Watson v. Limbach Company

Decision Date27 October 1971
Docket NumberCiv. No. 69-171.
Citation333 F. Supp. 754
PartiesFrank W. WATSON, Jr., Plaintiff, v. LIMBACH COMPANY et al., Defendants.
CourtU.S. District Court — Southern District of Ohio

Irwin W. Barkan, Columbus, Ohio, for plaintiff.

Charles D. Minor, Columbus, Ohio, for Columbus Joint Apprenticeship Committee of the Plumbing and Pipefitting Industry.

Dennis D. Grant, Columbus, Ohio, for Limbach Co.

N. Victor Goodman, Columbus, Ohio, for Local #189.

George L. Jenkins, Asst. Atty. Gen. of Ohio, Columbus, Ohio.

OPINION AND ORDER

CARL B. RUBIN, District Judge.

This matter is before the Court on the motions to dismiss of the defendants Limbach Company, Local 189 of the Plumbers & Steamfitters International Union, AFL-CIO (Local 189), and the Joint Apprenticeship Council of Local 189, Plumbers & Steamfitters International Union (Joint Apprenticeship Council) and the memoranda of the parties.

This action is brought under the provisions of Title 42, United States Code, Section 2000e et seq. The complaint alleges the following unlawful employment practices:

1. In August of 1967, plaintiff applied for membership in Local 189's apprenticeship program, but was refused admittance solely because of his race and color.
2. In August of 1967, plaintiff applied to the Limbach Company for employment as an apprentice plumber, and he was refused employment solely because of his race and color.
3. In September of 1967, plaintiff applied to the Joint Apprenticeship Council for admission to Local 189's apprenticeship program. He subsequently was administered an "Aptitude Test" designed to exclude him from the program solely because of his race and color. Plaintiff passed the test, but the Limbach Company, Local 189 and the Joint Apprenticeship program refused to call him into the apprenticeship program solely because of his race and color.

The complaint further alleges plaintiff has suffered damages as a direct and proximate result of defendants' unlawful employment practices and that he "will continue to suffer irreparable injury from defendants' policy, practice and custom of discrimination against qualified persons of the Negro race, with respect to employment, referral for employment, admission to union membership and admission to union apprenticeship programs." (Complaint, paragraph 16)

On August 20, 1968, plaintiff filed charges of discrimination against defendants with the Equal Employment Opportunities Commission (EEOC).1 The EEOC referred these charges, consistent with its general procedures and regulations to the Ohio Civil Rights Commission. On November 15, 1968, plaintiff requested that the EEOC assume jurisdiction of his case and on May 1, 1969, his counsel requested the Commission issue a Notice of Suit Letter. The EEOC issued the requested letter on May 5, 1969, and the present action was commenced on June 3, 1969.

Defendants contend the Court lacks jurisdiction over the subject matter of the action and that the complaint fails to state a claim upon which relief can be granted for the following reasons:2

1. The complaint does not invoke the jurisdiction of the Court because plaintiff did not file a charge of discrimination with the Ohio Civil Rights Commission (OCRC) prior to filing his charge with the Equal Employment Opportunities Commission (EEOC), thus failing to comply with the requirements of 42 U.S.C. § 2000e-5(b).
2. The EEOC failed to find reasonable cause that plaintiff's charges of unlawful employment practices were true and such a finding is a jurisdictional prerequisite for maintaining an action under the provisions of 42 U.S.C. Section 2000e-5(a).
3. The EEOC did not make an effort to obtain voluntary compliance with the mandate of subchapter 2000e as required by 42 U.S.C. 2000e-5(a), 2000e-5(e).
4. The complaint herein was not filed within sixty days after plaintiff filed a charge with the EEOC as required by 42 U.S.C. Sections 2000e-5(a), 2000e-5(e).
5. Plaintiff did not file a charge of unlawful employment practices with the EEOC within 210 days after the alleged unlawful employment practices occurred as required by 42 U.S.C. Section 2000e-5(d).

Each of these contentions will be discussed separately below.

I

As the first ground advanced in support of their motions to dismiss defendants assert that plaintiff failed to comply with the filing requirements of 42 U.S.C. § 2000e-5(b).3 Defendants are not disputing that the EEOC did in fact defer to the Ohio Civil Rights Commission for the sixty day period required by the statute. What the defendants are instead actually questioning is whether the deferral procedure adopted by the EEOC properly comports with the statutory policy set forth in § 2000e-5(b).

