Ray Johnson v. Seaboard Air Line Railroad Company, Charles W. Walker v. Pilot Freight Carriers, Inc.

405 F.2d 645

• Court: Court of Appeals for the Fourth Circuit
• Decided: March 24, 1969
• Docket: 12154, 12155
• Status: Published

Opinions

CRAVEN, Circuit Judge:

Whether an actual attempt by the Equal Employment Opportunity Commission to eliminate an unlawful employment practice is a jurisdictional prerequisite to a suit by an individual plaintiff¹ under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(e) is the question presented by these appeals. We think not and reverse the orders of the district judge granting the defendants’ motions to dismiss.

Ray Johnson, on January 14, 1966, filed a charge of employment discrimination with the Commission against Seaboard Coast Line Railroad Company. The Commission’s investigation of the charge showed that Johnson, who had been employed by Seaboard as a porter from 1940 to 1965, was dismissed, ostensibly because of a conviction for a misdemean- or ; that the offense occurred while Johnson was off duty and not on Seaboard’s property and occasioned no loss of time from his job; that Johnson had written letters protesting Seaboard’s racial discrimination to the President’s Committee on Equal Employment, the National Railroad Adjustment Board, and the United States Attorney General; and that Seaboard’s agents were uncooperative when questioned by the Commission’s investigator about company practices and regulations used to discipline white employees and about conduct standards used for Seaboard’s employees generally.² On the basis of these findings, the Commission determined, on July 18, 1966, that there was reasonable cause to believe that Seaboard had violated Title VII in dismissing Johnson. On August 8, 1966, the Commission notified Johnson by letter that due to its heavy work load it had been “impossible to undertake or to conclude conciliation efforts,” but that he was entitled to institute a civil action within 30 days of receipt of the letter.³ Johnson filed his complaint in the District Court for the Western District of North Carolina on September 7, 1966.

The facts in No. 12,155 are substantially similar. Charles Walker filed his charge with the Commission on February 28, 1966, and amended it on March 15, 1966. On July 20, 1966, the Commission determined that reasonable cause existed in Walker’s case also, basing the decision on its investigation which showed that Walker’s application to Pilot Freight Carriers, Inc. for employment as an over-the-road truck driver was denied; that no Negroes were currently employed by Pilot and had been employed in the past only in casual positions; that Pilot hired five drivers after Walker’s application was denied; that of the five, two had applied after Walker, and only one of the five met the company’s employment qualifications; and that Pilot made no effort to determine Walker’s qualifications. . A letter, similar in all respects to the one sent Johnson, was mailed to Walke: by the Commission on August 5, 1966, and on August 23, 1966, Walker filed his complaint.

On the basis of a memorandum of decision filed January 25, 1968, the District Court for the Western District of North Carolina dismissed the complaints of both Johnson and Walker on the sole ground that “Congress intended that conciliation efforts be made prior to the institution of civil actions and that this is a jurisdictional prerequisite to the right to file a civil action.”

It seems clear to us that the statute, on its face, does not establish an attempt by the Commission to achieve voluntary compliance as a jurisdictional prerequisite. Quite obviously, 42 U.S.C. § 2000e-5(a) does charge the Commission with the duty to make such an attempt if it finds reasonable cause, “but it does not prohibit a charging party from filing suit when such an attempt fails to materialize.”⁴ Mondy v. Crown Zellerbach Corp., 271 F.Supp. 258, 262 (E.D.La.1967). Subsection (e), which contains the authorization for civil actions, provides only that the action may not be brought unless “the Commission [had] been unable to obtain voluntary compliance.”⁵

The defendants argue that Section 2000e-5 must be read as a whole and that, so read, the use of the word, “unable,” in subsection (e) implies that the duty imposed by subsection (a) must be fully performed before a civil action is authorized. We do not agree. “Unable” is not defined by statute to give it a narrow or special meaning. We think “unable” means simply unable — and that a commission prevented by lack of appropriations and inadequate staff⁶ from attempting persuasion is just as “unable” to obtain voluntary compliance as a commission , frustrated by the recalcitrance of an employer or a union. Contra, Dent v. St. Louis-San Francisco Ry. Co., 265 F.Supp. 56, 61 (N.D.Ala.1967). At most, we think, a reading of the two sections together means only that the Commission must be given an opportunity to persuade before an aggrieved person may resort to court action. See Stebbins v. Nationwide Mut. Ins. Co., 382 F.2d 267 (4th Cir. 1967); Mickel v. South Carolina State Employment Serv., 377 F.2d 239 (4th Cir. 1967).

