Sokolowski v. Swift and Company

• Decision Date: 18 July 1968
• Docket Number: No. 3-68 Civ. 59 and 3-68 Civ. 58.,3-68 Civ. 59 and 3-68 Civ. 58.
• Citation: 286 F. Supp. 775
• Parties: Rosemary SOKOLOWSKI et al., Plaintiffs, v. SWIFT AND COMPANY, and United Packinghouse, Food and Allied Workers, A.F.L.-C.I.O., Local No. 167, and United Packinghouse, Food and Allied Workers, A.F.L.-C.I.O. International, Defendants. Henrietta B. HOLZEMER, Plaintiff, v. SWIFT AND COMPANY and Local 167, United Packinghouse Workers of America, AFL-CIO, Defendants.
• Court: U.S. District Court — District of Minnesota

286 F. Supp. 775

Rosemary SOKOLOWSKI et al., Plaintiffs, v. SWIFT AND COMPANY, and United Packinghouse, Food and Allied Workers, A.F.L.-C.I.O., Local No. 167, and United Packinghouse, Food and Allied Workers, A.F.L.-C.I.O. International, Defendants.

Henrietta B. HOLZEMER, Plaintiff, v. SWIFT AND COMPANY and Local 167, United Packinghouse Workers of America, AFL-CIO, Defendants.

Nos. 3-68 Civ. 59 and 3-68 Civ. 58.

United States District Court D. Minnesota, Third Division.

July 18, 1968.

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Stephen A. Sulentic, So. St. Paul, Minn., for plaintiffs Sokolowski, and others.

Marvin J. Morrison, St. Paul, Minn., for plaintiff Henrietta B. Holzemer.

Grannis & Grannis by Vance B. Grannis, Jr., So. St. Paul, Minn., for defendant Swift and Co.

Sigal, Savelkoul, Cohen, Sween & Salazar by Donald C. Savelkoul, Minneapolis, Minn., and Cotton, Watt, Jones & King by Irving M. King, Chicago, Ill., for defendant unions.

NEVILLE, District Judge.

These cases are before the court not on the merits but on the motions of the defendants to dismiss the complaints of plaintiffs on the grounds that the court lacks jurisdiction of the subject matter and that the complaints fail to state claims upon which relief may be granted. The plaintiffs are eighteen female employees of Swift and Company and have instituted these actions pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., alleging that the defendants have violated their rights to equal employment opportunities by discriminating against them on the basis of sex. Seventeen of these employees have retained common counsel and have instituted a single lawsuit as joint plaintiffs in the case of Sokolowski et al. The eighteenth employee, Henrietta B. Holzemer, has retained separate counsel and has instituted a separate action.

The complaint in the Sokolowski case (but not in the Holzemer case) purports in addition to the Civil Rights Act, to be based upon the National Labor Relations Act, 29 U.S.C. § 151 et seq., and upon the Fifth Amendment to the Constitution of the United States.

It appears that these 18 female employees of defendant Swift and Company filed charges of unlawful discrimination with the Equal Employment Opportunity Commission (Commission) during the year 1966, alleging that Swift and Company and the defendant Local 167, United Packinghouse Workers of America were, in their employment and job classification practices, unlawfully discriminating against them because of their sex.

A copy of the Commission's written ten-page decision is attached as Exhibit "A" to the affidavit of plaintiff Rosemary Sokolowski. It states that 14 of the 18 female employees filed charges with the Commission on March 31, 1966, 3 filed charges on June 27, 1966, and the remaining employee filed charges on August 4, 1966. The Commission decision, dated more than a year later, i. e., October 11, 1967, held reasonable cause existed to believe that a violation of the Civil Rights Act had been committed "by maintaining a job classification and seniority system which discriminated on the basis of sex." The decision of the Commission refers to each of the 18 female employees now plaintiffs in these actions. Plaintiff Sokolowski received a letter from the Commission dated October 18, 1967, informing her of the Commission's determination and advising her that "The Commission will attempt to eliminate this practice by conciliation as provided in Title VII."

Pursuant to the rules of the Commission, 29 C.F.R. § 1601.19(b), the defendants petitioned the Commission for a redetermination of its decision. Thereafter, plaintiff Sokolowski (and presumably the other 17 plaintiffs) received what appears to be a form letter from the Commission dated February 8, 1968 (a copy of which is attached as Exhibit "B" to the Sokolowski affidavit), entitled NOTICE OF RIGHT TO SUE WITHIN 30 DAYS. Such letter states:

"Dear Mrs. Sokolowski:

This is to advise you that conciliation efforts in the above matter have failed to achieve voluntary compliance with Title VII of the Civil Rights Act of 1964. Pursuant to Section 706(e) of the Act, you are hereby notified that you may, within thirty (30) days of the receipt of letter, institute a civil action in the appropriate Federal District Court. If you are unable to retain an attorney, the Federal Court is authorized in its discretion, to appoint an attorney to represent you and to authorize the commencement of the suit without payment of fees, costs or security. If you decide to institute suit and find you need assistance, you may take this letter, along with the Commission determination of reasonable cause to believe Title VII has been violated, to the Clerk of the Federal District Court nearest to the place where the alleged discrimination occurred, and request that a Federal District Judge appoint counsel to represent you.

