Equal Employment Opportunity Commission v. Western Metal Specialty, Inc.

422 F. Supp. 49, 1976 U.S. Dist. LEXIS 12367, 13 Empl. Prac. Dec. (CCH) 11,393, 13 Fair Empl. Prac. Cas. (BNA) 1569
CourtDistrict Court, E.D. Wisconsin
DecidedNovember 10, 1976
DocketCiv. A. No. 75-C-678
StatusPublished

This text of 422 F. Supp. 49 (Equal Employment Opportunity Commission v. Western Metal Specialty, Inc.) is published on Counsel Stack Legal Research, covering District Court, E.D. Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Equal Employment Opportunity Commission v. Western Metal Specialty, Inc., 422 F. Supp. 49, 1976 U.S. Dist. LEXIS 12367, 13 Empl. Prac. Dec. (CCH) 11,393, 13 Fair Empl. Prac. Cas. (BNA) 1569 (E.D. Wis. 1976).

Opinion

REYNOLDS, Chief Judge.

Plaintiff, the Equal Employment Opportunity Commission (hereinafter “Commission”), has brought this employment discrimination action under 42 U.S.C. § 2000e, et seq., and alleges jurisdiction under 28 U.S.C. §§ 451, 1343, and 1345. The Commission charges that the defendant employer, Western Metal Specialty, Inc., a Wisconsin corporation engaged in the manufacture of sheet metal products, has intentionally engaged in unlawful employment practices at its Milwaukee facility in violation of § 703 of Title VII by failing to provide leaves of absence to pregnant women on the same basis as leaves of absence are provided to employees for other medical reasons, and for failing to provide benefits and duration of benefits for pregnancy-related absences on the same basis as benefits are provided for other temporary disabilities, all of which is alleged to have the effect of depriving women of equal employment opportunities. Plaintiff seeks a permanent injunction enjoining the defendant from so discriminating, an order requiring the defendant to institute policies and programs which would eradicate the effects of past and present unlawful employment practices, and an order awarding back pay to those persons adversely affected by the allegedly unlawful employment practices. The defendant has moved the court, pursuant to Rule 12(b), F.R.Civ.P., to dismiss the action for lack of subject matter jurisdiction and, in the alternative, to strike, pursuant to Rule 12(f), F.R.Civ.P., the allegation in the complaint regarding the sick leave plan. For the following reasons, defendant’s motion to dismiss the action and, in the alternative, to strike certain allegations from the complaint will be denied.

A brief resume of the chronology of the events here is in order. On November 28, 1972, Earlean Sims filed a sex discrimination charge against the defendant employer with the Wisconsin Department of Industry, Labor and Human Relations (hereinafter “DILHR”). On December 11, 1972, a letter from Ms. Sims and a copy of this charge were received at the Commission’s [51]*51Milwaukee district office. On December 14, 1972, the Commission deferred the matter to DILHR, Division of Equal Rights, for a period of sixty days as required by 42 U.S.C. § 2000e-5(e), which provides:

“In the case of an alleged unlawful employment practice occurring in a State * * * which has a State or local law prohibiting the unlawful employment practice alleged and establishing or authorizing a State or local authority to grant or seek relief from such practice, * * * no charge may be filed under subsection (b) of this section by the person aggrieved before the expiration of sixty days after proceedings have been commenced under the State or local law * * *

On February 15, 1973, the plaintiff Commission sent notice of the charge, which defendant received on February 16, 1973. On November 4, 1974, the Commission issued a determination letter stating that there was probable cause to believe that certain of defendant’s employment practices violated Title VII, and on November 19, 1975, the Commission filed the complaint in this action.

As the basis for its motion to dismiss, the defendant contends that the plaintiff Commission has failed to meet two jurisdictional prerequisites to the maintenance of this action. The first alleged defect is the 10-day requirement found in 42 U.S.C. § 2000e-5(b) that—

“Whenever a charge is filed by or on behalf of a person claiming to be aggrieved, or by a member of the Commission, alleging that an employer * * * has engaged in an unlawful employment practice, the Commission shall serve a notice of the charge * * * on such employer * * * within ten days * He *

The second alleged jurisdictional defect is that the Commission did not initiate the instant civil action within the 180-day period prescribed in 42 U.S.C. § 2000e-5(f)(2).1

As to the first alleged defect, the 10-day requirement, there is no factual dispute as to whether or not the defendant received actual notice of the charges; the parties agree that defendant was served on February 16, 1973. What is disputed is the legal question of what event tolls the filing of the charge within the meaning of 42 U.S.C. § 2000e-5(b). The plaintiff contends that the charge was filed with the Commission on February 15, 1973, the date the Commission claims it took jurisdiction over the matter from the state agency, DILHR, and thus claims that the defendant was timely served within one day. The defendant asserts that the Commission took jurisdiction over the matter from the state on January 28, 1973, which they compute by adding sixty days to November 28, 1972, the date the complaint was lodged with DILHR. Defendant argues that because more than ten days elapsed from the automatic filing of the charge on January 28, 1973, until defendant was served on February 16, 1973, the jurisdictional requirement was not met.

At the outset, the Court notes that there is no problem with the “automatic” filing of [52]*52a charge by the Commission when prior state proceedings are involved. The U. S. Supreme Court has expressly recognized that the Commission may properly hold a complaint in suspended animation and automatically file it upon termination of the state proceedings. Love v. Pullman Co., 404 U.S. 522, 526, 92 S.Ct. 616, 618, 30 L.Ed.2d 679 (1972). There the Court stated:

“We see no reason why further action by the aggrieved party should be required. The procedure complies with the purpose both of § 706(b), [42 U.S.C. § 2000e-5(b)] to give state agencies a prior opportunity to consider discrimination complaints, and of § 706(d), [42 U.S.C. § 2000e-5(d)] to ensure expedition in the filing and handling of those complaints. The respondent makes no showing of prejudice to its interests. To require a second ‘filing’ by the aggrieved party after termination of state proceedings would serve no purpose other than the creation of an additional procedural technicality.”

The question here is whether the statutory scheme requires that the period automatically tolled is necessarily only sixty days in duration and, if so, whether that sixty days is necessarily tolled from the date the state agency assumed jurisdiction. I do not find it necessary to reach the latter question. A reading of 42 U.S.C. § 2000e-5

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422 F. Supp. 49, 1976 U.S. Dist. LEXIS 12367, 13 Empl. Prac. Dec. (CCH) 11,393, 13 Fair Empl. Prac. Cas. (BNA) 1569, Counsel Stack Legal Research, https://law.counselstack.com/opinion/equal-employment-opportunity-commission-v-western-metal-specialty-inc-wied-1976.