If the plain language of the statute will not support their contention, the defendants, relying heavily on Dent v. St. Louis-San Francisco Ry. Co., supra, urge that its legislative history shows a congressional intent to require that civil actions under Title VII be preceded by informal efforts to achieve voluntary compliance. However, the legislative history is not so clear as the defendants would have it. Hall v. Werthan Bag Corp., 251 F.Supp. 184, 186 (M.D.Tenn.1966). The bill underwent extensive revisions culminating in a leadership compromise,⁷ and “a cogent explanation of the policies underlying the compromise was never offered.” Comment, 32 U.Chi.L.Rev. 430, 432 (1965).

Our examination of the bill’s history indicates that either side can find statements that, taken out of context, support their position.⁸ For example, during the debate that we regard as most enlightening on the issue at hand, totally inconsistent explanations of the bill were offered by its proponents and its opponents. Senator Ervin remarked,

“It may not mean anything to the Senator from New Jersey [Mr. Case] but the bill certainly puts the key to the courthouse door in the hands of the Commission. This is true because the aggrieved party cannot sue in the Federal courts unless the Commission first finds that there is .reasonable cause to believe the charge is-true and then fails to adjust th$j matter by conciliation.”

110 Cong.Rec. 14188 (1964). Apparently in reply to Senator Ervin, Senator Javits said,

“The fatal defect of the amendment is that the provision it would amend is not the key to the courtroom door, because the Commission does not have to find that the complaint is a valid one before the complainant individually can sue * * The only thing this title gives the Commission is time in which to find that there has been a violation and time in which to seek conciliation. * * *

“But Mr. President, that is not a condition precedent to the action of taking a defendant into court. A complainant has an absolute right to go into court, and this provision does not affect that right at all.”

Id. at 14191. And Senator Humphrey’s opinion was, “The individual may proceed in his own right at any time. He may take his complaint to the Commission, he may bypass the Commission, or he may go directly to court.” Id. at 14188.

Such diversity of opinion, without more, destroys defendants’ contention that the legislative history compels their interpretation of the Act. Moreover, none of these statements was directed to the jurisdictional question. They were, instead, directed to Senator Ervin’s amendment No. 590 which was designed to strike out that portion of Title VII that permits a member of the Commission to file a charge of discrimination against an employer.⁹ Senator Ervin’s argument was that this provision entrusted the Commission with the roles of both prosecutor and judge; the opponents of the amendment argued that since the Commission was enpowered only to determine probable cause, no due process problem would be occasioned by this dual role. It was in reply to that argument that Senator Ervin, in an effort to point out that the Commission’s power was not so minimal as the bill’s proponents suggested, made the statement quoted above. No one’s attention was more than tangentially directed to the problem of jurisdictional prerequisites for a civil action.¹⁰ If we were compelled to choose among the statements, we would be more inclined to accept the statements of Senators Humphrey and Javits, indulging the inference that those who voted with them to defeat the amendment must have understood the bill in the same manner as they.

The defendants also rely on an amendment¹¹ offered by Representative Celler designed to “make it clear that an attempt would have to be made to conciliate * * * before an action could be brought in the district court.” 110 Cong.Rec. 2566 (1964) (remarks of Rep. Celler). However, at the time this amendment was adopted, the “enforcement provisions of Title VII were patterned after the provisions of the National Labor Relations Act; the Equal Employment Opportunity Commission was to have authority to issue cease-and-desist orders and to seek enforcement of those orders in the courts, and the emphasis was upon protection of the public interest and upon obtaining broad compliance with the provisions of the title.” Hall v. Werthan Bag Corp., 251 F.Supp. 184, 186 (M.D.Tenn.1966). Subsequently, the Commission’s powers of enforcement were deleted from the statute and the “emphasis shifted toward the vindication of individual rights and the burden of enforcement shifted from the Commission to the ‘person aggrieved.’ ” Ibid. See also, Berg, Equal Employment Opportunity Under the Civil Rights Act of 1964, 31 Brooklyn L.Rev. 62, 85-86 (1964-1965). We think that the shift in emphasis deprives the Celler amendment of much of the weight which we would otherwise accord it. Contra, Dent v. St. Louis-San Francisco Ry. Co., supra, 265 F.Supp. at 59.