Please feel free to contact the Commission if you have any questions about this matter." (Emphasis added)

The letter bears the signature of one Robert L. Randolph, Acting Director of Compliance.

On February 29, 1968, and within the aforesaid 30-day period, the complaint in Sokolowski et al was filed in this court. The separate action by Henrietta B. Holzemer was filed one day earlier, on February 28, 1968. After commencement of these actions, Mrs. Sokolowski (and presumably the other 17 plaintiffs) received from the Commission a letter dated March 7, 1968 (a copy of which is attached as Exhibit "C" to the Sokolowski affidavit) stating as follows:

"Dear Mrs. Sokolowski:

This is to advise you that the Commission has reconsidered its earlier decision in your case. A copy of the Ruling by the Commission is enclosed.

On February 21, 1968, the Commission determined that the Request for Reconsideration was timely filed by the Respondents, but insufficient in substance to merit any alteration in the findings and Decision originally issued.

You have already been notified of your right to bring a § 706(e) action under Title VII.

The Commission will, however, attempt to resolve the violations of the statute through conciliation. You will be contacted by the conciliator assigned to the case to discuss with you the appropriate form of remedy." (Emphasis added)

Attached to the affidavit of one Victor G. Perez, President of defendant Local 167, is a copy of a letter dated March 7, 1968 from the Commission addressed to Mr. Irving M. King, Esq., attorney for the defendant Local 167, informing him of the decision of the Commission sustaining the findings and conclusions set forth in the original decision of October 11, 1967. A copy of this latter ruling is annexed to Exhibit "C" of the Sokolowski affidavit and bears two dates, i. e., February 21, 1968 and March 7, 1968.

Oddly enough defendants have tendered the affidavit of Robert L. Randolph, the Acting Director of Compliance of the Equal Employment Opportunity Commission and the signator of the Sokolowski letter of February 8, 1968 titled "Notice of Right to Sue Within 30 Days", wherein he states with respect to both the Holzemer case and the Sokolowski et al case:

"No efforts to effect conciliation with respect to the charges filed by the plaintiffs in the above-described lawsuits were made by the Equal Employment Opportunity Commission prior to the filing of these suits on or about February 29, and 28, 1968, respectively."

Presently there is nothing before the court to indicate that anyone other than the plaintiff Sokolowski received the statutory "Notice of Right to Sue Within 30 Days" from the Commission declaring its inability to obtain voluntary compliance with the provisions of the Civil Rights Act. Defense counsel argues that at least 17 of the 18 cases should be dismissed on this ground alone. The court for purposes of discussing the nature of the statutory prerequisites to the maintenance of a civil suit under Title VII of the Civil Rights Act will assume that the same statutory notice was sent to all of the complaining employees who are parties plaintiff in the present actions. The Commission in its decision apparently considered the claims and charges of all 18 employees together and made common findings, conclusions and a decision with respect thereto. The court will allow plaintiffs 15 days from date hereof to present evidence by affidavit or certified copies of the existence of these letters. Failure to do so, unexplained, would seem to necessitate a dismissal of 17 of the 18 suits.

The defendants first contend that dismissal of these suits is required because the plaintiffs have not exhausted their administrative remedies before the Equal Employment Opportunity Commission as is required by Section 706(a), (e) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(a), (e). The pertinent provisions therein read as follows:

"(a) Whenever it is charged in writing under oath by a person claiming to be aggrieved, or a written charge has been filed by a member of the Commission where he has reasonable cause to believe a violation of this subchapter has occurred (and such charge sets forth the facts upon which it is based) that an employer, employment agency, or labor organization has engaged in an unlawful employment practice, the Commission shall furnish such employer, employment agency, or labor organization (hereinafter referred to as the `respondent') with a copy of such charge and shall make an investigation of such charge, provided that such charge shall not be made public by the Commission. If the Commission shall determine, after such investigation, that there is reasonable cause to believe that the charge is true, the Commission shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion. * * *

(e) If within thirty days after a charge is filed with the Commission or within thirty days after expiration of any period of reference under subsection (c) of

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