Smith v. Perkin-Elmer Corporation, Civ. No. 15749.

• Decision Date: 16 November 1973
• Docket Number: Civ. No. 15749.
• Citation: 373 F. Supp. 930
• Court: U.S. District Court — District of Connecticut
• Parties: Madison SMITH v. PERKIN-ELMER CORPORATION.

373 F. Supp. 930

Madison SMITH v. PERKIN-ELMER CORPORATION.

Civ. No. 15749.

United States District Court, D. Connecticut.

November 16, 1973.

David M. Lesser and William H. Clendenen, Jr., New Haven, Conn., for plaintiff.

Francis J. McNamara, Jr., and Ridgway M. Hall, Jr., Stamford, Conn., for defendant.

MEMORANDUM OF DECISION ON DEFENDANT'S MOTION TO DISMISS

NEWMAN, District Judge.

Defendant moves to dismiss this action in which plaintiff alleges racial discrimination in private employment, in violation of 42 U.S.C. §§ 1981, 1982 and the Thirteenth Amendment. Defendant contends that jurisdiction is lacking because required administrative remedies have not been exhausted, and that the action is barred by the applicable statute of limitations.

Plaintiff was employed by defendant as a draftsman for seven and one half years until March 10, 1972, when he voluntarily left the defendant company, allegedly because of his failure to receive a promotion. On May 1, 1973, he instituted this action, claiming that he was denied promotion on grounds of his race, and that defendant selected less qualified White employees for advancement instead of him. At no time during or following his employment did he file any charge of discrimination against the defendant with the Connecticut Commission on Human Rights and Opportunities, Conn.Gen.Stat. § 31-122 et seq., or the United States Equal Employment Opportunity Commission (hereafter EEOC), 42 U.S.C. § 2000e et seq.

Since § 1981 provides a sufficient basis for plaintiff's cause of action, it is unnecessary to determine whether the suit could be based on § 1982 or directly on the Thirteenth Amendment. The issues become whether administrative remedies must be exhausted and what statute of limitations applies to a § 1981 suit.

While conceding that § 1981 forbids racial discrimination by private employers,¹ and that Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., did not impliedly repeal it, defendant contends that the two statutes are in "irreconcilable conflict," Posadas v. National City Bank, 296 U.S. 497, 502, 56 S.Ct. 349, 80 L.Ed. 351 (1936), unless plaintiffs under § 1981 are required to exhaust the Title VII administrative remedies of conciliation, investigation and informal settlement provided by the EEOC (including the requirement that complaints first be made to the appropriate state agency). If plaintiffs under § 1981 are permitted to deliberately bypass this conciliation machinery, defendant argues, the Congressional purposes and policies of Title VII will be undermined, if not nullified.

Under Title VII, a plaintiff must file charges with the EEOC, and defer to that agency for a minimum period before bringing suit.² That period gives the EEOC an opportunity to investigate the charge, and, if it finds reasonable cause to believe that an unlawful employment practice has occurred, to attempt conciliation. Exhaustion of these remedies, as well as initial filing of charges within ninety days of the allegedly unlawful practice, are jurisdictional prerequisites to Title VII suits. McDonnell Douglas Corp. v. Green, 411 U. S. 792, 798, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Culpepper v. Reynolds Metals, 296 F.Supp. 1232 (N.D.Ga.1969).

Whether these requirements are to be imposed for § 1981 suits involves a somewhat special question of statutory construction. Should a relatively modern statute be construed as engrafting its procedural requirements on to an ancient statute of overlapping but not coextensive coverage? Section 1981, derived from the Civil Rights Act of 1866, 14 Stat. 27, creates a cause of action, inter alia, for racial discrimination in employment; Title VII, enacted in 1964, creates a cause of action for employment discrimination based on race, color, religion, sex, or national origin. The problem of determining the proper construction of the 1964 legislation is complicated by the fact that not until the Supreme Court decided Jones v. Alfred H. Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189, in 1967 was there an authoritative construction of the Civil Rights Act of 1866 that foreshadowed application of § 1981 to private employment discrimination. Thus the issue becomes: did Congress in 1964 create procedures for remedying employment discriminations that should apply to a prior statute that was subsequently construed to prohibit employment discrimination based on race?

