McBroom v. Western Elec. Co., Inc., C-362-G-73.

• Decision Date: 04 April 1977
• Docket Number: No. C-362-G-73.,C-362-G-73.
• Citation: 429 F. Supp. 909
• Court: U.S. District Court — Middle District of North Carolina
• Parties: Russell B. McBROOM et al., Plaintiffs, v. WESTERN ELECTRIC COMPANY, INC., et al., Defendants.

429 F. Supp. 909

Russell B. McBROOM et al., Plaintiffs, v. WESTERN ELECTRIC COMPANY, INC., et al., Defendants.

No. C-362-G-73.

United States District Court, M. D. North Carolina, Greensboro Division.

April 4, 1977.

J. LeVonne Chambers, Adam Stein, Charles Becton and Jonathan Wallas, Charlotte, N. C., for plaintiffs.

Thornton H. Brooks, Greensboro, N. C., for Western Elec.

James B. Ledford, Charlotte, N. C., and Patrick M. Scanlon, Atlanta, Ga., for the Unions.

MEMORANDUM AND ORDER

GORDON, Chief Judge.

This matter is before the Court on the issue of defining the class to be represented by the named plaintiffs. At the final pretrial conference counsel for the parties reported that previous to the conference counsel had discussed the fact that the order of this Court declaring the matter to be a class action did not contain a cut-off date as part of the definition of the class. Counsel offered to confer in an attempt to agree on an appropriate date and, in the event that agreement could not be reached, to submit briefs to the Court setting forth their respective positions. Agreement was not forthcoming and, therefore, briefs have been filed by the plaintiffs, the defendant company, and the defendant unions.

The plaintiffs are seeking relief under the provisions of 42 U.S.C. § 1981 and 42 U.S.C. § 2000e et seq. (Title VII of the 1964 Civil Rights Act, as amended). The positions of the parties on the cut-off date issue as to the Title VII claims of the plaintiffs are as follows:

The plaintiffs contend that any black applicant or employee affected by the defendants' racially discriminatory practices, if such practices are found to exist, at anytime during the period from August 19, 1967 (two years prior to the filing of the first complaint with the Equal Employment Opportunities Commission) through the date of the defendants' implementation of a decree in this matter should be allowed to participate in the class. They further contend that any limitation with respect to individual relief should await further hearings in the case which would occur after a finding of discrimination by the Court, if such a finding is made.

The defendant company asserts that black applicants and employees whose claims matured more than ninety days before the first complaint of discrimination was filed with the Equal Employment Opportunities Commission (E.E.O.C.) by a named plaintiff (August 19, 1969) and whose claims were not continuing violations should be prohibited from participating in the class. Defendant company contends that the filing of the August 19, 1969, complaint cannot revive a stale claim and that only black applicants for employment and black employees as of and subsequent to May 17, 1969, can participate as class members.

The defendant unions apply the same theory as the defendant company but submit that the first charge against the unions was not filed with the E.E.O.C. by a named plaintiff until February 3, 1971. The defendant unions, therefore, maintain that, as to any Title VII claims against them, only black applicants for employment and black employees as of and subsequent to November 30, 1970, can participate as class members.

The general legislative history and underlying theory supporting Title VII favor the position of the plaintiffs. In enacting Title VII, Congress sought to eliminate a pervasive, objectionable history of denying or limiting one's livelihood simply because of one's race, color, sex, religion, or national origin. Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975). Despite the known limitations, Congress initially placed the burden for the enforcement of the Act upon the victims of discrimination and the federal courts. The 1972 Amendments authorized the E.E.O.C. to institute civil proceedings in the federal courts but retained the right for private litigation. 42 U.S.C. § 2000e-5(f)(1).

In order to implement the Congressional objective, the courts have allowed Title VII proceedings to be maintained as class actions and have authorized class injunctive relief and back pay even though all members of the class have not filed charges with the E.E.O.C. or exhausted the administrative procedures of the Act. Albemarle Paper Co. v. Moody, supra, and particularly Note 8 at 422 U.S. 414, 95 S.Ct. 2362. The critical factor is the exhaustion of the administrative provisions by at least one class member. Once that has occurred, the class member may then invoke the jurisdiction of the court and proceed to represent all persons similarly situated. In such cases, courts have the authority to address systematic and ongoing practices applied by employers to all black applicants and employees because of their race or color, pursuant to the provisions of Rule 23, Federal Rules of Civil Procedure. When such class standing is achieved, the individual claims are merged into the more pervasive practices and the courts, upon proper findings, may properly enjoin all such practices.

When a court considers an individual claim brought under Title VII, relevant dates, the nature of the alleged discriminatory acts, and the complaint procedure followed by the claimant are relevant for the purpose of determining jurisdiction and the relief which may be awarded should the individual prevail. Clearly, if no member of an alleged class has properly invoked the jurisdiction of the court, then the court is powerless to act. The record in this case, however, reveals that there are named plaintiffs who appear to have successfully met the jurisdictional requirements.

With respect to the relief which an individual claimant may receive, the Congress has established cut-off limits. If discrimination is found, back pay may not be awarded under Title VII for more than two years prior to the first charge filed with the Equal Employment Opportunities Commission. 42 U.S.C. § 2000e-5(f)(1). Within the limitations on relief expressly established by Title VII, the jurisdiction of the courts is broad, once a violation has been found, for the remedy must be designed to implement the purposes of the Fair Employment Practices Act. Franks v. Bowman Transportation Co., 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976); Albemarle Paper Co. v. Moody, supra.

The defendants assert that the relevant time period for purposes of determining the outer limits of the class represented by the named plaintiffs in this case is the ninety days prior to the filing of a complaint of discrimination with the E.E.O.C. They rely on the case of Wetzel v. Liberty Mutual Insurance Co., 508 F.2d 239 (3rd Cir. 1975), cert. denied, 421 U.S. 1011, 95 S.Ct. 2415, 44 L.Ed.2d 679 (1975), and adopt as their own the rationale set forth in that case. The position taken in Wetzel has been followed by the district courts in the Third Circuit¹ and by at least two other district courts as well.²

The rationale of Wetzel is clear and uncomplicated. In Wetzel the court succinctly concludes that:

"A plaintiff may bring a class action on behalf of those who have not filed charges with the EEOC. . . . This tolls the statute of limitations for all members of the class. . . . But Wetzel and Ross the named plaintiffs in this action cannot represent those who could not have filed a charge with the EEOC at the time they filed their charges. . . ." (citations omitted) 508 F.2d 246.

This position, for all of its straightforwardness and apparent simplicity, raises a major practical problem if the enforcement of Title VII is to achieve the broad remedial impact intended. This difficulty and the general approach to Title VII cases in the Fifth Circuit has led at least one district court in Georgia to reject the Wetzel approach. Sinyard v. Foote and Davies, 13 FEP Cases 1257 (N.D.Ga.1975).

The problem created by the Wetzel approach is this. While the ninety-day time limit is one of the time limits to be applied in Title VII cases, there are a number of reasons why courts have tolled the running of time limits as to individual claimants.³ An arbitrary use of the ninety-day time limit would conceivably deny relief to some individuals who, in fact, would qualify for an award of back pay. On the other hand, an attempt to identify such individuals prior to trial would be...