alleged unfair employment practices is of no importance, for the violations of Title VII alleged in the complaint may be construed as "continuing" acts. If the proof on this matter should show that the violations were not continuing and that the 90 day requirement had not been met, then the motion to dismiss on this ground may be renewed.


Relying upon the recent case of Choate v. Caterpillar Tractor Co., 274 F.Supp. 776 (S.D.Ill.1967), Georgia Power contends that an allegation that the charge before the EEOC was made under oath is a condition precedent to the maintenance of a civil action of this nature. For a number of reasons hereinafter stated, this Court can not accept this position. There could be serious doubt as to whether the "under oath" requisite of 42 U.S.C. § 2000e-5(a) imposes any pleading obligations on plaintiffs in a subsequent court proceeding. Unlike the "90-day" and "30-day" time requirements which are recognized as jurisdictional, the verification requirement is merely one of the technical features of pleading before the EEOC.1 This is in keeping with the general rule that verification of pleadings is not jurisdictional in nature and that this defect can be cured by later verification. See Johnston Broadcasting Co. v. FCC, 85 U.S.App.D.C. 40, 175 F.2d 351 (1949). At the very least plaintiffs should be afforded an opportunity to amend the complaint to allege that the original charge before the EEOC was made under oath.


Defendant, Georgia Power, contends, without citation of authority, that it cannot be required in this proceeding to defend against any charges different from or beyond the scope of the charge filed with EEOC. Georgia Power further takes the position that this complaint is insufficient absent such allegations as would allow defendant and the court to determine whether the charges asserted herein are different from, or beyond the scope of, those contained in the administrative charge. Plaintiffs would take the position that the charges are substantially identical, relying upon a comparison of the complaint and Exhibit A. EEOC would view this issue from a different perspective and contend that the allegations contained in the complaint of this suit may encompass any kind of discrimination like or related to allegations contained in the charge and growing out of such allegation during the pendency of the case before the Commission. With the limitation herein expressed, the Court must agree with the position of the EEOC. Any other result would be destructive of the beneficent ends of this legislation. It appears that a large number of the charges with EEOC are filed by ordinary people unschooled in the technicalities of the law. As stated in the brief filed by EEOC: "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 describe the discriminatory practices to which they are subjected." See United States v. Mayton, 335 F.2d 153 at 161 (5th Cir. 1964) (same problem in a similar context).

The correct rule is that the complaint in the civil action is confined to those issues the original complaint has standing to raise, but may properly encompass any such discrimination like or reasonably related to the allegations of the charge and growing out of such allegations during the pendency of the case before the Commission.2

This rule, broadly speaking, in effect limits the civil action to that range of issues that would have been the subject matter of the conciliation efforts between EEOC and the employer. If the civil action were not so limited, then the primary emphasis of this Title would be circumvented, i. e., an emphasis upon voluntary settlement of all issues without an action in the District Court. Therefore, it must be emphasized that this Court's holding as to the scope of this action is not based on analogies to NLRB proceedings nor to any deference to the expertise of the Commission but is based on the inherent logic of the stated rule within the statutory scheme heretofore described. As to whether the complaint in the instant case falls within the scope of the issues finally framed by the EEOC, this is question that must await the trial of this case. Georgia Power has given no indication as to how this action in fact goes beyond permissible bounds. Lacking such proof, the Court will not now further consider this question. It should be emphasized that the EEOC is not free to manipulate the scope of a case beyond the bounds herein expressed. The expansion of a particular charge is limited to the issues that a particular complainant has standing to raise, as become evident from the Court's discussion of the class aspects of this case. As an example of such limitation see Colbert v. H-K Corporation, Inc., No. 11599, N.D.Ga. August, 1968.


Unquestionably, class actions are...

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