Lowry v. WHITAKER CABLE CORPORATION

Decision Date24 April 1972
Docket NumberCiv. A. No. 18015-3.
Citation348 F. Supp. 202
PartiesMabel L. LOWRY, Plaintiff, v. WHITAKER CABLE CORPORATION, Defendant.
CourtU.S. District Court — Western District of Missouri

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

James W. Jeans, William H. Pickett, Kansas City, Mo., for plaintiff.

Jack L. Whitacre, Spencer, Fane, Britt & Browne, Kansas City, Mo., Russell Specter, Deputy Gen. Counsel, EEOC, Washington, D. C., for defendant.

FINDINGS OF FACT, CONCLUSIONS OF LAW, JUDGMENT

WILLIAM H. BECKER, Chief Judge.

This is an action under the Equal Employment Opportunity Act, Section 2000e-5 of Title 42, United States Code, in which the plaintiff alleges that she was subjected to discriminatory working conditions by defendant and was dismissed from her employment by defendant solely because of her race. Plaintiff also alleges that she has completed all the procedures requisite to the jurisdiction of this Court in the Missouri Commission for Human Rights and in the Equal Employment Opportunity Commission. Concerning compliance with the administrative procedures outlined in Section 2000e-5, supra, plaintiff alleged in her original complaint that the last act of discrimination against her occurred on August 28, 1967, when she was dismissed from employment, allegedly because of her race; that she "filed a charge of such violations with the Equal Opportunity Commission on January 2, 1968"; that "the Commission filed its final investigation report on February 13, 1969"; that "a decision of said Commission was rendered on October 15, 1969" (copy of which is attached to the original complaint herein and incorporated herein by reference); that "an effort to conciliate with Defendant was unsuccessful"; that "a notice of right to sue within thirty days was sent to the Plaintiff by said Commission on December 23, 1969"; and that "this civil action is now being brought against the Defendant, all of said procedures being in compliance with Title 42 USCA Section 2000e-5."

The Jurisdictional Questions

In the "decision" of the national Commission which is attached to the original complaint, the following remarks are made with respect to jurisdiction. "The Commission received the charge on September 7, 1967, and deferred it to the appropriate State agency on September 11, 1967. The Commission filed the charge and assumed jurisdiction on November 10, 1967, within the time limitations prescribed by Title VII." Similar statements of jurisdiction were made in the Stipulation of Uncontroverted Facts and Standard Pretrial Order No. 2, with no material differences. It therefore did not conclusively appear that plaintiff had filed a charge with the national Commission "within two hundred and ten days after the alleged unlawful employment practice occurred, or within thirty days after receiving notice that the State or local agency has terminated the proceedings under the State or local law, whichever is earlier," as required by Section 2000e-5(d), Title 42, U.S.C.1 Therefore, under the obligation of the Court to examine on its own motion the question of jurisdiction (Treinies v. Sunshine Mining Co., 308 U.S. 66, 60 S.Ct. 44, 84 L.Ed. 85, reh. den. 309 U.S. 693, 60 S.Ct. 464, 84 L.Ed. 1034), a show cause order was entered on September 4, 1970, directing plaintiff to show cause within 10 days why this action should not be dismissed "by stating if and when she received written or actual notice of the termination of the proceedings of the state agency and by stating, if she has received no such notice, whether her case is still pending before the state agency, or whether the state agency ever initiated any processing of it." Plaintiff's original response, filed on September 14, 1970, stated in part:

"In the handling of this charge, it was initially received by the Equal Employment Opportunity Commission in September of 1967, and was deferred to the Missouri Commission on Human Rights on September 11th, 1967 . . . The first notification received by Mabel L. Lowry that the deferral period to the State had expired was by letter from the Equal Employment Opportunity Commission dated December 18th, 1967." (Emphasis added.)

Plaintiff, however, did not state any notice which she might have received of the termination of the state proceedings, which, under most circumstances, would be a different date than the date marking the expiration of the deferral period. Nor did she specifically disclaim having received such a notice. Therefore, under the response made, it was conceivable that the State proceedings might have terminated more than 30 days prior to January 2, 1968, and plaintiff might have received notice of such termination more than 30 days prior to January 2, 1968. Plaintiff was therefore directed to file a supplemental response making allegations which were responsive to the original show cause order. In response, plaintiff stated that she was notified of the termination of State proceedings by a letter from the Missouri Commission on Human Rights dated December 31, 1968. The additional allegations of the successive responses were then incorporated into an amended complaint filed by plaintiff as directed by the Court on October 19, 1970. In the answer to the amended complaint, defendant admitted the above facts essential to the jurisdiction of this Court. Even, therefore, assuming that the filing of a charge by the national Commission with itself on November 10, 1967, was premature because it was prior to the termination of the sixty-day period which the national Commission is required to afford the State agency "to remedy the practice alleged" by Section 2000e-5(c) (see International Brotherhood of Electrical Workers, Local Union No. 5 v. United States EEOC (C.A.3) 398 F.2d 248, 252),2 the charge which was filed with the national Commission on January 2, 1968, was within 210 days of the alleged discriminatory practice. Further, the 210-day period ended earlier than the period which terminated 30 days after notice was received of the termination of State proceedings, on December 31, 1968. Thus, the jurisdictional requirements of Love v. Pullman Co. (C.A.10) 430 F.2d 49, reversed in 404 U.S. 522, 92 S.Ct. 616, 30 L.Ed.2d 679; Washington v. Aerojet-General Corporation (C.D.Cal.) 282 F.Supp. 517; and International Brotherhood of Electrical Workers, Local Union No. 5 v. United States EEOC, supra, have been met by plaintiff in the case at bar.

