Padilla v. Stringer

• Decision Date: 31 December 1974
• Docket Number: Civ. No. 10432.
• Parties: Joe C. PADILLA, Plaintiff, v. Dr. Bruce STRINGER and City of Albuquerque, Defendants.
• Court: U.S. District Court — District of New Mexico

395 F. Supp. 495

Joe C. PADILLA, Plaintiff, v. Dr. Bruce STRINGER and City of Albuquerque, Defendants.

Civ. No. 10432.

United States District Court, D. New Mexico.

December 31, 1974.

COPYRIGHT MATERIAL OMITTED

Toulouse, Krehbiel & Cheney, P. A., Briggs F. Cheney, Albuquerque, N. M., for plaintiff.

Frank Horan, City Atty., Elizabeth N. Love, Asst. City Atty., Albuquerque, N. M., for City of Albuquerque.

Michael M. Rueckhaus, Albuquerque, N. M., for Dr. B. Stringer.

MEMORANDUM OPINION

BRATTON, District Judge.

Plaintiff is a past employee of the city of Albuquerque Rio Grande Zoo and presently holds the position of gas station attendant in the city vehicle maintenance department. He brings this action on behalf of himself and seeks to represent a class consisting of past, present, and future individuals of Spanish national origin who were, are, or will be discriminated against in their employment at the Rio Grande Zoo. Plaintiff seeks injunctive and declaratory relief as well as damages. Defendants are the city of Albuquerque and Dr. Bruce Stringer, director of the Rio Grande Zoo. Jurisdiction is invoked pursuant to 28 U.S.C.A. § 1343(4) and 42 U.S.C.A. §§ 1983, 2000e et seq.¹

Dr. Stringer challenges the court's jurisdiction insofar as the plaintiff is proceeding against him individually under 42 U.S.C.A. § 2000e et seq. Sec. 2000e(b) defines an employer as "a person engaged in an industry affecting commerce . . . and any agent of such a person . . ." Accordingly, an individual employee of an employer can be sued for participating in the managerial decisions that constitute the alleged discriminatory conduct. Dr. Stringer in his capacity as director of the zoo is an agent of the city of Albuquerque within the meaning of § 2000e(b).

Dr. Stringer was named individually along with the city as a respondent in the charge before the Equal Employment Opportunity Commission (EEOC), a prerequisite to Title VII discrimination suits.² However, the record does not disclose whether a "suit-letter" was ever issued as to plaintiff's claim against Dr. Stringer individually.³ The letter only refers generally to the EEOC case file, No. YAL3-333, and that file reflects that the EEOC never served notice of plaintiff's charge on Dr. Stringer individually as required by 42 U.S.C.A. § 2000e-5(b). Nevertheless, plaintiff's claim against Dr. Stringer should not be prejudiced because the EEOC inadvertently treated his charge before it as if the city were the only respondent. A plaintiff is responsible only for satisfying the requirement of pursuing his administrative remedy placed on him by the provisions of Title VII, and not for omissions by the EEOC. See Miller v. Int'l Paper Co., 408 F.2d 283, 290 (5th Cir. 1969); Aros v. McDonnell Douglas Corp., 348 F.Supp. 661, 663 (C.D.Cal. 1972); Foye v. United A. G. Stores Coop, Inc., 336 F.Supp. 82, 83 (D.Neb. 1972); Johnson v. ITT-Thompson Indus., 323 F.Supp. 1258 (N.D.Miss. 1971).

I.

Plaintiff was first hired by the city on March 9, 1969, as a temporary employee to work part time as a night watchman at the zoo. On April 7, 1969, he became a permanent employee. Two weeks later he was promoted from night watchman to zookeeper I. He received four merit increases with the approval of Dr. Stringer on October 20, 1969, November 2, 1970, November 15, 1970, and October 30, 1972. In January 1973, the plaintiff and three other employees at the zoo sought to fill a zookeeper II vacancy in the hoofstock area. Plaintiff was denied this promotion, and effective May 7, 1973, he sought and obtained a transfer to the city vehicle maintenance department as a watchman.

Dr. Stringer first came to the Rio Grande Zoo as director in August 1968. From then until the date of trial he was responsible for all personnel at the zoo with the exception of a short period from January 29, 1974, to July 15, 1974, when another employee of the city was appointed acting director of the zoo and Dr. Stringer had responsibility for veterinary services.

In addition to alleging a pattern or practice of discrimination against all employees of Spanish origin at the zoo, plaintiff specifically claims discrimination in regard to: (1) his denial of promotion from zookeeper I to zookeeper II; (2) his transfer to the city vehicle maintenance department was coerced as the result of harassment by Dr. Stringer; and (3) the city's job requirement that any employee promoted or placed into a zookeeper position must have a high school diploma or its equivalent works an invidious discrimination against peoples of Spanish origin.

