Troy v. Shell Oil Company, Civ. A. No. 4-71662.

• Decision Date: 10 June 1974
• Docket Number: Civ. A. No. 4-71662.
• Citation: 378 F. Supp. 1042
• Parties: Beverly A. TROY, d/b/a Bev's Fillin' Station, Plaintiff and Cross-Defendant, v. SHELL OIL COMPANY, a Delaware corporation, Defendant and Cross-Plaintiff.
• Court: U.S. District Court — Western District of Michigan

378 F. Supp. 1042

Beverly A. TROY, d/b/a Bev's Fillin' Station, Plaintiff and Cross-Defendant, v. SHELL OIL COMPANY, a Delaware corporation, Defendant and Cross-Plaintiff.

Civ. A. No. 4-71662.

United States District Court, E. D. Michigan, S. D.

June 10, 1974.

James D. Wines, Royal Oak, Mich., for plaintiff.

Clarence J. Boldt, Jr., Birmingham, Mich., for defendant.

MEMORANDUM OPINION

FEIKENS, District Judge.

Plaintiff Beverly Troy is the lessee and operator of a service station owned by defendant Shell Oil Company. On April 26, 1974, she was informed that her yearly lease, which expires on May 31, 1974, will not be renewed. She subsequently filed this complaint, alleging that she was an employee of Shell within the meaning of 42 U.S.C. § 2000e(f), and was being terminated because of her sex, in violation of 42 U.S.C. § 2000e-2 (a)(1).

Upon petition of the plaintiff an order was entered directing Shell to show cause why a preliminary injunction should not issue preventing Shell from terminating its relationship with Ms. Troy during the pendency of this case. The initial hearing on this matter was adjourned for the purpose of permitting plaintiff to file a complaint with the EEOC and seek its assistance in obtaining preliminary relief. A supplemental pleading was then submitted, stating that plaintiff had filed a complaint against Shell with the EEOC, that the Commission had a large backlog of cases and apparently could not or would not act on plaintiff's complaint with the necessary dispatch, and reiterating that plaintiff would be irreparably harmed unless this court acted forthwith to preserve the status quo pending decision on the merits. There was also an attempt to amend the original complaint to assert a claim under 42 U.S.C. § 1981. Argument was then heard on the original order to show cause. This opinion supplements the record of that proceeding.

The lower federal courts are courts of limited jurisdiction. "Although theories as to inherent jurisdiction, jurisdictional fact, due process, separation of powers, and related doctrines may constitute peripheral qualifications upon the otherwise unlimited power of Congress to withdraw, curtail or in some other manner qualify a jurisdictional grant", it is generally true that federal courts have only such powers as are expressly or implicitly granted them by Congress and must exercise them in the manner and under the conditions prescribed. 1 J. Moore, Federal Practice ¶ 0.60 2 at 605 (2d ed. 1974).

"The judicial power of the United States, although it has its origin in the Constitution, is (except in enumerated instances, applicable exclusively to the Supreme Court), dependent for its distribution and organization, and for the modes of its exercise, entirely upon the action of Congress, who possess the sole power of creating the tribunals (inferior to the Supreme Court), for the exercise of the judicial power, and of investing them with jurisdiction either limited, concurrent, or exclusive, and of withholding jurisdiction from them in the exact degrees and character which to Congress may seem proper for the public good. . . . It follows, then, that the courts created by statute, must look to the statute as the warrant for their authority; certainly they cannot go beyond the statute, and assert an authority with which they may not be invested by it, or which may be clearly denied to them." Cary v. Curtis, 44 U.S. (3 How.) 236, 245, 11 L.Ed. 576 (1845).

Where a statute contains explicit enforcement provisions, those procedures are ordinarily exclusive. See e. g., Whitney National Bank v. Bank of New Orleans, 379 U.S. 411, 420, 85 S.Ct. 551, 13 L.Ed.2d 386 (1965). When the power to act initially is given exclusively to an administrative agency, "the District Court is without jurisdiction" to grant relief "for a supposed or threatened injury until the prescribed administrative remedy has been exhausted". Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 48, 50-51, 58 S.Ct. 459, 462, 82 L.Ed. 638 (1938).

"On a few occasions courts have been willing to exercise their equity powers to provide additional avenues of review despite the apparent exclusivity of the statutory procedures. Such exceptions, however, have usually been limited to situations in which the statutory review procedure is inadequate. Columbia Broadcasting System v. United States, 1942, 316 U.S. 407, 62 S.Ct. 1194, 86 L.Ed. 1563 . . . . Or they have been limited to cases in which the agency has exceeded its statutory or constitutional authority. Leedom v. Kyne, 1958, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210 . . . ." Fort Worth Nat'l Corp. v. Federal Savings & Loan Ins. Corp., 469 F.2d 47, 52 (5th Cir. 1972).

See generally 3 K. Davis, Administrative Law Treatise §§ 20.01-.10 (1958 ed., 1970 Supp.).

