Oubichon v. North American Rockwell Corporation

Decision Date10 July 1973
Docket NumberNo. 71-1540.,71-1540.
Citation482 F.2d 569
CourtU.S. Court of Appeals — Ninth Circuit

Hillel Chodos (argued), Los Angeles, Cal., for appellant.

Kenneth W. Anderson (argued), Stephen E. Tallent, J. Anthony Sinclitico, III, of Gibson, Dunn & Crutcher, Los Angeles, Cal., for appellee.

Charles L. Reischel (argued), John De J. Pemberton, Jr., Acting Gen. Counsel, Julia P. Cooper, Atty., Barbara Schlei, Legal Consultant, E. E. O. C., Washington, D. C., for amicus curiae.

Before CHAMBERS, HAMLEY and GOODWIN, Circuit Judges.

ALFRED T. GOODWIN, Circuit Judge:

Steven Oubichon appeals from a judgment of dismissal of a part of his complaint and a summary judgment against the remainder in an action for damages and injunctive relief under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e.

Oubichon, a black employee of North American Rockwell Corporation, alleged four acts of racial discrimination: (1) disciplinary suspension for marching in a C.O.R.E.-sponsored demonstration against North American on September 13, 1966; (2) exclusion from on-the-job training classes that started on March 27, 1967; (3) disciplinary action for a purportedly unauthorized entry upon company property on May 3, 1967; and (4) an interdepartmental transfer on June 13, 1967.

On March 21, 1967, after the first alleged incident, Oubichon filed an unsworn complaint with the Equal Employment Opportunity Commission (EEOC). The Commission referred him to the California Fair Employment Practices Commission (FEPC) to enable him to comply with § 706(b) of the Act, 42 U. S.C. § 2000e-5(b). The state agency rejected Oubichon's complaint because it had previously found similar complaints by other C.O.R.E. demonstrators "not sustained."

Oubichon then made a timely request for the EEOC to take jurisdiction, and filed a sworn charge alleging all four incidents. While Oubichon's case was being studied by the EEOC, Oubichon's union filed, under a collective-bargaining agreement, grievances based on the first two alleged incidents. North American settled these grievances without admitting discrimination. North American paid Oubichon his lost wages, and removed from his file the evidence of disciplinary measures.

In due course, the EEOC reported that it had been unable to obtain "voluntary compliance" from North American, thus clearing the way for Oubichon to commence this action in the district court. North American moved to dismiss all portions of the complaint except those relating to the first incident.

North American contended that because only the one matter had been brought before the state agency the court lacked subject matter jurisdiction over all but the allegations concerning the C.O.R.E. protest. With respect to that incident, North American sought summary judgment on the ground that the grievance proceedings constituted an election of remedies that barred a Title VII action and rendered the case moot.

In a decision reported at 325 F.Supp. 1033 (C.D.Cal.1970), the district court granted both motions. Oubichon appeals. We reverse.


The dismissal was predicated on Oubichon's alleged failure to comply with § 706(b) of the Act. The purpose of § 706(b) is to give state agencies an opportunity to consider discrimination complaints before federal authorities act. By contacting the California FEPC, Oubichon brought his complaint about the disciplinary action taken against the 1966 protestors within the requirement of § 706(b). Love v. Pullman Co., 404 U.S. 522, 92 S.Ct. 616, 30 L.Ed.2d 679 (1972). North American contends, however, that this single notification of the FEPC did not afford that agency an adequate opportunity to evaluate Oubichon's complaints of later incidents.

When an employee seeks judicial relief for incidents not listed in his original charge to the EEOC, the judicial complaint nevertheless may encompass any discrimination like or reasonably related to the allegations of the EEOC charge, including new acts occurring during the pendency of the charge before the EEOC. See Danner v. Phillips Petroleum Co., 447 F.2d 159, 162 (5th Cir. 1971); Tipler v. E. I. duPont deNemours & Co., 443 F.2d 125, 131 (6th Cir. 1971); Sanchez v. Standard Brands, Inc., 431 F.2d 455, 465-467 (5th Cir. 1970); Taylor v. Safeway Stores, Inc., 333 F.Supp. 83 (D.Colo.1971); Garneau v. Raytheon Co., 323 F.Supp. 391, 393-394 (D.Mass.1971); Sciaraffa v. Oxford Paper Co., 310 F.Supp. 891, 898 (D.Me.1970); Logan v. General Fireproofing Co., 309 F.Supp. 1096, 1100 (S.D.N.C.1969); King v. Georgia Power Co., 295 F.Supp. 943, 947 (N.D. Ga.1968); Note, Developments in the Law-Employment Discrimination and Title VII of the Civil Rights Acts of 1964, 84 Harv.L.Rev. 1109, 1216-18 (1971); cf. Macklin v. Spector Freight Systems, Inc., 478 F.2d 979 (D.C.Cir. 1973). The same standard should govern when the charge is first filed with a state agency. Cf. Latino v. Rainbo Bakers, Inc., 358 F.Supp. 869 (D.Colo. 1973). To force an employee to return to the state agency every time he claims a new instance of discrimination in order to have the EEOC and the courts consider the subsequent incidents along with the original ones would erect a needless procedural barrier. Cf. Love v. Pullman Co., 404 U.S. at 527, 92 S.Ct. 616.