Shortly after plaintiff's employment at the zoo it was discovered by the city personnel department that he had falsified an answer on his application form in that he had neglected to record a past felony conviction. The personnel department notified Dr. Stringer of the past conviction and asked for his recommendation. Dr. Stringer was pleased with plaintiff's work with the birds at the zoo and believed that Mr. Padilla should be allowed to remain. However, the plaintiff was told that the incident might affect future decisions regarding him.

The plaintiff had considerable knowledge about birds before he came to the zoo. Dr. Stringer had given him some eggs from zoo animals to see if he might incubate them. Plaintiff continued to take these eggs after he was employed. Many of them were quite valuable eggs from rare birds. When Dr. Stringer learned that Mr. Padilla was taking rare bird eggs, he accused plaintiff of theft. The testimony was conflicting as to whether Mr. Padilla had permission to take the eggs or had been stealing them and whether he had been selling the eggs to other persons and retaining the proceeds.

In June 1971 a muscle in plaintiff's right shoulder was injured in an accident with an elephant, resulting in surgery and inability to lift heavy weights until use of the shoulder was regained. The injury was the cause of two minor motor vehicle accidents at the zoo in September 1972 because Mr. Padilla could drive with only one hand. Dr. Stringer accused Mr. Padilla of abusing his sick leave privileges at the zoo, but plaintiff maintained that he was only leaving work early to go to a doctor for therapy for his shoulder.

In January 1973 Mr. Padilla and three others sought the promotion to zookeeper II in the hoofstock area. The position requires lifting of heavy weights such as feed sacks and bales of hay. At this time Mr. Padilla was still complaining of problems with his shoulder.

As to plaintiff's claim on the behalf of other employees at the zoo, there was conflicting evidence of a number of other incidents, including verbal slurs against people of Spanish or Mexican descent, favoritism in promotions, harassment by assigning less desirable tasks to specific individuals, inequitable treatment among employees as to punishment for tardiness in arriving at work and length of allowed coffee breaks, as well as an alleged attempt by Dr. Stringer to frame an employee for poisoning animals by planting poison in the employee's car. On the other hand, there was testimony concerning improper care of animals, poisoning of animals, acid being thrown on an animal, widespread theft of livestock feed, and possible arson of a building housing the children's zoo during a union strike.

II.

An issue that must be considered before reaching the merits is the charge that plaintiff has failed to exhaust his federal, state, and local administrative remedies prior to initiating suit in this court.

Plaintiff was first notified by Dr. Stringer that he was being denied his requested promotion from zookeeper I to zookeeper II in the hoofstock area on January 25, 1973. The following day he filed his charge of discrimination with the EEOC. The complaint pertained not only to the denied promotion but to a continuing pattern or practice of discrimination by Dr. Stringer against Spanish origin employees at the zoo. However, the charge did not allege a constructive discharge from the zoo and could not have on that date because Mr. Padilla did not transfer from the zoo to the vehicle maintenance department until May, 1973. Nor did the charge before the EEOC challenge the high school or equivalent job qualification for the zookeeper position. Plaintiff's charge with the EEOC was referred to the Human Rights Commission of New Mexico on January 26, 1973. Without taking any action, the state commission referred the charge back to the EEOC on January 31, 1973.

Defendants claim that the plaintiff has failed to exhaust his federal and state administrative remedies as to the constructive discharge and high school job requirement questions, neither of which were raised in the original charge filed with the EEOC or considered by it. However, it is not required that a plaintiff unschooled in the law specifically articulate in the charge he files with the EEOC the full panoply of discrimination he may have suffered. King v. Georgia Power Co., 295 F.Supp. 943, 947 (N.D. Ga.1968). It has not been shown in this action that the issues of constructive discharge and the high school job qualification were not subjects of the conciliation efforts before the EEOC.

As to the Title VII claims against the defendants, the plaintiff has a local remedy under the grievance procedure of a city ordinance.⁴ The grievance process of the city's Merit System Ordinance provides an aggrieved employee with a series of hearings and appeals up through the administrative levels with which to prosecute his claim. It is first urged that the employee attempt to resolve his complaint informally by discussing it with his immediate supervisor. If the department head learns of the problem and considers it serious, he may in his discretion call for a hearing at this time to make certain he has all the relevant information to resolve the dispute or on which to justify any employee reprimand. If the problem is not resolved to the satisfaction of the employee by...