We have not ignored statements made in Congress after the shift had occurred. While we concede that these statements place heavy emphasis on the desirability of voluntary compliance, we think that they fall far short of establishing congressional intent that actual conciliatory efforts by the Commission are a jurisdictional prerequisite to initiating court action.¹² Indeed, two of the remarks relied on were made during the course of the debate on Senator Ervin’s amendment No. 590, referred to above.¹³

However unclear the statute and its history are with respect to the jurisdictional problem at hand, the policies and purposes of the Act are clearly discernable.¹⁴ There can be no doubt that Congress intended to attack the problem of discriminatory employment practices by first seeking voluntary compliance by the nation’s employers. But neither can there be any doubt that Congress intended the remedies provided to be timely and effective. Thus, subsections (b) and (c) of 42 U.S.C. § 2000e-5 allow the individual aggrieved or the Commission to proceed after state authorities have been given 60 days in which to act. And subsection (e) allows the Commission to give an aggrieved individual notice of his right to file a civil action when it has been unable within 30 days to achieve voluntary compliance.¹⁵ Obviously, to the extent these policies conflict they must be reconciled in light of the statute’s overriding purpose. To give ample scope to the policy in favor of voluntary compliance, we have held, and now affirm, that the Commission can not be bypassed entirely. Stebbins v. Nationwide Mut. Ins. Co., 382 F.2d 267 (4th Cir. 1967); Mickel v. South Carolina State Employment Serv., 377 F.2d 239, 241 (4th Cir. 1967). To give ample scope to the policy in favor of timely remedial action, we now hold that the individual aggrieved may file a suit in the district court when he has received the statutory notice from the Commission and that he need not await an actual attempt by the Commission to achieve voluntary compliance. Mondy v. Crown Zellerbaeh Corp., 271 F.Supp. 258 (E.D.La.1967); Moody v. Albermarle Paper Co., 271 F.Supp. 27 (E.D.N.C.1967); Quarles v. Philip Morris, Inc., 271 F.Supp. 842 (E.D.Va.1967); see Evenson v. Northwest Airlines, Inc., 268 F.Supp. 29 (E.D.Va.1967); Hall v. Werthan Bag Corp., 251 F.Supp. 184 (M.D.Tenn.1966). Contra, Dent v. St. Louis-San Francisco Ry. Co., 265 F.Supp. 56 (N.D.Ala.1967); see Choate v. Caterpillar Tractor Co., 274 F.Supp. 776 (S.D.Ill.1967).

In Quarles v. Philip Morris, Inc., 271 F.Supp. 842, 847 (E.D.Va.1967), Judge Butzner said:

“The plaintiff exhausted administrative remedies and satisfied the requirements of the Act by filing a complaint with the Commission and awaiting its advice. He is not required to show that the Commission has endeavored to conciliate. To insist that he do so, would require him to pursue an administrative remedy which may be impossible to achieve. If the Commission makes no endeavor to conciliate, the remedy is ineffective and inadequate.

“In this circuit the rule is clear. Judge Sobeloff wrote, in Marsh v. County School Bd. of Roanoke Co., Va., 305 F.2d 94, 98 (4th Cir. 1962):

‘The requirement that a plaintiff shall exhaust his administrative remedies before applying for judicial relief presupposes that the remedy to which he is referred is an effective one. As we said in McCoy v. Greensboro City Board of Education, 283 F.2d 667, 670 (4th Cir. 1960), “It is well settled that administrative remedies need not be sought if they are inherently inadequate or are applied in such a manner as in effect to deny the petitioners their rights.’ ”

The shift in the Congress from a rationale of national official enforcement to a policy of private individual vindication is, we think, of controlling importance.¹⁶ While the emphasis of the bill was on protection of the public interest, a greater emphasis on voluntary compliance was reasonable. But with the present emphasis on private vindication of individual rights, fairness to an aggrieved individual demands that timeliness assume a greater importance and excessive delays cannot be justified.¹⁷

There is no corresponding unfairness to employers or unions for the reason that there is no right to persist in invidious discrimination. All that defendants ask is not to be sued before being persuaded to comply with the law. They can, of course, do so without persuasion, or may be persuaded to do so without resort to the complaint procedure.¹⁸

Reversed.

1 . The district court did not consider the question of whether and to what extent an individual might prosecute a class action. We thus express no opinion on the question. Compare Hall v. Werthan Bag Corp., 251 F.Supp. 184, 187-188 (M.D.Tenn.1966), with Mondy v. Crown Zellerbach Corp., 271 F.Supp. 258, 264-266 (E.D.La.1967).

2 . The superintendent of Seaboard’s Georgia Division indicated that disciplinary records were not available for inspection by the Commission’s investigator. 42 U.S.C. § 2000e-8(a) provides that “the Commission * * * shall * * * have access to * * * any evidence of any person being investigated * * * that relates to unlawful employment practices * * * and is relevant to the charge under investigation.”

3 . The text of the Commission’s letter to Johnson is as follows.

“Due to the heavy workload of the Commission, it has been impossible to undertake or to conclude conciliation efforts in the above matter as of this date. However, the conciliation activities of the Commission will be undertaken and continued.

