2. EEOC's Failure to Investigate the Charges.
As noted by the D.C. Circuit in Macklin v. Spector Freight Systems, Inc.,16 "actual conciliation efforts by the EEOC . . . have not been required as a condition precedent to subsequent court suits under Title VII."
Defendant nonetheless urges the Court to construe § 706(b) and (f)(1) of Tile VII
to bar the filing of a Title VII suit if the EEOC has not at least investigated the charge prior to issuance of the right to sue notice. Defendant has failed to convince the Court that the arguments in favor of treating investigations by the EEOC as a jurisdictional prerequisite may be distinguished from the arguments that several circuit courts have rejected in refusing to treat EEOC conciliation efforts as a prerequisite to district court jurisdiction.
Accordingly, the motion to dismiss the Title VII claims on this ground will be denied.
3. Claims Not Included in the Parties' EEOC Charges of Discrimination.
This Court has previously followed Sanchez v. Standard Brands, Inc.20 in holding that the scope of a Title VII complaint in a court action may not exceed the scope of the EEOC investigation which could reasonably be expected to grow out of the charge of discrimination that was filed with the EEOC.
Application of this principle to the present case would require dismissal of Mr. Tapscott's Title VII claims of discrimination based on religion, sex, and national origin even if those claims had been stated with sufficient specificity to satisfy Rule 8(a). Mr. Tapscott's EEOC charge
states only that he and Mr. Lamont were terminated and replaced by white men. This allegation provides no basis whatsoever for claims of discrimination based on factors other than race or color. Accordingly, the Court's lack of jurisdiction over Mr. Tapscott's Title VII claims of discrimination based on the additional factors provides a second ground for dismissal of those claims.
Defendant has failed to make a showing, however, that the Court lacks jurisdiction for the same reason over any of Mr. Lamont's Title VII claims, for defendant has not filed a copy of Mr. Lamont's EEOC complaint.
C. Claims Based on 42 U.S.C. § 1981.
The Supreme Court has recently noted with approval, in Johnson v. Railway Express Agency, Inc.,24 the holding of many circuit court cases to the effect that "the filing of a Title VII charge and resort to Title VII's administrative machinery are not prerequisites for the institution of a § 1981 action."
The approval of these holdings in Johnson would, in the case at bar, preclude dismissal of the plaintiffs' racial discrimination claims based on 42 U.S.C. § 1981, even if the plaintiffs had failed to exhaust the administrative remedies afforded them by Title VII. Accordingly, if defendant ultimately proves in this action that Mr. Lamont's Title VII charge was untimely filed with the EEOC, and that this Court therefore lacks jurisdiction over Mr. Lamont's Title VII claims, Mr. Lamont will nonetheless be entitled to proceed with his § 1981 claim.
Defendant's motion to dismiss the § 1981 claims in the event of a finding of failure to exhaust Title VII remedies must therefore be denied.
Defendant contends also that issues not raised before the EEOC may not be raised in a § 1981 complaint. The Court must reject this argument on the authority of Johnson, for the Supreme Court emphasized in that case the complete "independence of the avenues of relief respectively available under Title VII and . . . § 1981."
It should be noted, however, that the only claims sufficiently stated by the present plaintiffs' complaints were raised before the EEOC, and no claims other than racial discrimination could be stated in a § 1981 action in any event because of the limited scope of the § 1981 remedy.
Thus, only the racial discrimination claims may be premised on § 1981 in this action, and any other § 1981 claims must be dismissed.
D. Claims Based on Other Statutes.
Although plaintiffs' complaint lists several statutory bases for plaintiffs' claims in addition to § 1981 and Title VII, the Court finds no merit in plaintiffs' reliance on any of the other statutes. The complaint contains no allegation of state action or involvement in the defendant's alleged acts of discrimination, and plaintiffs have therefore failed to state a claim based on 42 U.S.C. § 1983.
No claim based on 42 U.S.C. § 1985 has been stated, since plaintiffs have not alleged a conspiracy between defendant and any other person or entity.
42 U.S.C. § 1988 is merely a procedural provision which "instructs federal courts as to what law to apply in causes of action arising under federal civil rights acts"
but creates no independent cause of action. Plaintiffs' failure to state a sufficient claim of sex discrimination in salary or wages requires dismissal of plaintiffs' Equal Pay Act
claim, and the Court lacks jurisdiction over any claim based on the National Labor Relations Act.
Accordingly, the claims based on these statutes must be dismissed.
Oliver Gasch / Judge
Date: January 6th 1976
[EDITOR'S NOTE: The following court-provided text does not appear at this cite in 410 F. Supp.]
Upon consideration of the memoranda, exhibits and oral arguments made in support of and opposition to defendant's motion to dismiss or in the alternative for summary judgment, and for the reasons set forth in the attached Memorandum, it is by the Court this 6th day of January, 1976,
ORDERED that the motion to dismiss is denied as to plaintiffs' claims of racial discrimination based on Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (1970), and 42 U.S.C. § 1981 (1970); and it is further
ORDERED that the motion to dismiss is granted as to plaintiffs' claims of discrimination based on sex, religion and national origin, and as to the claims based on 42 U.S.C. §§ 1983, 1985, and 1988 (1970), and on the Equal Pay Act, 29 U.S.C. § 201 et seq., as amended by 29 U.S.C. § 206(d) (1970), and on the National Labor Relations Act, 29 U.S.C. § 151 et seq. (1970). Oliver Gasch / Judge