Mondy v. Crown Zellerbach Corporation

Decision Date26 July 1967
Docket Number67-286.,Civ. A. No. 66-242
PartiesPedro MONDY, Plaintiff, v. CROWN ZELLERBACH CORPORATION et al., Defendants. Anthony HILL et al., Plaintiffs, v. CROWN ZELLERBACH CORPORATION et al., Defendants.
CourtU.S. District Court — Eastern District of Louisiana

Dodd, Hirsch, Barker & Meunier, C. Paul Barker, Trial Atty., New Orleans, La., for United Papermakers and Paperworkers International AFL-CIO and Local 189 of the United Papermakers and Paperworkers AFL-CIO, defendants.

Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Michael J. Molony, Jr., Trial Atty., New Orleans, La., for Crown Zellerbach Corp., defendant.

Revius O. Ortique, Jr., New Orleans, La., for Local 189-A of United Papermakers and Paperworkers AFL-CIO, defendant, and Pedro Mondy, plaintiff.

Collins, Douglas & Elie, Richard B. Sobol, Trial Atty., New Orleans, La., George Cooper, New York City, for Anthony Hill, John Martin Oatis, David Johnson, Sr. and R. T. Young, plaintiffs.

Ramsey Clark, Atty. Gen., Dept. of Justice, Washington, D. C., Joseph R. Terry, Jr., Dept. of Justice, New Orleans, La., John Doar, Asst. Atty. Gen., Washington, D. C., Louis C. LaCour, U. S. Atty. for Eastern Dist. of Louisiana, New Orleans, La., John Bingler, Jr., Dept. of Justice, James Turner, Elihu I. Leifer, Dept. of Justice, Russell Spector, Equal Employment Opportunity Commission, Washington, D. C., for Equal Employment Opportunity Commission, intervenor.

COMISKEY, District Judge:

These two cases have been consolidated because they involve certain common questions of law and fact. In both cases Negro employees have brought actions against Crown Zellerbach Corporation under Title VII of the Civil Rights Act of 1964 after charges of discriminatory employment practices were filed with the Equal Employment Opportunity Commission. The charging parties have received letters from that agency advising them that it was unable to achieve a conciliation.

In Anthony Hill, et al. v. Crown Zellerbach Corporation, et al., Civil Action No. 67-286, four Negroes employed at the Mill Plant of the defendant corporation, which is located in Bogalusa, Louisiana, are maintaining an action on their own behalf, and on behalf of other Negroes similarly situated. The defendants in this case are Crown Zellerbach Corporation, United Papermakers and Paperworkers International Union, AFL-CIO, and the two Bogalusa Locals of that labor organization, Local 189 and 189-A. Local 189 is composed entirely of white employees, while the members of 189-A are all Negroes. The Equal Employment Opportunity Commission moved for leave to intervene, and its motion has been granted. Defendants have filed motions in both cases to dismiss for lack of jurisdiction, or in the alternative, for summary judgments in their favor. These motions are presently before the court and form the subject matter of this opinion.

Plaintiffs allege that until 1966 Crown Zellerbach maintained, pursuant to a collective bargaining agreement with the other defendants, separate lines of progression for white and Negro workers, reserving the better-paying and more desirable jobs for whites. In early 1966 these lines were nominally merged, but Crown, in cooperation with the International and the white local, allegedly created other barriers to employment of, or advancement by, Negro applicants and employees. Plaintiffs claim that this act violates Section 703 of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e-2. Some of these alleged barriers are the adoption of personnel tests administered as a condition precedent to employment or advancement, which are used or intended to be used to discriminate against Negroes; the creation and use of "trainee groups" in each department, admission to which is limited to white employees, which enable white trainees to "leapfrog" past Negro employees with greater seniority; and the discriminatory and fraudulent use of "waiver of promotions" to deprive Negro employees of their seniority rights. Plaintiffs further assert that Crown maintains segregated shower, locker and lavatory facilities in the Mill Plant and that the white employees are provided with superior facilities.

