Sciaraffa v. Oxford Paper Company

• Decision Date: 05 February 1970
• Docket Number: Civ. No. 10-92.
• Citation: 310 F. Supp. 891
• Parties: Mary SCIARAFFA et al., Plaintiffs, v. OXFORD PAPER COMPANY et al., Defendants.
• Court: U.S. District Court — District of Maine

310 F. Supp. 891

Mary SCIARAFFA et al., Plaintiffs, v. OXFORD PAPER COMPANY et al., Defendants.

Civ. No. 10-92.

United States District Court, D. Maine, S. D.

February 5, 1970.

COPYRIGHT MATERIAL OMITTED

G. Curtis Webber, Frank W. Linnell, Auburn, Me., Jack H. Simmons, Lewiston, Me., for plaintiffs.

Theodore H. Kurtz, Daniel T. Drummond, Jr., Hugh G. E. MacMahon, Portland, Me., for defendants.

OPINION AND ORDER OF THE COURT

GIGNOUX, District Judge.

This action is brought by seven former female employees of defendant Oxford Paper Company (now merged into Ethyl Corporation) against Oxford Paper Company and Local 900 United Papermakers and Paperworkers AFL-CIO, plaintiffs' collective bargaining representative. The amended complaint, which is in four counts, sets forth two causes of action against each defendant: (1) a claim under Title VII of the Civil Rights Act of 1964, alleging employment discrimination on account of sex;¹ and (2) a claim under Section 301(a) of the Labor Management Relations Act of 1947, alleging breach of a collective bargaining agreement.² Plaintiffs seek both injunctive relief and damages in all counts.

Presently before the Court are defendants' motions for dismissal of, and for summary judgment on, all four counts of the complaint. For reasons to follow, the Court has concluded that the motions directed to the Title VII counts against both defendants and the Section 301 count against the defendant Oxford must be in all respects denied; but that the motion for dismissal of the Section 301 count against the defendant Union must be granted.

I The Title VII Counts Against Both Defendants

In their Title VII counts, plaintiffs allege that they were formerly employed in the finishing department at the Rumford, Maine mill of the Oxford Paper Company in jobs classified as "fan, count, sort-hydraulics," and had seniority in their jobs ranging from in excess of 14 years to in excess of 18 years. Plaintiffs were "bumped" from their jobs by other women with greater mill seniority, plaintiffs Sciaraffa, Cormier, Giroux, Perry and West on February 27, 1967, plaintiff Grenier on January 30, 1967, and plaintiff Buccina on January 23, 1967. Plaintiffs allege that these "bumps" were discriminatory because male employees with less seniority were not "bumpable" by women, even though many jobs now being performed by men could be adequately performed by women. On May 15, 1967, plaintiffs filed charges against defendants with the Equal Employment Opportunity Commission (EEOC) alleging violation of their civil rights because of discrimination against them on account of their sex. Almost a year later, on May 6, 1968, plaintiffs were notified by the Commission that it had been unable to obtain voluntary compliance. The present action was filed on May 31, 1968. Thereafter, the Commission completed its investigation and in a decision dated August 15, 1968 found the existence of reasonable cause to believe that defendants had violated the provisions of Title VII.

Defendants have raised by their motions various procedural defenses to the Title VII counts, which they say preclude recovery by some or all of the plaintiffs. These will be separately discussed.

A.

Both defendants urge first that the Title VII counts should be dismissed because not brought within 90 days after charges were filed with the EEOC. Their argument is that under Section 706(e) of Title VII, the Commission has up to 60 days after the filing of a charge to attempt conciliation, and if it is unable to do so within the 60-day period, it must so notify the charging party, who must bring suit within 30 days thereafter.³ In this case, the Commission did not notify plaintiffs of its inability to effect conciliation until nearly a year after the filing of plaintiffs' charges. Although plaintiffs brought this action within 30 days of the notification, it is defendants' position that the statute required the Commission to complete its action within 60 days after the filing of the charges; and that at the end of this 60-day period, the 30-day period within which plaintiffs might file an action began to run.

To hold as urged by defendants would be to rule that an aggrieved party should be denied his day in court because of administrative delay by a commission over which he has no control. For this reason, it is not surprising that every appellate court which has considered the question has rejected defendants' interpretation of the statute. Cunningham v. Litton Industries, 413 F.2d 887 (9th Cir. 1969); Miller v. International Paper Co., 408 F.2d 283, 285-287 (5th Cir. 1959); Choate v. Caterpillar Tractor Co., 402 F.2d 357, 361 (7th Cir. 1968); see Stebbins v. State Farm Mutual Automobile Insurance Co., 413 F.2d 1100, 1101 (D.C. Cir. 1969).⁴ For the reasons stated in the cited opinions, defendants' argument is rejected here. The Court holds that the 30-day period within which suit may be filed under Section 706(e) does not begin to run until the charging party has received notice from the Commission of its inability to achieve voluntary compliance, regardless of the time the Commission has taken to process the charge. Plaintiffs filed their complaint in the present case within 30 days after receiving notice from the Commission that conciliation efforts had been unsuccessful. The complaint was timely filed.

