Worrell v. Uniforms To You & Co.

• Decision Date: 02 April 1987
• Docket Number: No. C-86-6422 EFL.,C-86-6422 EFL.
• Citation: 673 F. Supp. 1461
• Court: U.S. District Court — Northern District of California
• Parties: Janet L. WORRELL, Plaintiff, v. UNIFORMS TO YOU & COMPANY, an Illinois corporation; James Zimmerman; Gloria Hawkins; John Frank; Larry Allen; and Does 1 through 10, inclusive, Defendants.

673 F. Supp. 1461

Janet L. WORRELL, Plaintiff, v. UNIFORMS TO YOU & COMPANY, an Illinois corporation; James Zimmerman; Gloria Hawkins; John Frank; Larry Allen; and Does 1 through 10, inclusive, Defendants.

No. C-86-6422 EFL.

United States District Court, N.D. California.

February 27, 1987.

As Amended April 2, 1987.

Harley C. Hardesty, Jerrold Ladar, San Francisco, Cal., for plaintiff.

Alan S. Kevins, Littler, Mendelson, Fastiff & Tichy, San Francisco, Cal., Paul J. Cherner, Paul E. Bateman, Sachnoff Weaver & Rubenstein Ltd, Chicago, Ill., for defendants.

ORDER

LYNCH, District Judge.

FACTUAL BACKGROUND

On August 8, 1986, plaintiff filed a complaint against defendants in California Superior Court (No. 862466) alleging, inter alia, sexual harassment and violation of state and federal civil rights acts. The complaint stated that plaintiff had "complied with all procedural conditions to filing suit for violation of her rights under California Fair Employment and Housing Act, and the Federal Civil Rights Act of 1964." Based on the alleged violations of federal law, defendants removed the action to the United States District Court for the Northern District of California.¹

On December 29, 1986, plaintiff filed a motion with this Court to remand this action to state court because of a lack of federal subject matter jurisdiction. See 28 U.S.C. section 1447(c). Plaintiff's motion is supported by two declarations. Plaintiff's own declaration states that she had filed a charge of discrimination with the California Department of Fair Employment and Housing ("DFEH"), but that she had never filed a charge of discrimination with the United States Equal Employment Opportunity Commission ("EEOC"). The second declaration is by Bernard Knapp, plaintiff's attorney, which summarizes a telephone conversation Mr. Knapp had with a consultant at DFEH. The consultant explained that DFEH will not cross-file a charge with the EEOC when EEOC jurisdiction is not apparent from the face of the charge. The charge indicated the defendant employed only ten employees. Since EEOC jurisdiction extends only to employers with fifteen or more employees, 42 U.S.C. section 2000e(b), EEOC jurisdiction appeared lacking.²

On January 30, 1987, this Court granted plaintiff's motion to remand the instant dispute to state court. In addition, this Court agreed to consider plaintiff's motion for sanctions under Rule 11 of the Federal Rules of Civil Procedure. This Court now orders sanctions as specified below.

MERITS OF MOTIONS FILED

1. Plaintiff's motion for remand

Plaintiff's principal argument in support of her motion to remand is that 42 U.S.C. section 2000e-5(e) requires a charge of discrimination to be filed with the EEOC before the charging party may institute a suit in federal court. See 42 U.S.C. section 2000e-5(f)(1). Therefore, failure to file with the EEOC precludes suit in federal court because the filing of a charge of discrimination with the EEOC is a jurisdictional prerequisite to federal subject matter jurisdiction. This principle is clearly stated as the rule in this Circuit in Serpe v. Four-Phase Systems, Inc., 718 F.2d 935, 936 (9th Cir.1983),³ and appropriately relied on by plaintiff in her motion to remand.

Plaintiff's motion to remand carefully distinguishes the holding in Serpe from other decisions that focus on the jurisdictional nature of the timeliness of charges filed with the EEOC. In Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982), the United States Supreme Court addressed only the narrow issue of "whether the timely filing of an EEOC charge is a jurisdictional prerequisite to bringing a Title VII suit in federal court or whether the requirement is subject to waiver and estoppel." Id. at 392, 102 S.Ct. at 1132 (emphasis added). The Court held "that filing a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling." Id. at 303, 102 S.Ct. at 1132 (emphasis added).