Because of the uncertainty in the field of jurisdiction resulting from the decision of the Tenth Circuit Court of Appeals in Love v. Pullman Co., 430 F.2d 49, and the grant of certiorari to review that decision in 401 U.S. 907, 91 S.Ct. 873, 27 L.Ed.2d 805, a draft of this opinion was prepared but filing thereof stayed pending the decision of the Supreme Court of the United States in the Love case. After the decision of the Supreme Court of the United States reversing the Love case, the draft opinion was distributed to counsel for oral and written comments and objections to the proposed findings of fact, conclusions of law and judgment for plaintiff. At the oral argument it was agreed that the final decision in the Love case did not affect the jurisdiction in this case.

In its answer to the amended complaint, defendant further denies that "this Court has subject matter jurisdiction over this action to the extent it seeks redress for alleged unlawful employment practices of discrimination which practices were not charged before the Equal Employment Opportunity Commission and to the extent it seeks redress of charges the Equal Employment Opportunity Commission did not find reasonable cause to believe had merit." The "decision" of the national Commission dated October 15, 1969, recites that:

"Charging Party alleges that Respondent Employer engaged in unlawful employment practices in violation of Title VII of the Civil Rights Act of 1964 by maintaining policies in regard to layoffs, locker assignments, and overtime which affected her disparately because of her race (Negro)."

Basically, four contentions have been raised by plaintiff in the case at bar and have been considered by the Court. They are (1) the issue of plaintiff's having been criticized by defendant's supervisors immediately after her first week of work for slow production; (2) the alleged discrimination in locker assignments; (3) plaintiff's not being invited on one occasion to eat in the lunch room with other employees; and (4) the alleged discriminatory discharge. All of these contentions except (1) and (3) above were expressly raised before the Commission, according to its decision of October 15, 1969. Contention (1) was considered by the Commission as an evidentiary contention in support of contention (4) above. Further, this Court has considered the lunch room contention, not as an independent request for relief, but as an evidentiary contention submitted as support for the same pattern of discrimination which is made out by the other contentions. (As stated hereinafter the defendant's view of this incident has been adopted, and the contention found to be lacking in merit.) Thus, there is no factual merit to defendant's claim that the substance of the complaint herein has not been brought before the national Commission. It is true that the Commission found reasonable cause to exist to believe only that "respondent is in violation of Title VII of the Civil Rights Act of 1964 by maintaining a layoff policy which discriminates against Negroes because of their race." Thus, reasonable cause was not expressly found with respect to the other two contentions, although such a finding is implicit with respect to the premature criticism of plaintiff for low production. Further, in Shannon v. Western Electric Company (W.D.Mo.) 315 F.Supp. 1374, this Court held that a finding of reasonable cause by the Commission was not a prerequisite to bringing suit in federal district court if the other conditions precedent to federal judicial...

To continue reading

Request your trial
16 cases
  • EEO COM'N v. Kallir, Philips, Ross, Inc., 74 Civil 3234
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • 8 Octubre 1976
    ...F.2d 1242, 1243 (4th Cir. 1974) (en banc); Inda v. United Air Lines, Inc., 405 F.Supp. 426, 435 (N.D.Cal.1975); Lowry v. Whitaker Cable Corp., 348 F.Supp. 202, 218 (W.D.Mo.1972), aff'd, 472 F.2d 1210 (8th Cir. 1973). Cf. Ellerman Lines, Ltd. v. The President Harding, 288 F.2d 288, 290 (2d C......
  • Graham v. Bendix Corp., S82-19.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • 20 Abril 1984
    ...harsher treatment during employment, such a preference of males over females is a violation of Title VII. Lowry v. Whittaker Cable Corp., 348 F.Supp. 202 (W.D.Mo.1972), aff'd, 472 F.2d 1210 (8th The plaintiff, a black female, was treated differently than other employees who were not black f......
  • Pouncy v. Prudential Ins. Co. of America, Civ. A. No. 75-H-1877.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • 9 Julio 1980
    ...the employer deviated from its normal patterns and practices in effecting a complainant's termination. See, Lowry v. Whitaker Cable Corp., 348 F.Supp. 202, 210 (W.D.Mo.1972), aff'd per curiam, 472 F.2d 1210 (8th Cir. 1973). In the instant case, there is no evidence that defendant's employee......
  • Wagher v. Guy's Foods, Inc., 68980
    • United States
    • United States State Supreme Court of Kansas
    • 9 Diciembre 1994
    ...had pursued the lead, there was 'a reasonable probability' that she would have received a job offer.] In Lowry v. Whitaker Cable Corp., [348 F.Supp. 202 (W.D.Mo.1972), aff'd 472 F.2d 1210 (8th Cir.1973),] the court refused to accept the employer's contention that the discriminatorily discha......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT