Mobley v. Acme Markets, Inc.

• Decision Date: 01 June 1979
• Docket Number: Civ. No. H-78-1658.
• Parties: Harry L. MOBLEY, Plaintiff, v. ACME MARKETS, INC., Defendant.
• Court: U.S. District Court — District of Maryland

473 F. Supp. 851

Harry L. MOBLEY, Plaintiff, v. ACME MARKETS, INC., Defendant.

Civ. No. H-78-1658.

United States District Court, D. Maryland.

June 1, 1979 and June 26, 1979.

COPYRIGHT MATERIAL OMITTED

Luther C. West, Baltimore, Md., for plaintiff.

Jeffrey P. Ayres and Lawrence S. Wescott, Baltimore, Md., for defendant.

ALEXANDER HARVEY, II, District Judge:

MEMORANDUM DECISION

This is an action brought by the plaintiff, Harry L. Mobley, a black male, against his employer, Acme Markets, Inc., alleging discrimination in employment on the basis of race, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. Presently before the Court is defendant's motion to dismiss, which raises three issues as follows: (1) the permissible scope of the complaint, (2) the timeliness of administrative charges filed by plaintiff with respect to one allegation of discrimination, and (3) plaintiff's standing to litigate certain claims on behalf of a class plaintiff seeks to represent.

Both parties have filed memoranda in support of and in opposition to the pending motion, and oral argument has been heard in open court. For the reasons discussed hereinafter, this Court is satisfied that defendant's motion should be granted in part and denied in part.

I Scope of Complaint

On May 15, 1974, plaintiff filed almost identically-worded administrative charges of discrimination with the Equal Employment Opportunity Commission (hereinafter "the EEOC") and with the Maryland Commission on Human Relations (hereinafter "the MCHR"). Those charges will be referred to collectively as "the administrative charge." Defendant contends that the only claims of discrimination asserted in the administrative charge are those that relate to (1) layoff, (2) recall and (3) denial of unemployment benefits. Relying on 42 U.S.C. § 2000e-5, et seq., defendant contends that all other claims alleged in the complaint by plaintiff individually, aside from the three mentioned, must be dismissed.

I start here with citing Judge Blair's decision in Hubbard v. Rubbermaid, Inc., 436 F.Supp. 1184 (D.Md.1977). In that case, in a very thorough examination of the relevant case law in this and other circuits, Judge Blair held that the scope of a Title VII suit is limited to the claims asserted in the administrative charge of discrimination and such other claims uncovered during a reasonable administrative investigation of that charge, provided that those other claims were actually investigated by the administrative agency. Accord Nance v. Union Carbide Corp., 540 F.2d 718, 727 (4th Cir. 1976), vacated on other grounds, 431 U.S. 952, 97 S.Ct. 2671, 53 L.Ed.2d 268 (1977); King v. Seaboard Coastline Ry. Co., 538 F.2d 581, 583 (4th Cir. 1976). It is not enough, under the view adopted by Judge Blair, that the claims in the complaint are "like or related" to the claims asserted in the administrative charge. Compare Jenkins v. Blue Cross Mut. Hosp. Ins., Inc., 538 F.2d 164 (7th Cir. 1976). Nor is it enough that the claims asserted in the complaint might or could have been uncovered during a reasonable administrative investigation of the charge had an investigation been conducted. Compare Bernstein v. National Liberty Int'l Corp., 407 F.Supp. 709 (E.D. Pa.1976). Thus, the test adopted by Judge Blair, with which the undersigned Judge is in full agreement, requires a careful comparison of the allegations in the complaint with the allegations in the administrative charge or charges and the issues investigated by the administrative agency.

This Court is satisfied that the allegations in the complaint concerning discrimination by the defendant against the plaintiff individually pertain to six areas. They are: (1) hiring, (2) layoff, (3) seniority system, (4) recall, (5) denial of unemployment benefits and (6) retaliation in the form of denial of vacation pay and harassment, including unwarranted criticism, excessive assignment to heavy work and a one-day suspension. Contrary to plaintiff's contention, the allegations in the complaint concerning discrimination by defendant against plaintiff individually are not as extensive as those concerning discrimination against the class plaintiff seeks to represent. The allegations in the complaint of class-wide discrimination relate to ten areas, namely: (1) hiring, (2) promotion, (3) transfer, (4) seniority, (5) layoffs, (6) recall, (7) discharges, (8) suspensions, (9) wages and (10) "terms and conditions of employment."

The administrative charge filed by the plaintiff with the EEOC on May 15, 1974 provides as follows:

I have been employed at the above-named company for four years as a full-time loader. In October 1973, I was laid off for reasons given me as a lack of work, even though there were approximately 40 or more men working overtime every day. When I was called back to work, the company wanted me to work as a part-time employee. I refused to work part-time because of the conflict it would present with the union contract and my benefits. I was finally recalled for full-time work in Marcy (sic) of 1974. However, prior to this call back, my seniority rights were bypassed. I lost benefit of regular and special pay and had my unemployment pay check cut because of the company's retaliatory actions. This warehouse employs a majority of black males who speak up for their rights. Whites are not subjected to this harassment. I feel that this company violates the terms and conditions of employment of black males. Further, I feel that I have been discriminated against because of my race.

The administrative charge filed with the MCHR is substantially the same.

A fair reading of the administrative charge is that it alleges discrimination in five areas, namely: (1) layoff, (2) recall, (3) loss of special and regular pay and unemployment benefits, (4) harassment and (5) the so-called "terms and conditions of employment." The meaning of this last allegation of discrimination will be discussed hereafter. However, the Court would note that the administrative charge expressly mentions denial of special and regular pay and expressly mentions harassment. Thus, defendant's contention, made in its briefs, that the administrative charge is limited to layoff, recall and denial of unemployment compensation must be rejected. Insofar as plaintiff's arguments are concerned, this Court rejects plaintiff's contention that the administrative charge expressly alleges that defendant's seniority system is discriminatory. A fair reading of the statement "my seniority rights were bypassed" is that it refers only to the layoff and recall allegations; that is, plaintiff was selected for layoff and was not selected for recall, both in violation of his seniority rights. Thus, the statement just quoted cannot be construed as a generalized attack on the seniority system itself but rather merely an allegation of particularized discrimination against plaintiff in the narrow areas of layoff and recall procedures.

The scope of the administrative investigation conducted by the MCHR, as disclosed by its written findings, was also limited to five areas, namely: (1) recall or "downgrading," (2) layoff, (3) so-called employment benefits, specifically, vacation pay, (4) segregated work facilities and (5) retaliatory harassment, including denial of unemployment compensation benefits, loss of regular and special pay, assignment to heavy work and the one-day suspension.

It should here be noted that defendant contends that only the administrative charge should be considered as the measure of the permissible scope of this lawsuit, and that the administrative investigation conducted by the MCHR should be disregarded. This contention is based on the assertion that the EEOC did not formally adopt the findings of the MCHR and that plaintiff terminated any EEOC investigation before conciliation was attempted. Cf., EEOC v. Chesapeake and Ohio R. R., 577 F.2d 229, 231-32 (4th Cir. 1978). But see Hubbard v. Rubbermaid, Inc., 436 F.Supp. at 1190. However, it is not necessary to decide this question because it is apparent that the administrative charge and the administrative investigation conducted by the MCHR do not differ in any significant way. All of the allegations of discrimination investigated by the MCHR were either expressly or implicitly included in the administrative charge with the single exception of the alleged segregated work facilities. But that allegation is not included in the complaint and therefore is not an issue in this case. Thus, it is not material here whether the allegations in the complaint are compared with the allegations in the administrative charge and with the areas investigated by the MCHR, or merely with the allegations in the administrative charge standing alone; the result is the same. When so compared, there are only two elements of apparent divergence. The allegations in the complaint regarding hiring and the seniority system were neither expressly asserted in the administrative charge nor specifically investigated by the MCHR. Thus, the viability of those allegations depends on whether they can be said to come within plaintiff's catchall allegation of discrimination in the administrative charge concerning the so-called "terms and conditions of employment."

After considering the relevant authorities, this Court is satisfied that under the particular facts of this case, the catchall allegation that the company "violates the terms and conditions of employment of black males" does not encompass allegations of discrimination relating to hiring and the seniority system. As noted by Judge Blair in Hubbard v. Rubbermaid, Inc., 436 F.Supp. at 1193 n. 11, terms and conditions of employment is an "amorphous phrase which takes on significance only when placed in the context of a specific charge of discrimination." Such a catchall allegation is not to be used as a springboard from which to launch a generalized attack on a broad range...