Logan v. General Fireproofing Company

• Decision Date: 27 August 1969
• Docket Number: Civ. A. No. 3050.
• Citation: 309 F. Supp. 1096
• Court: U.S. District Court — Western District of North Carolina
• Parties: Nettie Mae LOGAN, Plaintiff, v. GENERAL FIREPROOFING COMPANY, a corporation, Defendant.

309 F. Supp. 1096

Nettie Mae LOGAN, Plaintiff, v. GENERAL FIREPROOFING COMPANY, a corporation, Defendant.

Civ. A. No. 3050.

United States District Court, W. D. North Carolina, Shelby Division.

August 27, 1969.

Conrad O. Pearson, Durham, N. C., J. Levonne Chambers and Adam Stein, of Chambers, Stein, Ferguson & Lanning, Charlotte, N. C., Jack Greenberg, New York City, David R. Cashdan for Equal Employment Opportunity Commission, Washington, D. C., for plaintiff.

Glenn L. Greene, Jr., of Fowler, White, Collins, Gillen, Humkey & Trenam, Miami, Fla., J. Toliver Davis, Forest City, N. C., for defendant.

MEMORANDUM OF DECISION

WOODROW WILSON JONES, Chief Judge.

This is a civil action brought by the plaintiff, Nettie Mae Logan, against the defendant, General Fireproofing Company, alleging that she was denied employment on account of her race and sex. Her complaint filed under Section 706(e) of Title VII of the Civil Rights Act of 1964, 42 U.S.C.A., Section 2000e-5(e), alleges that she applied for work with the defendant company on December 27, 1965, and was advised that there were no jobs available, and that within a few days thereafter the defendant published a newspaper notice seeking trainees for employment. She further alleges that she continued to seek employment with the defendant until June, 1966, without success, and that white individuals were employed after her application was denied. On June 27, 1966, she filed a charge with the Equal Employment Opportunity Commission contending that she had not been hired because of her race. On June 27, 1967, the Commission found reasonable cause to believe that the defendant had committed a violation of the Act, and on February 17, 1969, the plaintiff was advised that conciliatory efforts had failed to accomplish voluntary compliance with Title VII of the Civil Rights Act of 1964, and that she was entitled to institute a civil action in the appropriate federal District Court within thirty days of receipt of said letter. This action was filed on March 18, 1969, and plaintiff seeks to represent not only herself but also all future applicants for employment, all present employees, and all future employees of General Fireproofing Company. She alleges that the defendant is now engaged in the following discriminatory practices:

1. Discriminating against Negro applicants for employment on the grounds of race or color.

2. Limiting Negroes to lower paying jobs.

3. Paying Negroes lower wages than whites for the same work, and

4. Failing to post Equal Employment Opportunity Commission posters in its plant.

She prays that she and the class she represents be granted a permanent injunction enjoining the defendant from continuing such discriminatory policies and that a declaratory judgment be entered adjudging that said policies, practices, customs and usages complained of here are violative of the rights of the plaintiff and her class protected by Title VII of the Civil Rights Act of 1964, and 42 U.S.C.A., § 1981. She further contends that the defendant should be required to give her the job she applied for and pay all back wages to which she is entitled, and that she be awarded costs and attorneys fees.

The defendant filed a Motion to Dismiss and in the alternate, a Motion for More Definite Statement. These motions were heard by the Court on July 7, 1969, and the attorneys have filed their brief. After serious consideration of the arguments and the briefs, the Court enters this Memorandum of Decision and Order.

The Motion to Dismiss is based upon the general allegation that the complaint fails to state a claim against the defendant upon which relief can be granted. The motion raises several specific reasons why the action should be dismissed and the Court will list these reasons and pass upon them separately.

The first specific reason given is that the plaintiff does not sufficiently allege in the complaint that she filed the charge with the Equal Employment Opportunity Commission within ninety (90) days after the alleged unlawful employment practice occurred as required by Title 42 U.S.C.A. § 2000e-5 (d). This section of the Act requires that it must be filed with the Commission within ninety (90) days of the occurrence of the alleged unlawful employment practice. Plaintiff alleges that she filed written application for employment with the defendant on December 27, 1965, and filed her charge with the Commission on June 27, 1966, which is more than ninety (90) days. However, she alleges that she returned to renew her application on several occasions and continued to do so through June, 1966, without success, but gives no specific date. This allegation, though it be indefinite, is sufficient to allege that the charge was filed within ninety (90) days from the alleged unlawful employment practice. The Court therefore holds that this allegation is sufficient to weather the storm of the Motion to Dismiss but the Motion to Make More Definite and Certain will be allowed and plaintiff will be required to allege specifically the last date she applied for work prior to the filing of her charge with the Commission.

The next specific reason set forth in the Motion to Dismiss is that plaintiff has not alleged the Equal Employment Opportunity Commission furnished the defendant with a copy of any charge filed with the Commission within thirty (30) days of the filing, as required by 42 U.S.C.A. § 2000e-5(a). This section of the Act provides that, "The Commission shall furnish such employer * * * with a copy of such charge and shall * * *" but this Court can find no requirement in the statute that it must be done within thirty (30) days. Fair and just procedure would require that a copy of the charge be served on the defendant within thirty (30) days or less, but there seems to be no statutory requirement of such timely service. The defendant relies upon the case of International Brotherhood of Electric Workers, etc., v. United States Equal Employment Opportunity Commission, 283 F.Supp. 769 (W.D.Pa.1967), which held that the Commission was without authority to proceed to investigate a charge if the charge had not been served upon the defendant. However, this decision was reversed by the Third Circuit Court. See opinion in 398 F.2d 248, wherein the court said, "It must be borne in mind that the prime duty of the EEOC is to investigate and conciliate. We perceive no time limitation imposed by the Equal Employment Opportunities Act or the regulations of the EEOC by which a charge must be served and proceeded with by the Commission." This Court is of the opinion, and therefore holds, that the service of the charge upon the defendant is not a jurisdictional prerequisite to the institution of an action under the Act.

The next specific reason advanced by the defendant for dismissal is that the complaint does not allege that the Equal Employment Opportunity Commission in fact endeavored to eliminate any alleged unlawful employment practice by informal methods as required by 42 U.S.C.A. § 2000e-5(a). The Act specifically requires the Commission to attempt conciliation after investigation and determination that there is reasonable cause to believe that the charge is true. The pertinent part of Section 2000e-5(a) provides that, "The Commission shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion." This is a mandate from the Congress and the Commission is legally bound to make the effort. The Commission's rules now require that the effort be made. However, the Fourth Circuit Court specifically held in the case of Johnson v. Seaboard Air Line Railroad Company, 405 F.2d 645 (4th Cir. 1968); certiorari denied, Pilot Freight Carriers v. Walker, 394 U.S. 918, 89 S.Ct. 1189, 22 L.Ed.2d 451 (1969) that actual attempts to conciliate by the Commission are not jurisdictional prerequisites to the institution of suit. The complaint alleges that the plaintiff was advised by the Commission on February 17, 1969, that conciliation efforts had failed to accomplish voluntary compliance and that she was entitled to institute civil...