In the present case plaintiff filed his charge with the EEOC on August 20, 1968. The EEOC referred the charge to the Ohio Civil Rights Commission on or about that same date. After the passage of more than sixty days plaintiff requested that the EEOC reassert jurisdiction over his charge and the Commission did so on or about November 15, 1968. The EEOC did not require the plaintiff to file a new charge but reasserted jurisdiction over the charge filed on August 20, 1968. This procedure was in conformity with the practices and regulations of the Commission. The defendants are, in effect, challenging the Commission's procedure and argue that plaintiff's filing with the EEOC on August 20, 1968 was a nullity because § 2000e-5(b) requires that the complainant file a charge with a state or local agency before he files with the Commission. Defendants' argument continues that since the plaintiff initially filed improperly with the EEOC, the Commission never had jurisdiction over his charge and therefore lacked the authority to defer it to the state agency and to later reassert jurisdiction over it again.

Although courts are not unanimous in their views towards this question, this Court holds that the deferral procedure adopted and employed by the EEOC is within the intent of the statute and was properly utilized in the handling of plaintiff's charge.

It has been recognized in the Sixth Circuit that Title VII of the Civil Rights Act of 1964 leaves a burden on laymen, often unschooled in the law and the art of pleading, to assert vital, federally protected rights. See, Tipler v. E. I. duPont deNemours and Co., 443 F.2d 125, 131 (6th Cir. 1971); Blue Bell Boots, Inc. v. Equal Employment Opportunity Commission, 418 F.2d 355 (6th Cir. 1969); also see, Graniteville Company v. Equal Employment Opportunities Commission, 438 F.2d 32 (4th Cir. 1971). The EEOC has also recognized that occasionally these unschooled laymen, unaware that a state or local commission has original jurisdiction over Title VII complaints, file their charge initially with the EEOC. To correct these violations of § 2000e-5(b), the EEOC has adopted a curative regulation, 29 C.F.R. § 1601.12(b).4

In adopting these regulations the EEOC enunciated as its policy an intent that the filing procedures on the referral of charges to state and local agencies be simplified so that confused laymen could "* * * avoid the accidental forfeiture of important Federal rights." 29 C.F.R. § 1601.12(a). It is well settled that the practical interpretation of a statute by the executive agency charged with its administration, while not necessarily conclusive on the courts, is entitled to the highest respect. See, United States v. City of Chicago, 400 U.S. 8, 91 S.Ct. 18, 27 L.Ed.2d 9 (1971); Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965); Power Reactor Development Co. v. Electricians, 367 U.S. 396, 81 S.Ct. 1529, 6 L. Ed.2d 924 (1961); Allison v. United States, 426 F.2d 1324 (6th Cir. 1970); Lawson Milk Co. v. Freeman, 358 F.2d 647 (6th Cir. 1966); City of Tullahoma v. Coffee County, Tennessee, 328 F.2d 683 (6th Cir. 1964), cert. den. 379 U.S. 989, 85 S.Ct. 698, 13 L.Ed.2d 609 (1965); also see, International Chemical Workers Union v. Planters Manufacturing Company, 259 F.Supp. 365 (N.D.Miss.1966), and cases cited at p. 366 and n. 4. And the Supreme Court has specifically held that EEOC interpretations of the Civil Rights Act are entitled to the "great deference" normally afforded such administrative agencies. Griggs v. Duke Power Co., 401 U.S. 424, 433-434, 91 S.Ct. 849, 28 L.Ed. 158 (1971).

A substantial body of case law supports the procedures adopted by the EEOC as within the contemplation of § 2000e-5(b) of the statute. A case very similar to the one at bar was before the court in Bremer v. St. Louis Southwestern Railroad Company, 310 F.Supp. 1333 (E.D.Mo.E.D.1969). In that case plaintiff brought a suit for damages under 28 U.S.C. § 1343 alleging her statutory right to be free from discrimination in employment because of sex pursuant to Title VII of the Civil Rights Act. Defendant moved to dismiss alleging among other grounds that plaintiff failed to comply with the procedures required by § 2000e-5(a) and (b), especially that plaintiff failed to file a timely charge with the EEOC. Plaintiff in that case filed her charges with the EEOC on April 23, 1966. The EEOC referred these charges to the Missouri Commission on Human Rights on May 4, 1966. On September 2, 1966, plaintiff requested the EEOC to reassert its jurisdiction and the EEOC did so. Defendant moved the District Court to dismiss plaintiff's complaint for the same reason advanced by the defendants at bar. Chief Justice Harper, after noting that 29 C.F.R. 1601.12 et seq., supra "* * * negate defendant's contentions," overruled the motion to dismiss, holding:

Section 1601.12 of the regulations governs referrals to state and local authorities. * * * All of the procedures in this case which preceded the adoption of § 1601.12 were done in accordance with the established procedure and regulations of the EEOC. On September 2nd, the plaintiff did request the EEOC to assert its jurisdiction. It is, therefore, September 2, 1966, on which the plaintiff's charge was filed. The present
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