“Under the provisions of Section 706 (e) of Title VII of the Civil Rights Act of 1964, the Commission must notify you of your right to bring an action in Federal District Court within a limited time after the filing of a complaint.

“This is to advise you that you may within thirty days of the receipt of this letter, institute a civil action in the appropriate Federal District Court. If you are unable to retain an attorney, the Federal Court is authorized in its discretion, to appoint an attorney to represent you and to authorize the commencement of the suit without payment of foes, costs or security. If you decide to institute suit and find you need such assistance, you may take this letter, along with the enclosed Commission determination of reasonable cause to believe Title VII has been violated, to the Clerk of the Federal District Court nearest to the place where the alleged discrimination occurred, and to request that a Federal District Judge appoint counsel to represent you.

“Please feel free to contact the Commission if you have any questions about this matter.”

4 . 42 U.S.C. § 2000e-5(a):

“Whenever it is charged in writing under oath by a person claiming to be aggrieved, or a written charge has been filed by a member of the Commission where he has reasonable cause to believe a violation of this subchapter has occurred * * * that an employer, employment agency, or labor organization has engaged in an unlawful employment practice, the Commission shall furnish such employer, employment agency, or labor organization * * * with a copy of such charge and shall make an investigation of such charge, provided that such charge shall not be made public by the Commission. If the Commission shall determine, after such investigation, that there is reasonable cause to believe that the charge is true, the Commission shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.”

5 . 42 U.S.C. § 2000e-5(e):

“If within thirty days after a charge is filed with the Commission or within thirty days after expiration of any period of reference under subsection (c) of this section (except that in either case such period may be extended to not more than sixty days upon a determination by the Commission that further efforts to secure voluntary compliance are warranted), the Commission has been unable to obtain voluntary compliance with this subchapter, the Commission shall so notify the person aggrieved and a civil action may, within thirty days thereafter, be brought against the respondent named in the charge (1) by the person claiming to be aggrieved, or (2) if such charge was filed by a member of the Commission, by any person whom the charge alleges was aggrieved by the alleged unlawful employment practice * * *

6 . During the first six months of the Commission’s operation more than 1,500 charges said to merit investigation were culled from the several thousand that were filed. At that time the Commission had fewer than 20 full time investigators and only two full time conciliators. At the present time, 1,400 charges are awaiting investigation, and 375 cases are awaiting conciliation. See Rosen, Book Review, 81 Harv.L.Rev. 276 at 282 and 286 n. 33 (1967).

7 . “As with any new statute, Title VII leaves many questions unanswered. They are especially abundant in the procedural area because of the last minute creation of a new enforcement system for Title VII as the basis for the so-called ‘leadership compromise’ necessary to obtain Republican votes for Senate cloture over debate on the entire Civil Rights Act.” Walker, Title VII: Complaint and Enforcement Procedures and Relief and Remedies, 7 B.C.Ind. & Com. B.Rev. 495, 523-524 (1966).

8 . The court in Mondy v. Crown Zellerbach Corp. reached the same conclusion. 271 F.Supp. 258, 262 (E.D.La.1967).

9 . This provision is now found in 42 U.S.C. §2000e-5(a).

10 . No issue more closely in point was debated after the compromise version of the bill was presented to the Senate, perhaps because debate was severely limited shortly thereafter when cloture was invoked.

11 . The bill, as originally presented to the House of Representatives, expressly provided that a civil action could be brought in advance of conciliation efforts if warranted by the circumstances. Representative Celler’s amendment deleted the language, “or in advance thereof if circumstances warrant.”

12 . Ambiguous as the statements seem to us, we reprint them here out of fairness to the defendants:

“We have leaned over backwards in seeking to protect the possible defendants by means of all the procedures referred to — those of conciliation, arbitration, and negotiation.” 110 Cong. Ree. 14190 (remarks of Senator Morse).

“If efforts to secure voluntary compliance fail, the person complaining of discrimination may seek relief in a federal district court.” Id. at 12617 (remarks of Senator Muskie).

“An aggrieved party may initiate action under the provisions of the bill on a federal level, In such cases, provision is made for Federal conciliation in an effort to secure voluntary compliance with the law prior to court action.” Id. at 12690 (remarks of Senator Salton-stall).

“The point of view of this section is to permit one who believes he has a valid complaint to have it studied by the Commission and settled through conciliation if possible. The Court procedure can follow.