As the present case shows, it is not always clear whether later incidents are reasonably related to or grow out of earlier incidents on which complaint is made. Oubichon now characterizes all his allegations as describing a chain of related actions designed to punish him for offending his employer. North American, on the other hand, asserts that each occurrence is separate. It cannot be said as a matter of law that North American's interpretation of the facts is the only acceptable one. A trial is necessary to resolve this dispute, and it follows that the district court erred in granting North American's motion to dismiss.

Furthermore, even if Oubichon's procedure had failed to satisfy § 706(b), dismissal was unwarranted. In cases where the state agency has been by-passed, the district court should retain jurisdiction for a period sufficient to allow the employee to seek redress through the state agency. Mitchell v. Mid-Continent Spring Co., 466 F.2d 24 (6th Cir. 1972), cert. denied, 410 U.S. 928, 93 S.Ct. 1363, 35 L.Ed.2d 590 (1972); Motorola, Inc. v. EEOC, 460 F. 2d 1245 (9th Cir. 1972).


The district court granted summary judgment on two grounds: North American's theory that the removal of the warning notice from Oubichon's file and the payment of the five days' salary he was docked rendered his claim moot; Oubichon's resort to union grievance machinery was an election of remedies barring recourse to the courts. Both theories were wrong.

The portion of the case pertaining to the C.O.R.E. protest is not made moot by the relief Oubichon received in the union grievance procedure. Oubichon claims that the disciplinary action taken against him for demonstrating is part of a chain of incidents indicative of a policy of racial discrimination. If he can prove this allegation, he may be entitled to injunctive relief from future manifestations of the alleged policy as well as money damages for past injuries. The controversy is justiciable, and Oubichon has the requisite personal stake in attempting to prove his allegations. If he succeeds, an injunction is possible. The case is not moot. See generally Note, Policy Conflict: Should an Arbitration Award Be Allowed to Bar a Suit Under Title VII of the Civil Rights Act of 1964?, 20 U.S.L.A.L.Rev. 84, 94-97 (1972); cf. Rosenfeld v. Southern Pacific Co., 444 F.2d 1219, 1221-1222 (9th Cir. 1971).

The election-of-remedies issue is more complex. While it is generally agreed that double recovery is to be avoided, most courts and commentators have rejected the stringent view adopted by the district court here. See, e.g., Macklin v. Spector Freight Systems, Inc., supra; Rios v. Reynolds Metals Co., 467 F.2d 54 (5th Cir. 1972); Voutsis v. Union Carbide Corp., 452 F.2d 889 (2d Cir. 1971); Newman v. Avco Corp., 451 F.2d 743 (6th Cir. 1971); Bowe v. Colgate-Palmolive Co., 416 F.2d 711 (7th Cir. 1969); Meltzer, Labor Arbitration and Overlapping and Conflicting Remedies for Employment Discrimination, 39 U. Chi.L.Rev. 30 (1971); Note, Dewey v. Reynolds Metals Company: Labor Arbitration and Title VII, 119 U.Pa.L.Rev. 684 (1971); Note, Developments in the Law, supra at 1222-1228. But see Alexander v. Gardner-Denver Co., 466 F.2d 1209 (10th Cir. 1972), aff'g 346 F.Supp. 1012 (D.Colo.1971), cert. granted, 410 U.S. 925, 93 S.Ct. 1398, 35 L.Ed.2d 586 (1973).

This circuit has recently observed that "there is no jurisdictional bar to invoking Title VII remedies and the arbitration process independently." Griffin v. Pacific Martime Ass'n, 478 F.2d 1118 (9th Cir. 1973). And in Rosenfeld v. Southern Pacific Co., supra, aff'g 293 F.Supp. 1219 (C.D.Cal.1968), we upheld a decision of the district court that denied that the election-of-remedies doctrine barred a judicial action where the employee abandoned the grievance procedures before a final decision was reached.

Title VII is silent on the need to exhaust contractual remedies or the effect of resort to union grievance procedures. On the other hand, the statute is very clear in spelling out the administrative prerequisites to suit and in specifying the implications of pursuit of administrative remedies on the right to judicial relief. See, e. g., Crosslin v. Mountain States Tel. & Tel. Co., 422 F.2d 1028 (9th Cir. 1970), vacated, 400 U.S. 1004, 91 S.Ct. 562, 27 L.Ed.2d 618 (1971). The inference is strong that Congress did not intend to deny Title VII relief to employees who availed themselves of contractual remedies before coming to the courts. Cf. Voutsis v. Union Carbide Corp., 452 F.2d at 893-894; Meltzer, supra at 44.

This statutory construction is fortified by an examination of the...

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