Kohne v. Imco Container Co.

Decision Date12 June 1979
Docket NumberCiv. A. No. 74-110(H).
Citation480 F. Supp. 1015
PartiesArvella W. KOHNE et al., Individually and on behalf of all others similarly situated, Plaintiffs, v. IMCO CONTAINER COMPANY, Defendant.
CourtU.S. District Court — Western District of Virginia

Richard T. Seymour, Lawyers' Committee for Civil Rights Under Law, Washington, D. C., Jay J. Levit, John B. Mann, Richmond, Va., for plaintiffs.

Thomas J. Manley, Hunton, Williams, Gay & Gibson, Francis V. Lowden, III, Richmond, Va., for defendant.


TURK, Chief Judge.

This is an action against IMCO Container Company, a division of Ethyl Development Corporation, by twelve hourly paid female employees, past and present, of its plant in Harrisonburg, Virginia, seeking individual and class relief for alleged sexual discrimination in employment under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. On February 2, 1972, several of the named plaintiffs to this suit and a number of other female employees filed a charge of discrimination with the Equal Employment Opportunity Commission. Subsequently, that charge was joined in and supplemented by other female employees including the remaining named plaintiffs. The combined charges allege pervasive sex based employment discrimination by IMCO. On November 12, 1973, the E.E. O.C. notified the charging parties of their right to sue, and this action was commenced on December 13, 1973. Plaintiffs maintain that the defendant discriminated against them in particular and females in general by compensating women at a lesser rate of pay than men for substantially equivalent work, by assigning women to less desirable or lesser paying jobs, by permitting women less relief or break time and pay, shift preferences, and other employment benefits and opportunities, including the opportunity to work overtime, and by applying more onerous work and disciplinary standards to women than to men. The court tentatively defined the class as "all women employed in production jobs at IMCO Container Company's Harrisonburg plant at any time after February 2, 1970." Trial began on October 14, 1975, and concluded on November 8, 1975, with the record being reopened on July 12, 1976, for the receipt of additional evidence.


As previously stated, the court tentatively defined the class as all women employed in production jobs at IMCO Container Company's Harrisonburg plant at any time after February 2, 1970. The court now finds the proper class for certification to be all women employed in production jobs at the plant at any time after August 6, 1971.1 The August 6, 1971 date is the 180th day from February 2, 1972, the date on which a charge was filed with the Equal Employment Opportunity Commission. On the date the charge was filed with the Commission, the limitation period was 90 days. Congress, however, amended the 90-day limitation period to 180 days, Equal Employment Opportunity Act of 1972, Pub.L. 92-261, § 4, 86 Stat. 103 (amending 42 U.S.C. § 2000e-5(e)), and this amendment became effective on March 24, 1972. Section 14 of the amending act provides that the amendments are to "be applicable with respect to charges pending with the Commission on the date of their enactment . . .." In considering the amendments the Supreme Court held in International Union of Electrical Workers, Local 790 v. Robbins & Myers, Inc., 429 U.S. 229, 243, 97 S.Ct. 441, 450, 50 L.Ed.2d 427 (1976) that "Congress intended the 180-day period to be applicable to charges such as that filed by plaintiff, where the charge was filed with the EEOC prior to March 24, 1972, and alleged a discriminatory occurrence within 180 days of the enactment of the Act." As the present charges were pending with the Commission on March 24, 1972, and as those charges alleged a discriminatory occurrence within 180 days of that date, it is clear that the amendments are applicable. Wood v. Southwestern Bell Telephone Co., 580 F.2d 339 (8th Cir. 1978). It is equally clear that irrespective of the continuing nature of the employer's violations, a severing of the employment relationship terminates the discrimination against the severed employee and that employee must, accordingly, file a charge of discrimination with the Commission within 180 days from the date the employment relationship terminated. Consequently, the class cannot properly include persons who were last employed by the defendant more than 180 days from the date the charge was filed with the Commission. Laffey v. Northeast Airlines, Inc., 185 U.S.App.D.C. 322, 366, 567 F.2d 429, 473 (D.C.Cir.1976), cert. denied, 434 U.S. 1086, 98 S.Ct. 1281, 55 L.Ed.2d 792 (1978); Wetzel v. Liberty Mutual Insurance Co., 508 F.2d 239, 246 (3d Cir. 1975); Lazarus v. Maryland, 79 F.R.D. 633 (D.Md.1978). See generally, United Air Lines, Inc. v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977); King v. Seaboard Coast Line Railroad Co., 538 F.2d 581, 583, n.5 (4th Cir. 1976).


