Kissi v. Wriston

D. Maryland

Kissi v. Wriston

584 F. Supp. 55, 33 Fair Empl. Prac. Cas. (BNA) 1084, 1983 U.S. Dist. LEXIS 10718

CourtDistrict Court, D. Maryland

DecidedDecember 16, 1983

DocketCiv. No. JH-82-3762

StatusPublished

Cited by1 cases

This text of 584 F. Supp. 55 (Kissi v. Wriston) is published on Counsel Stack Legal Research, covering District Court, D. Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kissi v. Wriston, 584 F. Supp. 55, 33 Fair Empl. Prac. Cas. (BNA) 1084, 1983 U.S. Dist. LEXIS 10718 (D. Md. 1983).

Pincite

Opinion

MEMORANDUM

JOSEPH C. HOWARD, District Judge.

Pending before the Court is the defendants’ joint motion to dismiss the instant Title VII suit alleging discrimination in hiring practices based on plaintiff’s race and national origin. Plaintiff, proceeding pro se, was advised of his right to respond thereto, and did so on two occasions. Defendants replied to each of plaintiff’s responses and filed a final supplemental authority in letter format in July of this year. In each instance, defendants raised the same grounds challenging the Court’s jurisdiction over the subject matter. No hearing will be necessary to resolve this issue. Local Rule 6(E).

The facts giving rise to this action are set out below. Plaintiff is a black male Ghanaian-born American citizen, who has acquired both post-graduate education (Master’s Degrees in Administration and Economics) and relative fluency in the English language. In late 1981, he applied for employment with Citibank. However, he was not offered any one of at least three positions available in the Merchant Banking Group of Citibank, nor was he hired by its Middle East and African Group. Plaintiff filed a timely charge of discrimination against “Citibank International” with the Equal Employment Opportunity Commission (“EEOC”) in May of 1982. In explaining his discrimination charge to the EEOC, plaintiff alleged that “Mr. Coster said I was not hired... because I’m originally from Ghana.” See Appendix A. The plaintiff was issued a Notice of Right to Sue, and timely filed the instant complaint.

Defendants argue that the Court lacks jurisdiction to consider this suit against [57]*57them as they were never formally named as respondents in the charges brought before the EEOC. 42 U.S.C. § 2000e-2 et seq.

Plaintiff contends in response that the two named defendants, Walter Wriston (“Wriston”) and Ruud Coster (“Coster”) are officers of Citicorp, which plaintiff, in his complaint, alleges to be the parent corporation of Citibank.

The Court notes that at no time has plaintiff indicated that he wanted to amend his complaint to sue the corporate entity which he charged in the EEOC pleadings. Indeed, in his second opposition to defendants’ motion to dismiss, plaintiff stated definitively that the suit was against Wriston and Coster. Plaintiff emphasized that Coster was “the chief defendant” as “Mr. Coster had discriminated against him, the plaintiff [sic].”

The statutory basis of this action permits suit in federal court, but only after a defending party has been brought before the EEOC, nominally if not physically. 42 U.S.C. § 2000e-5(f)(l). This requirement has been established as being jurisdictional in nature. Dickey v. Greene, 710 F.2d 1003 (4th Cir.1983) (Murnaghan, J., dissenting), citing Mickel v. South Carolina State Employment Service, 377 F.2d 239 (4th Cir.1967), cert. denied, 389 U.S. 877, 88 S.Ct. 177, 19 L.Ed.2d 166 (1967).

As Wriston is nowhere mentioned either by name or otherwise in any portion of the charges filed before the EEOC, the Court is satisfied that the complaint must be dismissed against him.

Coster, however, like the lead defendant in Dickey, was not named in the caption of the charges filed by the instant plaintiff before the EEOC, but he was clearly identified in the body of those charges.

Other circuits permit a suit in federal court to progress if the defendants were named within the body of the charges before the EEOC. See, e.g., Romero v. Union Pacific Railroad, 615 F.2d 1303 (10th Cir.1980); Shehadeh v. Chesapeake & Potomac Telephone Co., 595 F.2d 711 (D.C. Cir.1978); Glus v. G.C. Murphy Co., 562 F.2d 880 (3d Cir.1977), cert. denied, 449 U.S. 949, 101 S.Ct. 351, 66 L.Ed.2d 212 (1980). In this Circuit, however, the Dickey court’s majority opinion rejects such a liberal construction of the applicable statute.

42 U.S.C. § 2000e-5(e) also requires that notice of the charge [filed with the EEOC] “be served upon the person against whom such charge is made.” In the event that the EEOC is unable to secure from the respondent an acceptable conciliation agreement, then “a civil action may be brought against the respondent named in the charge... by the person claiming to be aggrieved ...” (emphasis added). 42 U.S.C. § 2000e-5(f)(1).

These statutory provisions leave no uncertainty that in order to satisfy the jurisdictional prerequisites of a Title VII suit, a charge must first be filed with the EEOC against the party sued... (citations omitted). This requirement is no mere technicality. As the Seventh Circuit pointed out in Bowe [Bowe v. Colgate-Palmolive Co., 416 F.2d 711 (7th Cir.1969) ], it “serves two important purposes. First it notifies the charged party of the asserted violation. Secondly, it brings the charged party before the EEOC and permits effectuation of the Act’s primary goal, the securing of voluntary compliance with the law.” Id. at 719.

Dickey v. Greene, supra, at 1005.

The Dickey majority based its decision on the holding in Mickel v. South Carolina State Employment Service, supra, finding the two cases “indistinguishable.” Dickey, supra, at 1005-1006. However, this Court finds that a significant distinction does exist between the two cases, and that the Dickey majority unnecessarily narrowed the Mickel holding in ruling as it did.

In Mickel, supra, the plaintiff job applicant had filed an EEOC charge against the South Carolina State Employment Service. Therein she charged that she had been discriminated against on the basis of her [58]*58race in that, although she had indicated a desire to work for Exide Battery Company (“Exide”), a registered prospective employer, the employment service never gave her any of the tests required by Exide and never referred her to that company for an interview. Her later suit against both the employment service and Exide led to entry of summary judgment in favor of the latter.

In affirming the entry of summary judgment, the Mickel court scrutinized the relationship between the two defendants.

There is no indication, by affidavit or otherwise, that the State Employment Service acted as Exide’s agent to implement an Exide purpose of invidious discrimination.

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