Congress has established certain administrative procedures and remedies for persons claiming to be aggrieved by discriminatory employment practices violative of Title VII of the Civil Rights Act of 1964. See 42 U.S.C. § 2000e-5. The courts have generally held that "compliance with the statutory requirements is a prerequisite to the institution of a civil action based on the statute". Goodman v. City Products Corp., 425 F.2d 702, 704 (6th Cir. 1970). Of course this principle of exhaustion, which was recognized and approved by the Supreme Court in Love v. Pullman Co., 404 U.S. 522, 523, 92 S.Ct. 616, 30 L.Ed.2d 679 (1972), is not indiscriminately applied to every administrative procedure specified in the statute, nor is it without its limited exceptions. For example, the EEOC's failure to investigate or attempt conciliation, as required by 42 U.S.C. § 2000e-5(b), will not preclude court action. See, e. g., Danner v. Phillips Petroleum Co., 447 F.2d 159, 161 (5th Cir. 1971); Johnson v. Seaboard Air Line R. R., 405 F.2d 645, 648-649 (4th Cir. 1968), cert. denied, Pilot Freight Carriers, Inc. v. Walker, 394 U.S. 918, 89 S.Ct. 1189, 22 L.Ed.2d 451 (1969). In a class action, all members of the class need not have filed charges with the EEOC or received suit letters if at least one of them has. Oatis v. Crown Zellerbach Corp., 398 F.2d 496, 499 (5th Cir. 1968); Leisner v. New York Tel. Co., 358 F.Supp. 359, 374 (S.D.N.Y.1973). The time limits prescribed for certain actions may not be strictly enforced in certain circumstances. See, e. g., Henderson v. Eastern Freight Ways, Inc., 460 F.2d 258, 260 (4th Cir. 1972); Aros v. McDonnell Douglas Corp., 348 F.Supp. 661, 663 (C. D.Cal.1972). A plaintiff may even avoid administrative procedures entirely if it is clear that resort to them would be futile. De Figueirdo v. TWA, Inc., 322 F.Supp. 1384 (S.D.N.Y.1971). Cf. Glover v. St. Louis-S. F. Ry., 393 U.S. 324, 330, 89 S.Ct. 548, 21 L.Ed.2d 519 (1969).

Normally, however, the Commission cannot be bypassed entirely, and must at least be given the opportunity to act. Fekete v. U. S. Steel Corp., 424 F.2d 331, 336 (3d Cir. 1970); Johnson v. Seaboard Air Line R. R., 405 F.2d 645, 652 (4th Cir. 1968), cert. denied. Pilot Freight Carriers, Inc. v. Walker, 394 U.S. 918, 89 S.Ct. 1189, 22 L.Ed.2d 451 (1969); Stebbins v. Nationwide Mut. Ins. Co., 382 F.2d 267, 268 (4th Cir. 1967), cert. denied, 390 U.S. 910, 88 S.Ct. 836, 19 L.Ed.2d 880 (1968). In order to fulfill this mandate, most courts have enforced two jurisdictional prerequisites: (1) the filing of a charge with the EEOC and (2) receipt of a notice from the EEOC of the right to sue. See, e. g., Local 179, United Textile Workers v. Federal Paper Stock Co., 461 F.2d 849, 850-851 (8th Cir. 1972); Jefferson v. Peerless Pumps Hydrodynamic, 456 F.2d 1359, 1361 (9th Cir. 1972); Stebbins v. Continental Ins. Cos., 143 U.S.App.D.C. 121, 442 F.2d 843, 845-846 (1971); Beverly v. Lone Star Lead Constr. Corp., 437 F.2d 1136, 1139-1140 (5th Cir. 1971); Dent v. St. Louis-S. F. R. R., 406 F.2d 399, 403 (5th Cir. 1969). Most courts have also required that the original charges before the EEOC and any subsequent lawsuit have been timely filed. See, e. g., Moore v. Sunbeam Corp., 459 F.2d 811, 821 n. 26 (7th Cir. 1972); Goodman v. City Products Corp., 425 F.2d 702, 703-704 (6th Cir. 1970).

Although Troy has now filed charges with the EEOC, thus satisfying the first condition, she has not received, nor is she yet entitled to receive, a notice of right to sue. The statute specifies that notice is to be given, and the aggrieved party may institute court action, only (1) if the Commission has dismissed the charge (which it may not do without first conducting an investigation—see 42 U.S.C. § 2000e-5(b)—though this requirement is not "jurisdictional" in the sense that the dismissal itself would be), or (2) if 180 days have elapsed from the filing of the charge or the expiration of any period of reference to a state agency pursuant to § 2000e-5(c) or (d) without the Commission having filed a complaint or entered into a conciliation agreement to which the aggrieved person is a party. 42 U.S.C. § 2000e-5(f)(1). Because the Commission has not had a full opportunity to act on plaintiff's grievance, as defined by the above statutory conditions, this court would ordinarily be without jurisdiction to entertain plaintiff's complaint or grant relief of any kind. The question now raised is whether this result is somehow altered by the fact that she presently seeks only preliminary injunctive relief, designed to preserve the status quo pending action by the EEOC.

At least two courts have held that preliminary injunctive relief is available notwithstanding the plaintiff's failure to exhaust administrative remedies. In Bowe v. Colgate-Palmolive Co., 272 F. Supp. 332, 338 (S.D.Ind.1967), aff'd in part and rev'd in part on other grounds, 416 F.2d 711 (7th Cir. 1969), the district court held that:

"It would be unrealistic to require an employee whose rights are threatened with irreparable harm to exhaust his remedies before the EEOC prior to seeking injunctive relief from the Court."

However, it...