Settles v. Pinkerton, Inc.
| Decision Date | 12 November 1979 |
| Docket Number | Civ. A. No. 79-1238-5. |
| Citation | 482 F. Supp. 461 |
| Parties | Calvin SETTLES, Plaintiff, v. PINKERTON, INC., Defendant. |
| Court | U.S. District Court — District of South Carolina |
Calvin Settles, pro se.
William C. Hubbard, Columbia, S.C., for defendant.
ORDER OF DISMISSAL
By a motion filed July 30, 1979, (with an amended notice of motions supplementing and filed on August 6, 1979) defendant moves to dismiss the complaint for lack of jurisdiction of the subject matter pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure on the grounds that (a) the complaint fails to allege exhaustion of state and federal administrative remedies prior to the institution of suit; (b) that the complaint fails to state how this court has jurisdiction if the Equal Employment Opportunity Commission1 did not have jurisdiction of the claim. Additionally, defendant seeks dismissal for failure to state a claim insisting (c) the complaint fails to specify allegations necessary to establish a cause of action under due process clause of the Fifth and Fourteenth Amendments to the Constitution, a statutory cause of action under 42 U.S.C. § 1983, or a statutory cause of action under Titles VII of the Civil Rights Act of 1964. For a clear picture of the status of this file, a chronology is necessary.
On July 5, 1979, plaintiff, pro se, filed his "complaint" stating:
Previous to his filing the complaint he had filed with the EEOC a "charge of discrimination" on the Commission's Form 5a, which resulted in the Commission later issuing its Notice of Right to Sue (Dismissal) on April 20, 1979; that charge was dismissed for the following reasons:
No jurisdiction, therefore the Commission had no authority to process your charge further.
Apparently, after receiving the EEOC dismissal, on May 15, 1979, he filed in this court his application under Section 706(f) of the Civil Rights Act in which he asked for the appointment of an attorney and authority to proceed in forma pauperis. By order filed June 15, 1979, the United States Magistrate, to whom the matter was referred, refused to appoint counsel because of petitioner's failure to make any independent effort to obtain an attorney, but allowed him to proceed in forma pauperis. After the motion was filed on July 30, the Magistrate issued an order stating that the Magistrate would "consider the Motion based on applicable legal principles as to whether the Plaintiff had failed to state a claim upon which relief may be granted" and further that the "Plaintiff will have a period of thirty-four (34) days from the date of this Order within which to file and serve by mail on Defendant's attorney any objection he wishes to file to the Defendant's Motion.2 On August 28, 1979, the Magistrate filed another order noting that, since the motion to dismiss filed on July 30, 1979, the defendant had submitted affidavits supporting its motion, and, citing Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), giving the plaintiff the information directed by that opinion and giving him thirty-four (34) days, one month plus four (4) days mail time, to file any material he wished; extracts from Rule 12 and Rule 56 of the Federal Rules, and an explanation of summary judgment procedure was attached to the order and served on plaintiff by mail. On September 7, 1979, plaintiff filed his Notice of Motion "to administer Plaintiff's claim" stating the same thing as in his original complaint accompanied by a conclusory affidavit as to discrimination. No other supporting or refuting affidavits were furnished by the plaintiff.
This court is not certain but that plaintiff is attempting to state a claim pursuant to 42 U.S.C. § 2000e-2, but if he is, this court has no jurisdiction because plaintiff failed to allege in his complaint the exhaustion of available state remedies. Although he must also exhaust federal administrative remedies, which he has not alleged in his complaint, defendant did not pursue this because of the attaching of the "Right to Sue" letter from the EEOC Form 5a to his complaint.
Admittedly, 42 U.S.C. § 2000e-2 advises in part:
(a) It shall be an unlawful employment practice for an employer — (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin . . ..
It is further provided at 42 U.S.C.A. § 2000e-5(c):
In the case of an alleged unlawful employment practice occurring in a State, or political subdivision of a State, which has a State or local law prohibiting the unlawful employment practice alleged and establishing or authorizing a State or local authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, no charge may be filed under subsection (b) of this section by the person aggrieved before the expiration of sixty days after proceedings have been commenced under the State or local law, unless such proceedings have been earlier terminated, provided that such sixty-day periods shall be extended to one hundred and twenty days during the first year after the effective date of such State or local law. If any requirement for the commencement of such proceedings is imposed by a State or local authority other than a requirement of the filing of a written and signed statement of the facts upon which the proceeding is based, the proceeding shall be deemed to have been commenced for the purposes of this subsection at the time such statement is sent by registered mail to the appropriate State or local authorities.
It is obvious that the intent of the above-cited statute is to require a plaintiff to exhaust state administrative remedies, if any be available, before proceeding in the federal forum, and that the pursuit of available state remedies is required before this court has jurisdiction of any claim under 42 U.S.C. § 2000e-2. As stated in Abshire v. Chicago & Eastern Illinois Railroad Co., 352 F.Supp. 601 (N.D.Ill.1972):
Thus, it is the opinion of this Court that where substantial relief against alleged discrimination is available under state law, the person aggrieved must pursue state remedies before a valid complaint may be filed with the EEOC or with this Court. Id. at 605.
In King v. New Hampshire Dept. of Resources and Economic Development, 420 F.Supp. 1317 (D.N.H.1976), aff'd 562 F.2d 80 (1st Cir. 1977), the court decided that before a plaintiff can bring a civil action pursuant to 42 U.S.C. § 2000e he must follow the procedures delineated in 42 U.S.C. § 2000e-5(c) requiring the filing of unlawful employment practices claims occurring in a state to the proper state administrative authority. Of course, a plaintiff is not required to pursue state remedies unless such remedies are available. As 42 U.S. C.A. § 2000e-5(c) requires:
The practice alleged must violate the federal law, Title VII; it must also violate a state or local law prohibiting the practice alleged; the state must have set up some mechanism to deal with the violation. That last requirement is fulfilled if the state has either established a state or local authority or authorized an existing state or local authority that is empowered to do one of three things: to grant relief from the practice; to seek relief from the practice; or to institute criminal proceedings with respect to the practice. White v. Dallas Independent School District, 581 F.2d 556, 558-559 (5th Cir. 1978).
South Carolina has such statutory provisions prohibiting, in language almost identical to the federal statute, any unlawful employment practice by an employer. The State has a Human Affairs Commission which has the authority to deal with any such violations and is empowered to seek relief from the employer for the alleged discriminatory practice.3 Attached to this complaint is an apparent copy of the form which plaintiff filed with the South Carolina Human Affairs Commission, alleging discriminatory acts by the defendant. This form was filed prior to March 22, 1979, the date that the South Carolina Human Affairs Commission gained the power to investigate and grant relief from private acts of discrimination. Plaintiff should have and was required to exhaust this state remedy once it became available. Even though he previously filed a claim with the South Carolina Human Affairs Commission, his efforts were to no avail since this Commission had no power. But plaintiff did have an available remedy after March 22, 1979 which he was required to pursue. Since South Carolina did afford appropriate administrative remedies on March 22, 1979, the plaintiff was required to exhaust those remedies before filing this action in the federal court. His complaint contains no allegations whatsoever that he had undertaken steps to exhaust his available state remedies subsequent to March 22, 1979. Without such allegations, this court is required to dismiss any claim by plaintiff brought pursuant to 42 U.S.C.A. § 2000e-2.
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...at the behest of the state or federal government, thus, Garrett cannot establish a claim against Defendants. See Settles v. Pinkerton, Inc., 482 F. Supp. 461, 466 (D.S.C 1979) ("the due process clause of the Fifth Amendment applies to and restricts only the federal government and not privat......
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