Any uncertainty regarding the breadth of the Supreme Court's decision in Zipes should clearly have been resolved by the subsequent decision of the Ninth Circuit in Serpe as well as decisions in other circuits.⁴

2. Defendant's motion in opposition to remand

Despite the clearly narrow holding of the Court in Zipes, defendants' brief asserts in unequivocal language that Zipes held that the mere filing of a charge with the EEOC is not a jurisdictional prerequisite to filing a Title VII action in federal court.⁵ Defendants do not cite a single passage from the Court's opinion in Zipes to bolster their argument. Rather, defendants rely on a lengthy list of cases that allegedly support their interpretation of the Zipes opinion. A close reading of each case establishes conclusively that none of the cases cited support defendants' interpretation of the Zipes opinion.

Defendants rely most heavily on Gibbs v. Pierce County Law Enforcement Support Agency, 785 F.2d 1396 (9th Cir.1986). Defendants', in their brief, quote from the opinion that "Sowell's failure to file a charge with the EEOC does not raise jurisdictional considerations." Id. at 1399. Read in isolation, this language suggests that failing to file a charge with the EEOC does not preclude federal jurisdiction over a subsequently filed Title VII action. However, defendants' use of the quotation above is a gross mischaracterization of the court's opinion because plaintiff Sowell's union had filed a charge of sex discrimination with the EEOC on behalf of "aggrieved female members," id. at 1398, a group to which Sowell arguably belonged. Although the union filed its charge on April 16, 1981, and Sowell did not become an employee in the aggrieved job category until April 27, 1981, defendants had not raised that issue in the district court. Therefore, the Ninth Circuit held that Sowell's failure to file her own charge with the EEOC was not a jurisdictional concern because her union had filed on her behalf. The fact that Sowell was not employed in the aggrieved job category until after the union filed its charge with the EEOC was not an issue before the court. No reasonable interpretation of Gibbs could construe the court's opinion as abrogating the requirement of filing a charge with the EEOC as a prerequisite for federal subject matter jurisdiction.

Nor does Malone v. North American Rockwell Corp., 457 F.2d 779 (9th Cir. 1972), hold, as defendants suggest, that "the Ninth Circuit has long held that the charge filing requirements in 42 U.S.C. section 2000e-5(d) are not jurisdictional." See Defendants' Opposition to Motion for Remand at 5 n. 1. Malone merely holds that the requirement of filing a timely charge with the EEOC can be tolled so as not to deprive federal courts of jurisdiction of a Title VII action when the plaintiff initially resorts to contractual dispute resolution procedures before filing with the EEOC. Malone, 457 F.2d at 781. Defendants fail to mention that even this limited basis for preserving federal jurisdiction was ultimately rejected by the United States Supreme Court. International Union of Electrical, Radio & Machine Workers v. Robbins & Myers, Inc., 429 U.S. 229, 97 S.Ct. 441, 50 L.Ed.2d 427 (1976) (the Court held that the statutory period for filing a charge with the EEOC is not tolled during the pendency of a grievance or arbitration proceeding under a collective bargaining agreement); see also Schlei & Grossman, Employment Discrimination Law 1055 (2d ed. 1983).

Defendants cite a potpourri of other cases in support of their interpretation of Zipes that filing with the EEOC is not a jurisdictional prerequisite to federal subject matter jurisdiction.⁶ Not one of these cases support the proposition advanced by defendants. Indeed, in each case cited at least one plaintiff or interested party had filed a charge of discrimination with the EEOC.

This Court finds defendants' analysis of the cases cited to be completely unreasonable and meritless. This is especially surprising given the clear and instructive analysis of the applicable case law provided by the plaintiff in her initial brief. See Plaintiff Worrell's Notice of and Motion to Remand at 5-7. Because of defendants' unreasonable legal analysis, plaintiff sought sanctions in this action under Rule 11. Plaintiff Worrell's Reply to Defendants' Opposition to Motion to Remand at 2-5.

SANCTIONS

Federal Rule of Civil Procedure 11 ("Rule 11"), as amended in 1983, states in relevant part:

The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion, or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.... If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion, or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney's fee.

Recent decisions of the Ninth Circuit have interpreted Rule 11 as mandating sanctions in two broad areas: 1) for the filing of papers which are frivolous, and 2) for filing papers for an improper purpose. Golden Eagle Distributing Corp. v. Burroughs Corp., 801 F.2d 1531, 1537-38 (9th Cir.1986); Zaldivar v. Los Angeles, 780 F.2d 823, 830-31 (9th Cir.1986).

Violations under Rule 11 are judged according to an...