Van Hoomissen v. Xerox Corporation

• Decision Date: 19 December 1973
• Docket Number: No. C-73-0423 OJC.,C-73-0423 OJC.
• Citation: 368 F. Supp. 829
• Parties: Dave VAN HOOMISSEN, Plaintiff, and Equal Employment Opportunity Commission, Plaintiff-Intervenor, v. XEROX CORPORATION et al., Defendants.
• Court: U.S. District Court — Northern District of California

368 F. Supp. 829

Dave VAN HOOMISSEN, Plaintiff and Equal Employment Opportunity Commission, Plaintiff-Intervenor, v. XEROX CORPORATION et al., Defendants.

No. C-73-0423 OJC.

United States District Court, N. D. California.

December 19, 1973.

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Thorne, Clopton, Herz, Stanek, San Jose, Cal., Howard C. Anawalt, Santa Clara, Cal., for plaintiff.

Chris Roggerson, Chester F. Relyea, June Wooliver Stahl, Carlos G. Ynostroza, San Francisco, Cal., for EEOC.

Brobeck, Phleger & Harrison, Richard Haas, San Francisco, Cal., for defendants.

MEMORANDUM AND ORDER

OLIVER J. CARTER, Chief Judge.

Defendant Xerox and the nine individual defendants in this case have moved the Court to dismiss plaintiff's complaint and to strike each of its counts.

Plaintiff Van Hoomissen is suing defendants for various alleged acts of retaliation, to wit: denial of job advancement opportunities with the accompanying salary increases, demotion, and finally, termination of employment. The alleged retaliation was in response to plaintiff's asserted attempts to change the hiring policy of Xerox, which he believes discriminates against Mexican Americans at its Mountain View, California, plant. Plaintiff is seeking compensatory and punitive damages, in addition to back pay and reinstatement in an appropriate job position. He has been joined in the suit by the Equal Employment Opportunity Commission (hereinafter EEOC) as plaintiff-intervenor.¹

Count One of plaintiff's complaint is based on § 703(a) of Title VII of the 1964 Civil Rights Act (42 U.S.C. § 2000e-2(a)). Count Two is based on 42 U.S.C. § 1981, while Count Three originally rested upon the Unruh Civil Rights Act of California (Calif. Civil Code §§ 51 and 52). Plaintiff has conceded that a cause of action under the Unruh Act cannot be maintained (see Alcorn v. Anbro Engineering, Inc., 2 Cal.3d 493, 86 Cal.Rptr. 88, 468 P.2d 216 (1972)), but now prays leave to amend his complaint to state a cause of action for intentional infliction of emotional distress under California law as a pendant state claim (Plaintiff's Opposition to Defendants' Motion to Dismiss, page 7, September 19, 1973).

COUNT ONE

A. The Jurisdictional Issue

The Court will first examine defendants' contentions as to Count One, plaintiff's alleged cause of action under Title VII. Defendants first claim that the Court lacks jurisdiction over the subject matter since plaintiff did not properly allege in his complaint that the California Fair Employment Practices Commission (FEPC) ever had jurisdiction over plaintiff's charge as required under 42 U.S.C. § 2000e-5(c). The statute also requires that the FEPC must terminate its proceedings on the complaint and refer the charge back to the EEOC before the EEOC can act on the charge.

It was agreed by counsel in oral argument that an amendment to the complaint alleging appropriate dismissal of the action by the FEPC would remedy this jurisdictional defect; such an amendment was made by plaintiff on November 10, 1973.² Therefore, the Court now considers that it has jurisdiction of this count of plaintiff's complaint.

B. Discharge is Within the Scope of the EEOC Charge

Defendants' more important contention in regard to Count One is that the issue of Van Hoomissen's alleged discharge by Xerox is improperly before this Court. Defendants argue that, since the discharge itself was not mentioned in either charge lodged with the EEOC, it cannot be litigated here.

In his first charge to the EEOC dated August 3, 1971, plaintiff stated that he was being retaliated against for encouraging minority hiring at Xerox by the withholding of a sales bonus of $4794.00. Apparently this bonus was later paid, according to plaintiff's Complaint (XI(2)). Plaintiff also stated that he was attaching other papers to his charge outlining his allegations of retaliation by Xerox Corporation against him and the discrimination practiced by Xerox against Chicanos at the Mountain View plant.

Plaintiff did in fact attach to his charge part of a letter which he had sent to the President of the "BPG Division" of Xerox, a Mr. J. P. O'Neill, one of the named defendants herein. In that letter, plaintiff alleged that a Mr. Jim Noren, a branch manager, and also one of the individual defendants, "denied opportunities to me for personal growth" (i.e. promotional opportunities) because of plaintiff's efforts to boost minority hiring. Plaintiff also stated in that letter that he "was threatened with termination by management" because he attempted to seek "remedial action" in the matter of minority hiring (Charge of Discrimination and Attachments, Exhibits to Defendants' Motions to Dismiss and Strike, July 12, 1973).

