McClain v. Wagner Elec. Corp.

• Decision Date: 09 March 1977
• Docket Number: No. 76-1257,76-1257
• Citation: 550 F.2d 1115
• Parties: 14 Fair Empl.Prac.Cas. 817, 13 Empl. Prac. Dec. P 11,563 Theophilus McCLAIN, Appellant, v. WAGNER ELECTRIC CORPORATION, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1115

550 F.2d 1115

14 Fair Empl.Prac.Cas. 817,

13 Empl. Prac. Dec. P 11,563

Theophilus McCLAIN, Appellant, v. WAGNER ELECTRIC CORPORATION, Appellee.

No. 76-1257.

United States Court of Appeals Eighth Circuit.

Submitted Nov. 12, 1976.

Decided March 9, 1977.

Kenneth R. Singer, St. Louis, Mo., for appellant; Raymond Howard, Jr., St. Louis, Mo., on brief.

D. J. Sullivan, St. Louis, Mo., for appellee; Timothy L. Stalnaker, St. Louis, Mo., on brief.

Abner W. Sibal, Gen. Counsel, Joseph T. Eddins, Jr., Associate Gen. Counsel, Charles L. Reischel, Asst. Gen. Counsel, and Raj K. Gupta, Atty., Equal Employment Opportunity Commission, Washington, D. C., on brief of the Equal Employment Opportunity Commission as amicus curiae.

Before VAN OOSTERHOUT, Senior Circuit Judge, and HEANEY and HENLEY, Circuit Judges.

HENLEY, Circuit Judge.

Theophilus McClain, a black man, brought this action in the United States District Court for the Eastern District of Missouri, alleging that in 1969 he had been discharged from the employ of the defendant, Wagner Electric Corporation, on account of his race and in violation of Title VII of the Civil Rights Act of 1964. 42 U.S.C. §§ 2000e et seq. Plaintiff seeks damages and reinstatement to his former position without loss of seniority or status. The suit was filed pursuant to § 706(f)(1) of the Act, as amended by the Equal Employment Opportunity Act of 1972, 42 U.S.C. § 2000e-5(f)(1).

Plaintiff filed his suit on July 31, 1975 on the basis of a right to sue letter, dated June 30, 1975, which had been issued to him by the St. Louis District Office of the Equal Employment Opportunity Commission (EEOC). The case was docketed as No. 75-670C(1) and was assigned to Chief United States District Judge James H. Meredith.

The defendant moved for summary judgment dismissing the complaint alleging that plaintiff could not maintain the action because of an earlier suit filed in the same court by the Commission in 1973 as provided by § 706(f)(1). The defendant supported its motion by an affidavit of one of its attorneys. Plaintiff opposed the motion and filed an affidavit alleging among other things that he had never been notified prior to June 30, 1975 of the pendency of the earlier suit or that that case had been settled and disposed of by a consent decree entered therein on November 5, 1973 by District Judge John F. Nangle.

On December 30, 1975 the district court filed a memorandum and entered an order which granted the motion of the defendant to dismiss the 1975 case and which denied plaintiff's motion for leave to intervene in the earlier case. Plaintiff has appealed from that order.

The appeal was submitted to us originally on an agreed appendix, the briefs of the parties, and oral argument. After argument we requested the Commission to file an amicus curiae brief bearing on plaintiff's contention that he had never been notified of the pendency of the 1973 suit. Such a brief has been filed, the defendant has responded to it, and both of those briefs, as well as the original briefs, have been considered by us.

The plaintiff and the Commission contend that the district court erred in dismissing the complaint in the 1975 case while at the same time denying leave to plaintiff to intervene in the 1973 case.

The complaint alleged in substance that in late 1969 plaintiff, while employed by the defendant, became involved in a physical altercation with a white supervisory employee and was discharged. Plaintiff's theory is that while he was discharged ostensibly for misconduct on his part, he was actually discharged on account of his race.

In January, 1970 plaintiff filed a complaint or charge with the Commission. It appears that his charge was not verified and perhaps was not in proper form. In February, 1971 plaintiff verified his complaint with the agency and perfected it. No claim is made that plaintiff's complaint to the Commission was untimely.

The Commission assumed jurisdiction of the claim. In May, 1972 plaintiff was advised by the agency that conciliation efforts had failed. However, he was not given a right to sue letter at that time, probably for the reason that the Commission had under consideration the question of whether to file the suit that it in fact did file in May, 1973.

