Mickel v. South Carolina State Employment Service

• Decision Date: 03 May 1967
• Docket Number: No. 11069.,11069.
• Citation: 377 F.2d 239
• Parties: Gussie MICKEL, Appellant, v. SOUTH CAROLINA STATE EMPLOYMENT SERVICE and/or Exide Battery Service, Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

377 F.2d 239 (1967)

Gussie MICKEL, Appellant, v. SOUTH CAROLINA STATE EMPLOYMENT SERVICE and/or Exide Battery Service, Appellees.

No. 11069.

United States Court of Appeals Fourth Circuit.

Argued April 4, 1967.

Decided May 3, 1967.

Dorothy Vermelle Sampson, Greenville, S. C. (Donald James Sampson and Sampson & Sampson, Greenville, S. C., on brief), for appellant.

Robert G. Horine, Columbia, S. C., for South Carolina Employment Service.

J. Frank Ogletree, Jr., Greenville, S. C. (Michael P. Mullins, and Thompson, Ogletree & Haynsworth, Greenville, S. C., on brief), for Exide Battery Co.

Before BOREMAN and CRAVEN, Circuit Judges.

BOREMAN, Circuit Judge.

Plaintiff, Gussie L. Mickel, brought this action against the South Carolina State Employment Service (hereafter State Employment Service) and Exide Battery Company (hereafter Exide) in the federal district court at Columbia, South Carolina, under Title VII of the Civil Rights Act of 1964.¹ After Exide had filed a motion to dismiss, with supporting affidavits, and had answered, the district court treated the motion as one for summary judgment and granted the motion in favor of Exide. We affirm the judgment of the district court.

The gravamen of the plaintiff's complaint filed in the court below is that she was discriminated against on the basis of race (Negro) in her attempt to secure employment with defendant, Exide. She charges that on various occasions prior to February 13, 1966, she presented herself to the State Employment Service at Sumter seeking job referrals and that she indicated a desire for employment with Exide; that she was never given any of the tests required by Exide as a prerequisite to referral and was never referred to Exide.

Plaintiff had no direct dealings with Exide and had made no direct contact with that company with respect to employment. It is her theory that the State Employment Service at Sumter was Exide's agent for the purpose of referring persons to Exide for employment at its Sumter plant. It was a fact that Exide had registered with the State Employment Service as a prospective employer, stating its standards of employment and the tests to be applied to job applicants. It was the general practice for the State Employment Service to administer and apply any tests and standards prescribed by a prospective employer and then refer applicants who successfully passed the tests and met the standards to such prospective employer.

On October 18, 1965, plaintiff had filed a charge against the State Employment Service with the Equal Employment Opportunity Commission (hereafter the Commission), pursuant to section 706 of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5, complaining that the State Employment Service had discriminated against her on the basis of her race and color. No complaint was ever filed with the Commission against Exide. After conducting an investigation the Commission decided on February 24, 1966, that there was reasonable cause to believe that plaintiff's application, because of her race, was not processed in accordance with the standard procedure of the State Employment Service. However, the Commission did not find any discrimination against plaintiff by the State Employment Service with respect to referral to Exide. Finally, the Commission concluded that plaintiff did not meet Exide's physical requirements.

Section 706 of the Civil Rights Act of 1964 provides in pertinent part:

"(a) Whenever it is charged in writing under oath by a person claiming to be aggrieved, * * * (and such charge sets forth the facts upon which it is based) that an employer, employment agency, or labor organization has engaged in an unlawful employment practice, the Commission shall furnish such employer, employment agency or labor organization * * * with a copy of such charge and shall make an investigation of such charge, * * *. If the Commission shall determine, after such investigation, that there is reasonable cause to believe that the charge is true, the Commission shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion. * * *." 42 U.S.C. § 2000e-5(a).

Section 706(d) provides that such charge must be filed within ninety days after the alleged unlawful employment practice took place. 42 U.S.C. § 2000e-5(d).

With its motion to dismiss Exide attached the affidavit of a field representative of the Commission in which it was categorically stated that plaintiff had not filed a charge against Exide.

Congress has provided that persons aggrieved by unlawful practices should first attempt to have the Commission settle the matter in an atmosphere of secrecy² without resorting to the extreme measure of bringing a civil action in the congested federal courts. To this effect section 706(e) of the Civil Rights Act of 1964 provides:

"If within thirty days after a charge is filed with the Commission * * * (except that * * * such period may be extended to not more than sixty days upon a determination by the Commission that further efforts to secure voluntary compliance are warranted), the Commission has been unable to obtain voluntary compliance with this subchapter, the Commission shall so notify the person aggrieved and a civil action may, within thirty days thereafter, be brought against the respondent named in the charge (1) by the person claiming to be aggrieved. * * *." 42 U.S.C. § 2000e-5(e).

It seems clear from the language of the statute that a civil action could be brought against the respondent named in the charge filed with the Commission only after conciliation efforts had failed, or, in any event, after opportunity had been afforded the Commission to make such efforts. If we correctly understand plaintiff's contention, it is that the State Employment Service was Exide's agent and...