Brewer v. Republic Steel Corp.

513 F.2d 1222, 10 Fair Empl. Prac. Cas. (BNA) 606
CourtCourt of Appeals for the Sixth Circuit
DecidedApril 18, 1975
DocketNo. 74-1998
StatusPublished
Cited by31 cases

This text of 513 F.2d 1222 (Brewer v. Republic Steel Corp.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brewer v. Republic Steel Corp., 513 F.2d 1222, 10 Fair Empl. Prac. Cas. (BNA) 606 (6th Cir. 1975).

Opinion

PHILLIPS, Chief Judge.

This case presents the question whether the Ohio Civil Rights Commission [1223]*1223(Commission) is entitled to intervene in a private employment discrimination suit brought in federal court under 42 U.S.C. § 1981 and under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The District Court denied the motion to intervene but invited the Commission to participate as an amicus curiae by filing briefs and by making evi-dentiary presentations. We affirm.

In September 1971, Frank Brewer, individually and on behalf of other persons similarly situated, commenced this action in the District Court against Republic Steel Corporation and against the United Steelworkers of America and its Local Union No. 1098. The complaint alleged a variety of racially discriminatory employment practices and prayed for appropriate injunctive and monetary relief.

It appears that similar discrimination charges against Republic Steel had been lodged with the Commission. Accordingly, in December 1972 the Commission initiated an investigation of the company pursuant to Ohio Rev.Code Ann. § 4112.-04(B)(2) (1973). In March 1974, the Commission filed a motion under Fed.R. Civ.P. 24 to intervene as a plaintiff in the pending class action. District Judge Thomas D. Lambros denied the motion, holding that the Commission was not entitled to intervene as a matter of right under Rule 24(a) and declining to grant permissive intervention under Rule 24(b).

The Ohio Civil Rights Commission is the agency charged with the responsibility of administering and enforcing Ohio’s civil rights act, Ohio Rev.Code Ann. §§ 4112.01-99 (1973). The Commission receives and investigates charges of unlawful discriminatory practices, and it first must attempt to eliminate violations by means of conference, conciliation, and persuasion. If these informal methods are unsuccessful, the Commission issues a formal complaint and holds a hearing at which the Ohio Attorney General presents evidence in support of the complaint. If the Commission finds from the evidence that illegal discrimination has occurred, it may issue a cease- and-desist order, and it may grant other relief, such as reinstatement or back pay. Review or enforcement of Commission orders may be obtained only in the common pleas court, which has exclusive jurisdiction.

On appeal, the Commission first argues that it has a right to intervene under Rule 24(a)(2), which provides that intervention must be permitted if (1) “the applicant claims an interest relating to the property or transaction which is the subject of the action;” (2) the applicant “is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest;” and (3) the applicant’s interest is not adequately represented by existing parties. The Commission urges that its duty to enforce the Ohio civil rights laws, which are similar to their federal counterparts, gives rise to an interest in Mr. Brewer’s action. The Commission believes that the stare decisis effect of a judgment in the District Court may impair its ability to enforce the Ohio laws against Republic Steel and the unions in a subsequent state court proceeding. Finally, the Commission contends that its administrative resources and its access to relevant facts make it unlikely that a private plaintiff could represent its interests adequately.

We believe that the Commission has not shown the sort of direct, substantial interest in this litigation that Rule 24(a) requires. See Donaldson v. United States, 400 U.S. 517, 531, 91 S.Ct. 534, 27 L.Ed.2d 580 (1971); Diaz v. Southern Drilling Corp., 427 F.2d 1118, 1124 (5th Cir.), cert. denied, 400 U.S. 878, 91 S.Ct. 118, 27 L.Ed.2d 115 (1970); 3B J. Moore, Federal Practice 124.09—1[2] (1974). The Commission’s duty — and its interest — lies in enforcing the Ohio civil rights statutes, not the parallel federal laws. The federal and state provisions relating to employment discrimination overlap in application. Nevertheless, they do provide separate and independent avenues of relief that were not designed to be pursued through a unitary enforcement procedure. See Alexander v. Gardner-Denver Co., 415 U.S. 36, 47— [1224]*122449, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974); Cooper v. Philip Morris, Inc., 464 F.2d 9 (6th Cir. 1972). No doubt the Commission would find it convenient if the result reached in the federal suit were consistent with the Commission’s assessment of the defendants’ liability under the Ohio statutes. This is not, however, the type of interest contemplated by Rule 24(a).

In this connection, Nuesse v. Camp, 128 U.S.App.D.C. 172, 385 F.2d 694 (1967), upon which the Commission relies heavily, provides a useful comparison. In Nuesse, a Wisconsin state bank had commenced an action against the United States Comptroller of the Currency seeking to prevent approval of a national bank’s application to open a branch near the plaintiff bank’s office. The complaint was based upon 12 U.S.C. § 36(c), which, in an attempt to promote competitive equality between state and national banks, permits branching of national banks only if state banks are permitted to branch under state law. Plaintiff took the position that Wisconsin law generally prohibits branching by state banks. The Wisconsin Commissioner of Banks moved to intervene, alleging that he was charged with enforcing all Wisconsin banking laws.

In the course of its opinion holding that the Commissioner had a right to intervene under Rule 24(a), the court addressed the following comments to the interest requirement:

We not only have the greater impetus to intervention that inheres in administrative cases, but in addition the “interest” of the state commissioner is underlined by the circumstance that the regulation of national banking is an area in which Congress, in the exercise of delegated federal power, has for various policy reasons decided to adopt and incorporate state law on issues of common concern. This admixture of national and state policies, attaching national legal force to the state policy, yields the corollary that a state official directly concerned in effectuating the state policy has an “interest” in a legal controversy involving the Comptroller which concerns the nature and protection of the state policy.
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Bluebook (online)
513 F.2d 1222, 10 Fair Empl. Prac. Cas. (BNA) 606, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brewer-v-republic-steel-corp-ca6-1975.