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LAMONT v. FORMAN BROS.

January 7, 1976

LAWRENCE D. LAMONT, ET AL., Plaintiffs,
v.
FORMAN BROTHERS, INC., Defendant



The opinion of the court was delivered by: GASCH

 FACTUAL SUMMARY

 The complaint, memoranda and exhibits proffered to the Court, and the oral arguments made in support of and opposition to this motion establish the following facts relevant to the instant claims of employment discrimination. The two plaintiffs, Mr. Tapscott and Mr. Lamont, are black males who were employed by defendant for a period of time prior to May 11, 1973. Defendant Forman Bros. is a District of Columbia corporation engaged in the wholesale distribution of wines and spirits in the District. On May 11, 1973, defendant fired both Tapscott and Lamont from their respective positions as night warehouse manager and warehouse manager.

 Tapscott filed a charge of employment discrimination with the Equal Employment Opportunity Commission (EEOC) on May 22, 1973, obliquely alleging that defendant had fired him because of his race. *fn1" The EEOC mailed a Notice of the Charge to defendant on July 26, 1973. *fn2" Mr. Lamont filed his discrimination charge with the District of Columbia Office of Human Rights (DCOHR) on or about May 17, 1973. *fn3" According to a letter filed with the Court after argument of this motion, *fn4" the EEOC and DCOHR had an "understanding" in 1973, pursuant to which DCOHR was supposed to make sure that all discrimination charges filed with the DCOHR were set forth on an EEOC charge form. DCOHR was also supposed to forward the charges promptly to the EEOC. In Mr. Lamont's case, however, DCOHR did not forward the charge to EEOC until December 13, 1974, approximately one and one-half years after the allegedly discriminatory incident took place. Upon receipt of Mr. Lamont's charge, the EEOC promptly sent defendant a Notice of the Charge on December 18, 1974. *fn5" On January 14 and 20, 1975, the EEOC sent Messrs. Tapscott and Lamont, respectively, Notices of Right to Sue on their discrimination complaints in federal court. *fn6" Plaintiffs then filed their suit on February 28, 1975.

 MERITS OF THE MOTION TO DISMISS OR FOR SUMMARY JUDGMENT

 Defendant seeks dismissal or summary judgment on each of the many statutorily based claims asserted in plaintiffs' complaint. The complaint purports to seek redress of rights secured by Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (1970); the Thirteenth Amendment and 42 U.S.C. § 1981 (1970); the Fourteenth Amendment and 42 U.S.C. § 1983 (1970); 42 U.S.C. § 1985 (1970); 42 U.S.C. § 1988 (1970); the National Labor Relations Act (NLRA), 29 U.S.C. § 151 et seq. (1970); and the Equal Pay Act, 29 U.S.C. § 201 et seq., as amended by 29 U.S.C. § 206(b) (1970). *fn7" The complaint invokes the Court's jurisdiction pursuant to all of the aforementioned statutes, plus 28 U.S.C. § 1343 (1970), which grants jurisdiction over civil rights actions. Defendant contends that these statutes either do not vest the Court with jurisdiction over plaintiffs' claims, or that plaintiffs' complaint does not state a claim for relief based on the cited statutes. The Court will consider in turn the arguments relevant to each statutory basis of the claims. Preliminarily, however, the sufficiency of the factual allegations of the complaint must be determined.

 A. Claims Sufficiently Stated by the Complaint.

 The plaintiffs' complaint sets forth very few nonconclusory facts relevant to the alleged incidents of discrimination. Specifically, paragraphs 3 and 10 state that plaintiffs are black male adult citizens of the United States, residents of the District of Columbia, and that plaintiffs were formerly employed by defendant as warehouse manager (Lamont) and night manager (Tapscott). The complaint further states that plaintiffs timely filed with the EEOC charges of employment discrimination, and that plaintiffs received Notices of Right to Sue on January 21, 1975. The only allegation of a specific incident of discrimination is the statement that defendant wrongfully discharged plaintiffs because of their race.

 On the basis of these few factual allegations, plaintiffs have asserted that defendant has discriminated against them and other employees on the basis of every characteristic mentioned in Title VII, namely, race, color, religion, sex, and national origin. *fn8" Plaintiffs have not identified their religion or national origin in the complaint, nor have they described any instance of discrimination based on religion, national origin or sex. Mere allegations of systematic discrimination based on these characteristics do not suffice to state a claim under Federal Rules of Civil Procedure 8(a). *fn9" Accordingly, the claims of discrimination based on factors other than race or color will be dismissed.

 B. Title VII Claims.

 Defendant urges dismissal of Mr. Lamont's Title VII claim on the grounds that he failed to file a timely charge of discrimination with the EEOC as required by § 706(e) of Title VII. *fn10" Defendant also bases a challenge to this Court's jurisdiction over both plaintiffs' Title VII claims on the grounds that the EEOC took no steps toward investigation or conciliation of plaintiffs' charges before issuing to the plaintiffs their Notices of Right to Sue. Finally, defendant contends that Title VII does not permit plaintiffs to raise in this suit as Title VII claims any issues or charges that were not raised in plaintiffs' EEOC complaints, and that the plaintiffs' Title VII claims of discrimination based on sex, religion, or national origin must therefore be dismissed.

 1. Timeliness of Lamont's EEOC Charge.

 The Court agrees with defendant's contention that timely filing of a discrimination charge with the EEOC is a jurisdictional prerequisite to maintenance of a Title VII suit in district court, and that the Court must make its own determination of its jurisdiction over Title VII claims rather than relying on the EEOC's issuance of a Notice of Right to Sue as conclusively establishing the Court's jurisdiction. *fn11" The Court must nonetheless deny defendant's motion to dismiss insofar as it ...


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