On March 14, 1972, plaintiff filed another charge with the EEOC, stating simply: "I believe I was retaliated against and am still subject to retaliation because I have protested discrimination and have filed a charge of discrimination. This was done to me by depriving me of my full salary compensation." (Id.) Plaintiff was then allegedly fired June 30, 1972.

Although the specific event of termination was not listed by plaintiff in either EEOC charge, plaintiff did state in his attached letter to the August 3 charge that he was "threatened with termination" and alleged continuing retaliation in the March 14 charge. The EEOC thus had notice of a potential continuing threat of termination.

In Oubichon v. North American Rockwell Corporation, 482 F.2d 569, 6 E.P.D. ¶ 8732 (9th Cir. 1973), the court held that "(w)hen an employee seeks judicial relief for incidents not listed in his original charge to the EEOC, the judicial complaint nevertheless may encompass any discrimination like or reasonably related to the allegations of the EEOC charge, including new acts occurring during the pendency of the charge before the EEOC." (p. 571).

The Oubichon court cites as authority a series of cases: Danner v. Phillips Petroleum, 447 F.2d 159 (5th Cir. 1971); Tipler v. E. I. du Pont de Nemours & Co., 443 F.2d 125 (6th Cir. 1971); Sanchez v. Standard Brands, Inc., 431 F.2d 455 (5th Cir. 1970); Sciaraffa v. Oxford Paper Co., 310 F.Supp. 891 (Me. 1970), and Taylor v. Safeway Stores, Inc., 333 F.Supp. 83 (Colo.1971). Defendant argues that "(n)o one of the cases cited in Oubichon either holds or even states that a plaintiff may litigate the lawfulness of a discharge which he has not referred to in a charge filed with EEOC" (Defendants' Reply, October 6, 1973, pages 5-6). That is a correct statement of the cases — as far as it goes. In each case the discharge was specifically mentioned in the EEOC charge. However, the cited cases do not involve a challenge by defendants to the propriety of plaintiff's attempts to litigate his or her alleged discharge before the court. The question in each case is whether some claim other than the discharge is outside the scope of the original EEOC charge and thus not appropriate subject matter for litigation.

In Danner v. Phillips Petroleum, supra, the plaintiff alleged in her charge to the EEOC that she was discriminatorily fired. Her complaint, the court held, could properly encompass charges of discrimination in seniority and bidding rights as well. In Tipler v. E. I. du Pont de Nemours, supra, plaintiff was allowed to allege that his discharge was due to his active opposition to his employer's unlawful employment practices although he had simply alleged discriminatory firing in his EEOC charge. In Sanchez v. Standard Brands, Inc., supra, complainant's charge stated that she was harassed by her supervisor, who did not like Mexican or black women, and that she was discriminatorily fired. The court there held that her complaint properly included a claim that defendant had a policy of limiting both employment and promotion of all black and Mexican women. In Sciaraffa v. Oxford Paper Co., supra, women plaintiffs alleged they were discharged because of their sex when they filed with the EEOC. Their complaint before the court also alleged — properly, the court held — that there existed sex discrimination in seniority and promotion, which had in fact resulted in the subsequent discharges. In Taylor v. Safeway Stores, Inc., supra, the court held that plaintiff, who had complained to the EEOC that he was given inadequate training and supervision by Safeway and was terminated after 20 days due to his race, could properly represent a class of blacks and could request injunctive relief and back pay on their behalf.

Thus, the discharge in each case was not the issue in dispute; and in all cases plaintiffs were allowed to broaden the scope of their original EEOC charge to include issues related to, but not mentioned in, the original charge. Defendants' analysis of these cases, though factually accurate, is legally misleading.

In a number of other cases, e. g. Garneau v. Raytheon Co., 323 F.Supp. 391 (Mass.1971); Harkless v. Sweeny Independent School District, 427 F.2d 319 (5th Cir. 1970); Logan v. General Fireproofing Co., 309 F.Supp. 1096 (W.D.N. C.1969), similar extensions of the plaintiff's original EEOC charge have been allowed by the courts.

As was stated in the oft-cited case, King v. Georgia Power, 295 F.Supp. 943 (N.D.Ga.1968): "(A)llegations contained in the complaint of this suit may encompass any kind of discrimination like or related to allegations contained in the charge and growing out of such allegation during the pendency of the case before the Commission . . . (and) that range of issues that would have been the subject matter of the conciliation efforts between EEOC and the employer" (295 F.Supp. at 947).

Here, the Commission's investigation of plaintiff's claims of retaliation as outlined in his charges and attachments filed with the EEOC would have led it to examine an alleged potentially varied series of efforts by Xerox to retaliate against plaintiff caused by plaintiff's efforts to boost minority hiring. The retaliation charged by plaintiff was...