“In Massachusetts, we have had experience with an arrangement of this sort for 17 years and as I recall, approximately 4,700 unfair practice complaints have been brought before our Massachusetts Commission Against Discrimination. Only two of them have been taken to court for adjudication. That procedure is the basis and theory of this part of the bill and that is why I support it.” Id. at 14191 (remarks of Senator Saltonstall).

“Those of us who have worked upon the substitute package have sought to simplify the administration of the bill * * * in terms of seeking a solution by mediation of disputes, rather than forcing every case before the Commission or into a court of law.

*****

“We have placed emphasis on voluntary conciliation — not coercion.

“The amendment of our substitute leaves the investigation and conciliation functions of the Commission substantially intact.

* * * * sp

“Section 706(e) provides for suit by persons aggrieved after conciliation has failed.” Id. at 12722-23 (remarks of Senator Humphrey).

13 . For a more thorough analysis of the statute’s legislative history, see Vaas, Title VII: Legislative History, 7 B.C. Ind. & Com.L.Rev. 431 (1966).

14 . The report of the House Committee on the Judiciary stated,

“The purpose of this title is to eliminate, through the utilization of formal and informal remedial procedures, discrimination in employment based on race, color, religion, or national origin * * *.

“Section 701(a) sets forth a congressional declaration that all persons within the jurisdiction of the United States have a right to the opportunity for employment without discrimination on account of race, color, religion, or national origin. It is also declared to be the national policy to protect the right of persons to be free from such discrimination.”

H.R.Rep. No. 914, 88th Cong., 2d Sess. (1964), U.S.Code Cong. &. Admin.News 1964, p. 2401. See also, 42 U.S.C. § 2000e(b).

15 . Although we have pointed out the danger in relying too heavily on the rather chaotic legislative history of this bill, we think it worth mentioning in passing that the policy in favor of timely relief was present early in the bill’s history. The Republican members of the House Committee on the Judiciary stated in their addendum to H.R.Rep. No. 914, 88th Cong., 2d Sess. (1964), “As the title was originally worded, the Commission would have had authority to not only conduct investigations, but also institute hearing procedures and issue orders of a cease-and-desist nature. A substantial number of committee members, however, preferred that the ultimate determination of discrimination rest with the Federal judiciary. Through this requirement, we believe that settlement of complaints will occur more rapidly and xoith greater frequency." (Etnphasis added.)

16 . “Probably the most significant change made in Title VII by the leadership compromise was to deprive the Equal Employment Opportunity Commission of the right to bring suits to enforce compliance with the title and to substitute an individual right of action by the person aggrieved. * * * This represented a rather basic change in the philosophy of the title and implied an appraisal of discrimination in employment as a private rather than a public wrong, a wrong, to be sure, which entitles the damaged party to judicial relief, but not one so injurious to the community as to justify the intervention of the public law enforcement authorities.” Berg, Equal Employment Opportunity Under the Civil Rights Act of 1964, 31 Brooklyn L.Rev. 62, 67 (1964-65).

17 . Perhaps this is a partial answer to the argument made by the court in Dent and by the defendants in this court that since the Dirksen compromise involved a “softening” of the enforcement provisions, it is “contrary to logic to construe this measure as permitting the institution of a civil action without conciliation and thus as providing less protection to potential defendants and as placing less emphasis on voluntary compliance than did the House bill.” Dent v. St. Louis-San Francisco Ry. Co., 265 F.Supp. 56, 59 (N.D.Ala.1967). The fallacy in the “contrary to logic” argument is that it ignores the greater need for individual access to the courts where private vindication is the substituted sanction and considers only the impact upon defendant employers and unions.

18 . Indeed, Franklin D. Roosevelt, Jr., Chairman of the Commission, has pointed out that the complaint procedure is not to be relied upon as the most effective means of achieving the statutory purpose:

“To assist businesses throughout the country in establishing and carrying forward an affirmative action program on a community-wide basis, the Office of Technical Assistance, which is the educational and promotional arm of the Commission, lias prepared a step-by-step plan, based on established and successful programs. In an effort to broaden business participation, Technical Assistance has scheduled a ‘Sixty-City Plan,’ calling for regional meetings with small groups of business leaders on the community level during the coming months. The purpose is to counsel and guide these leaders in forming Merit Employment Councils in their respective communities and to cooperate with them in establishing equal employment programs. Meetings are being held in key cities throughout the country and are expected to draw businessmen from surrounding communities. A traveling field staff will follow up on the meetings, contacting the participants for reports of progress and offering solutions to the problems which they may face.

“It is our hope that through persuasive and aggressive promotion of affirmative action we may be able to achieve more significant results, both quantitative and qualitative, for minority group workers than through the complaint procedure.”

7 B.C.Ind. & Comm.L.Rev. 413-14 (1966).