McDonald v. General Mills, Inc., Civ. No. S-2553.
| Decision Date | 05 December 1974 |
| Docket Number | Civ. No. S-2553. |
| Citation | 387 F. Supp. 24 |
| Court | U.S. District Court — Eastern District of California |
| Parties | Ellizabeth G. McDONALD, Individually and on behalf of all persons similarly situated, Plaintiff, v. GENERAL MILLS, INC., et al., Defendants. |
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Blackmon, Isenberg, Moulds & Blicker, John F. Moulds, III, Sacramento, Cal., for plaintiff.
Robert S. Daggett, Brobeck, Phleger & Harrison, San Francisco, Cal., for General Mills Inc., Union Oil.
Oliver F. Green, Carl W. Robertson, Paul, Hastings, Janofsky & Walker, Los Angeles, Cal., for S. S. Kresge Co.
Nathan R. Berke, Severson, Werson, Berke & Melchior, San Francisco, Cal., for Connecticut Gen. Life Ins. Co.
William L. Hooth, Burroughs Corp., Detroit, Mich., for Burroughs Corp. Jeffrey S. Goldman, Kalvin M. Grove, Lederer, Fox & Grove, Chicago, Ill., for General Adjustment Bureau, Inc., St. Paul Fire & Marine Ins. Co., Liberty Mut. Ins. Co.
J. Keith McKeag, Downey, Brand, Seymour & Rohwer, Sacramento, Cal., for International Harvester Co., Good-year Tire & Rubber Co., General Motors Acceptance Corp.
V. Barlow Goff, McDonough, Holland, Schwartz, Allen & Wahrhaftig, Sacramento, Cal., for A. Teichert & Son, Inc.
Forrest A. Plant, Diepenbrock, Wulff, Plant & Hannegan, Sacramento, Cal., for Chicago Bridge & Iron Co., Grove Valve & Regulator Co., Libby, McNeill and Libby, New York Life Ins. Co., John Hancock Mut. Life Ins. Co., Connecticut Mut. Life Ins. Co.
Bruce D. Starkey, Gen. Atty., The Hartford Ins. Group, Hartford, Conn., for Hartford Life Ins. Co. (The Hartford Ins. Group) note: not served as correct entity.
Don T. Hibner, Jr., Sheppard, Mullin, Richter & Hampton, Los Angeles, Cal., for J. C. Penney Co., Inc.
Robert O. Fort, Schei, Fort, Taylor & Pendergast, Sacramento, Cal., for Mut. Life Ins. Co., Mut. Trust Life Ins. Co.
C. Rex Boyd, San Mateo, Cal., James A. Pezzaglia, Martinez, Cal., and George W. Terry, Jr., Atlanta, Ga., for Phillips Petroleum Co.
John M. Schobel, Ralston Purina Co., St. Louis, Mo., for Ralston Purina Co.
Paul A. Dezurick, Graham & James, San Francisco, Cal., for Sea-Land Service, Inc.
David B. Johnson, Rust, Armenis & Matheny, Sacramento, Cal., for Sierra Pacific Power Co.
Pillsbury, Madison & Sutro, Charles F. Prael, Charles E. Voltz, David A. Rotman, San Francisco, Cal., for Western Electric, Prudential Ins. Co.
Russell, Jarvis, Estabrook & Dashiell, Robert W. Jarvis, Sacramento, Cal., for The Travelers Ins. Co.
McDermott, Will & Emery, Harry Sangerman, Chicago, Ill., and Littler, Mendelson & Fastiff, Wesley J. Fastiff, San Francisco, Cal., for Jewel Home Shopping.
Kronick, Moskovitz, Tiedemann & Girard, Edward J. Tiedemann, Sacramento, Cal., for Boise Cascade.
Wright, Nolan & Green, Vincent S. Wright, David B. Green, San Francisco, Cal., for Reliance Ins.
Johnson, Greve & Clifford, Claire H. Greve, Sacramento, Cal., for Minnesota National Life.
Bronson, Bronson & McKinnon, Edwin L. Currey, Jr., San Francisco, Cal., for Chubb & Son, Inc.
Equal Employment Opportunity Commission, Richard S. Cohen, Washington, D. C., amicus curiae.
Plaintiff brings this class action claiming unlawful sex discrimination in the employment practices of 31 corporate defendants in violation of Title VII of the Civil Rights Act of 1964, 42 U.S. C.A. § 2000e et seq., and seeking injunctive relief, compensatory damages, costs, and attorney's fees.
The factual setting is not complex. The Sacramento State College Graduate Placement Center sent employer recruitment visit forms to firms which had shown an interest in employment interviews on campus. The visit forms apparently contained boxes which could be checked if a firm preferred to interview either men or women graduates. Each of the defendants checked the box which indicated a preference for male graduates. Plaintiff, a student at Sacramento State, was scheduled to graduate in June, 1970. She and the class she represents allegedly sought to use the services of the Sacramento State College Graduate Placement Center during the spring of 1970, but were purportedly "deterred from making application for employment and seeking an interview" with representatives of the defendants. In addition, two of the defendants allegedly circulated printed recruitment brochures on campus which referred exclusively to employment opportunities for men. Plaintiff claims that those employment practices are sexually discriminatory and are therefore violative of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e et seq.