Plaintiff Anthony Hill has been employed in the Recovery Room of the Mill Plant for over 27 years. The highest position he has attained is that of "temporary" helper. When that job is not available, Hill works in a utility position. Plaintiffs allege that while Negroes are employed in the Recovery Room only in utility positions and occasionally as temporary helpers, white workers who have been admitted to the trainee groups are placed ahead of all Negroes in the line of progression regardless of seniority. On September 9, 1966, Hill filed a charge against the defendants, Crown, the International, and the two locals, with the Equal Employment Opportunity Commission. On February 14, 1967, the Commission wrote Hill that it was unable to obtain voluntary compliance from the defendants. Suit was filed on March 1, 1967, within thirty days after receipt of the letter from the Commission.

The other three named plaintiffs are also employed at the Mill Plant. However, none of these plaintiffs have filed charges with the Equal Employment Opportunity Commission.

Plaintiffs ask that the defendants be enjoined from engaging in the alleged discriminatory employment practices and for whatever further relief, including promotion and back pay, which may be necessary and proper.

The other case, Pedro Mondy v. Crown Zellerbach Corporation, et al., involves a similar situation. Pedro Mondy is a "temporary" employee in the job of "Recovery Room Combination Helper." He alleges that he is not classified as a "permanent" employee because of his low position in the progression line below many white workers who hold seniority which plaintiff claims was illegally gained by virtue of the pre-1966 practice of maintaining segregated lines of progression. These lines of progression were merged in early 1966 after several meetings had been held with the Chairman of the Equal Employment Opportunity Commission, Franklin D. Roosevelt, Jr. But plaintiff Mondy claims that since Negroes had been given the undesirable, low-paying, unskilled jobs before the lines were merged, Negroes are now at the bottom of the merged lines leading to the more desirable job classifications.

On May 27, 1966, Mondy filed a charge with the Equal Employment Opportunity Commission against Crown Zellerbach and the white local. He subsequently received his statutory letter and now brings an action on his own behalf and on behalf of all other Negro employees and prospective employees of the Crown Zellerbach Corporation, who he claims are similarly situated. He is maintaining this action against Crown Zellerbach and the United Papermakers and Paperworkers International Union, AFL-CIO, but he has omitted suing the white local. He asks for injunctive relief prohibiting defendants from engaging in the employment practices complained of and for any additional relief which is equitable and just.

Several significant points have been raised in memoranda and in arguments on the motions to dismiss, and each of these contentions will be considered separately.

PRESCRIPTION

42 U.S.C.A. § 2000e-5(e) states that the E.E.O.C. has a maximum period of sixty days within which to attempt to conciliate the problem raised by the charge. If at the end of this period, "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 * * *."

It is argued by the defendant unions that Anthony Hill's suit should be dismissed because he failed to maintain his action within the ninety day period mentioned in the statute. Anthony Hill did succeed in bringing suit well within the thirty day period following his receipt of the Commission's statutory notice of its failure to achieve a conciliation, but the E.E.O.C. delayed sending this letter to Hill for over five months.

The difficulty with the defendants' argument is that it places any person wishing to sue under Title VII in an impossible position. If such a party tried to sue within the ninety day period without first receiving the statutory notice, he would be met with the objection that he was suing prematurely, since 42 U.S.C.A. § 2000e-5(e) says that he may bring a civil action after being notified by the Commission of its failure to obtain voluntary compliance. Therefore, he would have to wait until he received the statutory notice from the E.E.O.C. But by this time the ninety days might well have passed and he would be met with the argument that he was barred by prescription. Surely, Congress could not have intended for an aggrieved party to be denied his remedy under Title VII because of the failure of the E.E.O.C. to notify him within sixty days. We feel that the proper interpretation of 42 U.S.C.A. § 2000e-5(e) is that a charging party must file suit within thirty days after receipt of the statutory notice from the E.E.O.C., regardless of the delay before such notice is given to him.

Other courts have agreed with our interpretation of the statute. In Dent v. St. Louis-San Francisco Railway, 265 F. Supp. 56 (N.D.Ala., 1967) the same argument of prescription was raised, but the court disagreed, stating that the sixty day requirement for conciliation should be given a directory rather than a mandatory construction and that a civil suit should not be barred because of the failure of the Commission to conciliate within that time. In Ward v. Firestone Tire & Rubber Co., 260 F.Supp. 579, 580 (W.D.Tenn., 1966), the court did not have to make a decision on this point, but commented on the prescription argument because it had been raised by the defendants in that case:

"Since it is not necessary to our decision here, we will not decide
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