There is no authority in this Circuit on the issue, and other circuits are divided. The Seventh has held that exhaustion is required, except in cases where the employee "pleads a reasonable excuse." Waters v. Wisconsin Steel Works of International Harvester Co., 427 F.2d 476, 487 (7th Cir. 1970). See also Allen v. Pipefitters Local Union 208 of Denver, Colorado, 56 F.R.D. 473 (D. Colo.1972); Tolbert v. Daniel Construction Co., 332 F.Supp. 772 (D.S.C.1971). The Third and Fifth Circuits, however, have held that exhaustion of Title VII administrative remedies is not a jurisdictional prerequisite to § 1981 suits. Young v. International Telephone & Telegraph Co., 438 F.2d 757 (3d Cir. 1971); Caldwell v. National Brewing, 443 F.2d 1044 (5th Cir. 1971); see also Macklin v. Spector Freight Systems, Inc., 5 E.P. D. 7769, 7780 (D.D.C.1973). The approach proposed by the Third Circuit, and endorsed by the Fifth, was that District Courts use their discretion to "suggest to defendants in certain cases . . . resort to the healing remedies of conference, conciliation, and persuasion." Young v. International Telephone & Telegraph Co., supra, 438 F.2d at 764; Caldwell v. National Brewing, supra, 443 F.2d at 1045.³

The conflict among the circuits is not surprising in view of the absence of clear Congressional guidance. Defendant relies on 42 U.S.C. § 1988, which provides that the jurisdiction of district courts conferred by the provisions of the chapter that includes § 1981 "shall be exercised and enforced in conformity with the laws of the United States." But this reference to federal law is no aid in determining the content of federal law. Defendant does not claim that the terms of Title VII make its provisions applicable to § 1981 suits. Nor can it seriously urge that there is any indication of Congressional intention to accomplish such a result. Indeed, as defendant points out, there is no reason to expect that in 1964 Congress would have considered whether to apply Title VII procedures to § 1981 suits, because § 1981 had not then been construed to create a cause of action for private racial discrimination in employment. Rather than argue from a non-existent 1964 Congressional intent, defendant contends that once § 1981 was broadly construed after the 1967 decision in Mayer Co., canons of statutory construction require a harmonizing of the statutes to avoid their inconsistent application.

There are several reasons why Title VII requirements should not be construed to apply to § 1981 suits. First, § 1981 concerns an important civil right, and if vindication of such a right is to be procedurally limited, Congress should do so expressly and define the limitation with precision. Cf. United States v. Welden, 377 U.S. 95, 103 n. 12, 84 S.Ct. 1082, 12 L.Ed.2d 152 (1964); United States v. Silverman, 132 F.Supp. 820 (D.Conn.1955); 1 Sutherland, Statutory Construction (3d Ed.) 365-66.

Second, the inconsistency asserted by defendant does not concern the coverage of the two statutes nor grounds of liability. Such conflicts might warrant a harmonizing interpretation to avoid results that conflict on the merits. No such conflict arises here if a § 1981 plaintiff is permitted to sue without invoking the administrative remedies required of a Title VII plaintiff.

Third, Congressional inaction in the years since the Mayer Co. decision becomes significant. In response to decisions applying § 1981 to private employment discrimination without Title VII requirements, Congress could have amended § 1981 to accomplish the result now urged by defendant. Indeed, a clear opportunity to do so arose in 1972 when Title VII was amended to enhance the enforcement effectiveness of the EEOC.⁴ Congress declined to extend Title VII's jurisdictional prerequisites, and the legislative history accompanying the Title VII amendments manifests its disappointment with the "emphasis on voluntariness," its abandonment of reliance on conciliation, and its determination that discrimination by private employers be ended without further delay.⁵

Finally, there are sound reasons why Congress would not have wanted to apply the Title VII requirements to § 1981 suits. To the extent plaintiffs intending to sue under § 1981 presently bring their grievance first to the EEOC, exhaustion is a mere formality. Because of current backlogs, the EEOC rarely reaches a finding of cause or no cause, much less attempts conciliation, within the mandatory waiting period. Title VII plaintiffs need wait no longer than the minimum period, regardless of the stage reached in the EEOC proceedings. Dent v. St. Louis-S. F. Ry., 406 F.2d 399 (5th Cir. 1959); Johnson v. Seaboard Air Line R. R. Co., 405 F.2d 645 (4th Cir. 1968). Court actions under Title VII are de novo proceedings, McDonnell Douglas Corp. v. Green, supra, 411 U.S. at 799, 93 S.Ct. 1817, and thus findings by the EEOC with respect to cause or other matters do not preclude suit, Robinson v. Lorillard Corp., 444 F.2d 791, 800 (4th Cir. 1970); Flowers v. Local 6, Laborers International Union of North America, 431 F.2d 205 (7th Cir. 1970). The EEOC's record on conciliation — its failure, for example, to reach even partial settlement in more than fifty percent of its cases—leaves a party little reason for reliance on administrative remedies if he is able to sue under § 1981. See Note, Developments in the Law — Employment Discrimination and Title VII in the Civil Rights Act of 1964, 84 Harv.L.Rev. 1109, 1245 (1971); Note, Racial Discrimination in Employment under the Civil Rights Act...