B.

Defendants urge next that the claims of plaintiffs Grenier and Buccina should be dismissed because they did not file their charges with the EEOC within 90 days after their alleged discriminatory layoffs. Defendants' contention is that under Section 706(d) of the Act, an aggrieved party must file a charge with the Commission within 90 days of the act of discrimination complained of.⁵ It is defendants' position that since plaintiffs Grenier and Buccina were "bumped" from their jobs on January 30, 1967 and January 23, 1967 respectively, both dates being more than 90 days prior to May 15, 1967, the date when all plaintiffs filed their charges with the Commission, their present action is barred.

It is clear that the filing of a charge with the EEOC within 90 days after the alleged unlawful practice occurs is a jurisdictional prerequisite to a subsequent court suit under Title VII. Bowe v. Colgate-Palmolive Co., 416 F.2d 711, 719 (7th Cir. 1969); Mickel v. South Carolina State Employment Service, 377 F.2d 239 (4th Cir.), cert. denied, 389 U.S. 877, 88 S.Ct. 177, 19 L. Ed.2d 166 (1967).⁶ However, if the alleged violation is deemed to be "continuing," it has been consistently held that the 90-day period does not bar an ensuing court action. Cox v. United States Gypsum Co., 409 F.2d 289, 290 (7th Cir. 1969); Banks v. Lockheed-Georgia Co., 46 F.R.D. 442 (N.D.Ga.1968); Culpepper v. Reynolds Metals Co., 296 F.Supp. 1232, 1236 (N.D.Ga.1968); King v. Georgia Power Co., 295 F.Supp. 943, 946 (N.D.Ga.1968).

It may be conceded that a typical layoff, without more, is not a continuing event, but is a completed act at the time it occurs, so that a charge alleging a discriminatory layoff must ordinarily be filed within 90 days thereafter. Burney v. North American Rockwell Corp., 302 F.Supp. 86, 92 (C.D.Cal. 1969); see EEOC Opin.Ltr. 1/11/66, LRX 1892a. Cf. Hutchings v. United States Industries, Inc., 309 F.Supp. 691 (E.D.Tex.1969) (discontinuance of job assignment not a continuing event); Younger v. Glamorgan Pipe & Foundry Co., 310 F.Supp. 195 (D.W.Va.1969) (transfer not a continuing event); Culpepper v. Reynolds Metals Co., 296 F. Supp. at 1235 (failure to promote not a continuing event). However, in the present case, the EEOC charge filed by each plaintiff reads:

I was bumped off my job by other women employees from another department who had greater seniority. The employees who bumped me should have bumped male employees with lesser seniority. The Union grievance committee which is composed of men refused to process my complaint and arbitrarily dismissed it. I have been deprived of my employment contrary to the provisions of the labor-management contract in force between the company and the Union and am being refused any consideration or relief. (Emphasis added.)

The underscored language suggests, albeit somewhat inartfully, a claim of continuing discrimination, after a discriminatory layoff, resulting in plaintiffs' inability to regain the employment of which they had been improperly deprived. Furthermore, the record before the Court shows that under the collective bargaining agreement referred to in the charge, the company was obligated to recall laid-off employees in accordance with their seniority for a period of at least one year following the layoff. And, so far as the charge against the Union is concerned, the record discloses that a significant aspect of plaintiffs' complaint is the alleged discriminatory refusal by the Union to process plaintiffs' grievances arising from the layoffs in accordance with the contract requirements, conduct which it is charged continued at least until February 14, 1967.⁷ Cf. Moreman v. Georgia Power Co., 310 F.Supp. 327 (N.D.Ga.1969).

In Cox v. United States Gypsum Co., 409 F.2d at 290-291, the court held that an EEOC charge which explicitly alleged only a "continuing" discriminatory layoff should be read to provide a sufficient foundation for an action based on discrimination in failing to recall the plaintiffs. In so concluding, the court noted that in that case, as here, a layoff, as distinguished from a discharge, suggests the possibility of reemployment, and that the collective bargaining agreement required the company to consider seniority in making a recall. The court also observed that, as here, the charges filed with the Commission had been drafted by lay persons; that the company had received notices of other similar charges at or about the same time; and finally, that the Commission had accepted the charges as timely filed. As to the last factor, the court stated that "the commission's decision to...