That suit, which was based on the charges of a number of blacks, including plaintiff and one Henry Crump, was filed in the district court on May 14, 1973. It was originally docketed as No. 73C-310(3) with the number being changed later to 73C-310(4). The case fell originally to the docket of then District Judge William H. Webster and was transferred to the docket of District Judge Nangle after Judge Webster became a member of this court in July, 1973.

By November 5, 1973 the parties to the earlier suit had agreed upon a settlement, and their agreement was incorporated into a consent decree signed by Judge Nangle on that date, which decree was to remain in force for a period of two years.

The settlement agreed upon, while comprehensive in terms designed to eliminate future racial discrimination against employees and prospective employees of the defendant, gave no specific relief such as back pay or reinstatement to any individual employee, including the plaintiff.

As far as the instant case is concerned, the most significant portions of the decree are paragraphs 15, 16 and 17 which were as follows:

15. During the term of this Decree, the Commission covenants not to institute any further suit against Wagner with respect to allegations similar to the allegations in the complaint herein which are commonly characterized as systemic problems or "class" issues in private litigation under Title VII, to-wit: hiring, job assignment, promotions, transfer, discharge, recruitment and training and other terms and conditions of employment. This covenant shall apply to all race charges against Wagner during the two-year period of this Decree, including charges now pending before the Commission. It shall not apply to charges alleging acts of discrimination against specific individuals in violation of Title VII, except that compliance with this Decree will be taken as a full settlement by the Commission of EEOC Charge and Case Numbers TKC9-0190, YKCO-058 (Harris); TKCO-0309, YKC1-270 (McClain); TKCO-0495, YKC1-260 (Crump); TKC9-0191, YKCO-100 (Culp); TKCO-0287, YKC1-269 (Turner); TKCO-0285, YKC1-238 (Reynolds), and TKC9-0192, YKCO-099 (Worth). Compliance with this Decree will further be taken as a full settlement of all issues in this suit, and the complaint herein will be dismissed two years after entry of this Decree.

16. If, at any time during the term of this Decree, the Commission believes that there has been violation of its terms, it shall notify Wagner in writing of the alleged violation, and the latter shall be given reasonable opportunity not to exceed 30 days from the receipt of such notice, to take corrective action before the Commission shall institute any legal proceedings in connection therewith.

17. This Decree shall terminate two years from the date of its entry.

Plaintiff states, and for present purposes we accept his statement as true, that he was not notified of the settlement and was not aware of the fact or terms of the settlement until he received his right to sue letter on June 30, 1975.

The record does not reflect in any detail the circumstances in which the right to sue letter was issued. And the record is silent as to what efforts, if any, plaintiff made between May, 1972, when he was advised that conciliation efforts had failed, and June 30, 1975, when he received his right to sue letter, to ascertain the status of the complaint that he had pending with the agency.

Relying on the opinion of this court in EEOC v. Missouri Pacific R. R., 493 F.2d 71 (8th Cir. 1974), and on its own earlier decision in Crump v. Wagner Electric Corp., 369 F.Supp. 637 (E.D.Mo.1973), ¹ the district court held that plaintiff could not maintain his 1975 suit, and that his application for leave to intervene in the earlier suit was untimely. ² The over-all result of the district court's holding is that if the order is affirmed in both of its aspects, the plaintiff may be unable to assert his personal claim against the defendant.

Section 706(f)(1) provides that in certain circumstances the Commission may bring an action based on employee complaints, and when the Commission does so, employees may intervene in the suit as a matter of right. The section also provides that when certain conditions have been met, employees may file their own suits. If an employee files such a suit, the Commission may seek permissive intervention as provided by Fed.R.Civ.P. 24(b).

In EEOC v. Missouri Pacific R. R., supra, we held that duplicative suits by the Commission and by employees cannot be maintained under § 706 of the Act. Thus, if the Commission sues first, individual employees are not permitted to sue independently but may intervene as of right in the Commission's suit as provided by Fed.R.Civ.P. 24(a). If a private suit by an employee or employees is instituted prior to the filing of a suit by the Commission, the Commission's remedy is limited to permissive intervention under Rule 24(b) in the employees' suit, at least where the claims asserted by the Commission are no broader than those set out in the employees' suit. ³

Accordingly, we now hold that the plaintiff had no right to maintain his 1975 suit, and that his remedy was by way of intervention as of right in the 1973 suit.

Had the district court granted plaintiff's motion for leave to intervene in the earlier suit, plaintiff might have had no problem. And in our estimation the real question here is whether the district court erred in refusing to permit the plaintiff to intervene in the older case.

A person is not ordinarily in a position to intervene in a pending case if he is unaware of its existence, and plaintiff's assertions that he had no notice or...