Plaintiff initially filed charges with the Equal Employment Opportunity Commission (EEOC) on May 15, 1970. The instant action was filed on August 23, 1972, pursuant to 42 U.S.C.A. § 2000e-5(f),1 after right to sue notices were issued to plaintiff on August 8, 1972.
A number of motions have been filed in this action by various defendants. In addition, several defendants have joined in each and every motion on file. As the motions on which my decision is based apply equally to all defendants, I shall refer to the defendants collectively rather than singling out the defendant or defendants who actually authored the particular motion under discussion.
At the outset, the Court is constrained to meet the challenges to its subject matter jurisdiction. Defendants argue first of all that subject matter jurisdiction is absent in this action for the reason that plaintiff's charges were never brought before the California Fair Employment Practice Commission (FEPC). Section 706(b) of the Civil Rights Act, 42 U.S.C.A. § 2000e-5(c) requires an aggrieved party, before filing a charge with the EEOC, to complain first to whatever state or local agency is authorized "to grant or seek relief from such unlawful employment practice or to institute criminal proceedings with respect thereto." Unless that requirement has been complied with, neither the EEOC nor this Court has jurisdiction to entertain the charge. Crosslin v. Mountain States Telephone and Telegraph Co., 422 F.2d 1028 (9th Cir. 1970). California's Fair Employment Practice Commission has authority to investigate and remedy discriminatory employment practices in California. However, on May 15, 1970, when plaintiff filed her charge with the EEOC, the FEPC did not have authority to investigate and remedy acts of discrimination based on sex. It was not until November 1970, that sex discrimination became an unfair employment practice under § 1419(f) of the California Labor Code. Calif.Stats.1970, c. 1508, p. 2994, § 3. Therefore the Civil Rights Act of 1964 did not require plaintiff to complain to the FEPC before turning to the EEOC. Donohue v. Shoe Corporation of America, 337 F.Supp. 1357 (C.D.Cal.1972).2
Defendants argue that even though plaintiff may not have been obligated to file with a state agency in May 1970, nevertheless it was incumbent upon the EEOC itself to refer the case to the FEPC once the latter agency acquired authority over sex discrimination cases in November 1970.
The Court recognizes that Congress, in enacting the Civil Rights Act of 1964, intended to give each state which establishes the proper administrative machinery a reasonable opportunity to deal with alleged employment discrimination problems arising in that state before the EEOC gets involved in the case. E.E.O.C. v. Union Bank, 408 F.2d 867 (9th Cir. 1969). However, my research has netted no authority which supports the view that an employment discrimination charge of which the EEOC acquired competent jurisdiction at the time the charge was filed, must be referred to a state agency which subsequently acquires authority to deal with such charges. In the Court's view, it would be counterproductive for the EEOC to come to grips with a discrimination charge for a substantial period of time, only to be required midstream to refer the matter to a state agency which comes into being subsequent to the filing of the charge.
The opinion in Love v. Pullman Co., 404 U.S. 522, 92 S.Ct. 616, 30 L.Ed.2d 679 (1972) does not support a contrary view. In that case the complainant filed a charge with the EEOC in Colorado without first complaining to the Colorado Civil Rights Commission. As that agency was empowered to take action on discrimination charges at the time the charge was brought to the EEOC, the EEOC held the charge in abeyance and referred the matter to the Colorado Commission for action before taking jurisdiction. The Supreme Court held that the procedure followed in that case was proper, noting that "Nothing in the Act suggests that the state proceedings may not be initiated by the EEOC acting on behalf of the complainant rather than by the complainant himself." (Emphasis added) In effect the Court in Love found that where a complainant files a charge with the EEOC before first filing with an existing state agency as required under 42 U.S.C.A. § 2000e-5(c), the EEOC may file with the state agency on behalf of the complainant. Thus the complainant himself must be under a statutory obligation to file with a state agency before the EEOC may file on his behalf. As I have already determined that a complainant such as the plaintiff here, is under no statutory duty to file a charge with a state agency which comes into existence after the charge has been filed with the EEOC, Donohue v. Shoe Corporation of America, supra, the opinion in Love v. Pullman, supra, cannot be read to require the EEOC to so file on behalf of the complainant before it can assume jurisdiction over the case. Accordingly, I find that the fact that neither the plaintiff nor the EEOC filed charges with the FEPC does not deprive the Court of jurisdiction in this matter.
Our inquiry into the jurisdictional bases of this action does not end here. There is no question that a valid right to sue notice issued pursuant to 42 U.S.C.A. § 2000e-5(f)(1)3 is also a prerequisite to a federal district court acquiring...
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