The court previously ordered the trial bifurcated and ordered the trial of "all issues of defendant's liability to individuals included in the class, including any claims of job assignment or promotion denial . . .," at the first or "liability stage" of trial. Consistent with that order prospective class members were notified that if they did not request exclusion from the class their claims for monetary relief would be precluded unless a claim form was filed. In turn, class members were correctly notified by counsel that if they had a job assignment or promotion claim, according to the court's order, they would be required to testify or the claim would be barred. The court is now satisfied, however, that it would be improper to exclude for back-pay purposes those individuals not offering testimony at the "liability stage" of trial. Federal Rule of Civil Procedure 23(c)(2)(B) provides that a judgment in a 23(b)(3) action "will include all members who do not request exclusion." It is, therefore, the clear thrust of the rule to require no affirmative action by class members for inclusion within the class. Consequently, requiring class members to "opt in" at the first or "liability stage" of trial was contrary to the spirit of Rule 23(b)(3). Robinson v. Union Carbide Corp., 544 F.2d 1258 (5th Cir. 1977), modifying 538 F.2d 652 (1976), cert. denied, 434 U.S. 822, 98 S.Ct. 65, 54 L.Ed.2d 78 (1977). Accordingly, the court will allow back-pay recovery by individual class members irrespective of whether they filed claim forms prior to or testified at the liability stage of trial so long as entitlement is established at the "back pay" stage of trial.

The parties' respective burdens, when liability to the class is established, governing the manner in which the court will proceed, were described by the court of appeals in Sledge v. J. P. Stevens & Co., Inc., 585 F.2d 625 (4th Cir. 1978):

Ordinarily, once it is shown at the first, or "liability" stage of a bifurcated class action, as it was here, that an employer has engaged in a pattern of illegal discrimination against Negroes by disproportionately denying them employment and assigning those who are hired to lower-paying jobs than whites, it is then presumed that individual hiring or job assignment decisions were infected by discrimination and that victims of those decisions are entitled to make-whole awards. All an individual plaintiff must then establish at the second or "back pay" stage of trial is (a) his identity as one of the presumed discriminatees—that he is black and that during the period in controversy he applied for employment and was not hired, or upon being hired was assigned to one of the low-paying jobs, and (b) any information requested of him to assist the court in determining the amount of the economic loss he suffered as a result. The burden then shifts to the employer to demonstrate by a preponderance of the evidence, if it can, that factors other than the condemned discrimination caused the decision of which the particular back pay claimant complains, e. g., that with respect to the unsuccessful applicant there were no job openings or at least none for which he was qualified, or that with respect to the employee assigned to undesirable work no better jobs were vacant or at least none for which he was qualified. If this burden is met compensation may be denied unless the claimant can show that the exculpatory reason advanced by the employer is mere pretense—that, for example, white persons with qualifications identical to those of the claimant or who also did not meet the prescribed qualifications were nonetheless assigned to the position sought.

Id., at 637.


In United Airlines, Inc. v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977), the plaintiff, a female, was forced to resign in 1968 due to a company rule forbidding stewardesses to marry. The rule was subsequently rescinded, and in 1972 plaintiff was rehired but given no seniority credit for her earlier service because defendant's seniority system recognized only uninterrupted employment. Approximately one year from the date she was rehired plaintiff filed a charge with the E.E.O.C. maintaining that her low seniority rank constituted a "continuing violation" of Title VII. Finding her charge of discrimination to have been untimely filed the Supreme Court reasoned that while United's seniority system gave present effect to a past act of discrimination, it was entitled to treat that past act as lawful after plaintiff failed to file a charge of discrimination within the 90 days then allowed by § 706(d) of the Civil Rights Act of 1964. The court stated that "a discriminatory act which is not made the basis for a timely charge is the legal equivalent of a discriminatory act which occurred before the statute was passed," constituting only "relevant background evidence in a proceeding in which the status of a...

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