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THOMPSON v. INTERNATIONAL ASSN. OF MACHINISTS

February 13, 1984

JOYCELYN A. THOMPSON, Plaintiff,
v.
THE INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, et al., Defendants



The opinion of the court was delivered by: GREEN

 Joycelyn A. Thompson brings this suit against the International Association of Machinists & Aerospace Workers ("IAM") and four officers of that organization alleging violations of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. ("Title VII"), the District of Columbia Human Rights Act of 1977, as amended, D.C. Code § 1-2501, et seq. ("D.C. Human Rights Act"), *fn1" Section 1 of the Civil Rights Act of 1966, 42 U.S.C. § 1981 ("§ 1981") and the Ku Klux Klan Act, 42 U.S.C. § 1985(3) ("§ 1985(3)") arising from her discharge from employment. Before the Court is defendants' motion for partial dismissal.

 Plaintiff, a black woman, held the position of Assistant Director of the IAM Human Rights Department for four and one-half years until her discharge on June 29, 1982. The parties agree that as Assistant Director, plaintiff represented defendant IAM and took a national leadership role in organizations addressing the concerns of minorities and women and that she urged the IAM to provide black individuals and women with equal employment opportunity to obtain appointed positions within that union. Amended Complaint, paras. 15, 20, 29. Following her discharge, plaintiff filed a complaint with the Equal Employment Opportunity Commission ("EEOC"), claiming discrimination based on race and sex culminating in her termination, and after receiving a Notice of Right to Sue from that agency, brought this action in June, 1983.

 Plaintiff's complaint, as amended pursuant to leave granted by this Court's Order of December 2, 1983, alleges discriminatory discharge based on race in violation of Title VII and § 1981 (Count I), discriminatory discharge based on sex in violation of Title VII (Count II), discharge in retaliation for opposing defendants' employment practices in violation of Title VII (Count III), conspiracy to discriminate and retaliate against plaintiff in violation of § 1985(3) (Count IV) and discharge in violation of the D.C. Human Rights Act (Count V). Each of these claims except the § 1981 race discrimination claim is challenged on at least one ground in the motion now before the Court. The arguments advanced in defendants' motion, in the order in which they will be addressed, are that the claims of retaliatory discharge are outside of the original EEOC Complaint and therefore improper, that plaintiff has not exhausted her administrative remedies under Title VII and the D.C. Human Rights Act, that plaintiff's conspiracy claims are precluded by her Title VII claims, that the named individuals are improper defendants, and that the damages sought by plaintiff are not recoverable under Title VII or supported by factual allegations to justify recovery under § 1981 or § 1985(3).

 1. Claims of Retaliatory Discharge

 In the instant motion, defendants renew objections first raised in opposition to plaintiff's motion to add claims of retaliatory discharge, arguing that plaintiff's failure to include specific claims of retaliatory discrimination in her EEOC complaint mandates the dismissal of those claims here. Plaintiff's claims of retaliation arise logically from the administrative charge properly before the Court, and for the reasons stated in the Court's Order of December 2, 1983, defendants' argument is rejected.

 2. Exhaustion of Administrative Remedies

 Title VII does impose certain procedural obligations on the complainants, as set forth at 42 U.S.C. § 2000e-5. Paragraph (c) of that section provides that in states having state or local laws prohibiting the unlawful employment practice alleged and establishing or authorizing a local authority to grant or seek relief from that practice, "no [district court] charge may be filed . . . by the person aggrieved before the expiration of sixty days after proceedings have been commenced under the State or local law." 42 U.S.C. § 2000e-5(c) (Section 706(c) of Title VII). The District of Columbia has such a local authority, the Office of Human Rights ("OHR") authorized to remedy discriminatory discharges based on race or sex in violation of the D.C. Human Rights Act, and on the basis of § 2000e-5(c), defendants argue that plaintiff's failure to pursue her administrative remedies through the OHR presents a jurisdictional bar to this suit.

 Defendants apparently view the District of Columbia as a typical "deferral state," in which complaints of discrimination originally filed with the EEOC are routinely referred to the relevant state agency and deemed filed with the EEOC upon expiration of the 60-day period contemplated under § 2000e-5(c). See Love v. Pullman Co., 404 U.S. 522, 30 L. Ed. 2d 679, 92 S. Ct. 616 (1972); 29 C.F.R. 1601.13 (1981). In fact, in the District of Columbia the EEOC's deferral function is altered considerably by a worksharing agreement between the EEOC and OHR. The terms of that agreement provide that each agency will take primary responsibility for processing all charges of which it is the original recipient (with certain exceptions not relevant here) and, "to facilitate the early resolution of charges", the OHR has "waived its exclusive rights to specific periods of initial processing" granted by Title VII for charges assigned by the agreement to EEOC for initial processing. See Worksharing Agreement, Appendix 1 to Plaintiff's Opposition to Defendants' Motion for Partial Dismissal. In other words, charges which would otherwise be subject to state or local review under § 2000e-5(c) bypass that step of administrative processing if initially filed with the EEOC. Plaintiff contends that the worksharing arrangement constitutes a waiver by OHR of its right to review claims under § 2000e-5(c); however, defendants assert that § 2000e-5(c) establishes a jurisdictional prerequisite not subject to waiver.

 The threshold issue before the Court is whether the provisions of § 2000e-5(c) are indeed jurisdictional or whether, like the timely filing requirements of § 2000e-5(e) and (f) and statutes of limitations, they can be waived. See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 102 S. Ct. 1127, 1132, 71 L. Ed. 2d 234 (1982) ("filing a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit"). In reaching its holding in Zipes, the Supreme Court relied on the structure of Title VII, the Congressional policy underlying it and the reasoning of prior cases, and those factors likewise should be considered here.

 The Zipes analysis applicable to time limitations under Title VII does not necessarily translate well to a discussion of exhaustion requirements. For example, the Zipes court placed strong emphasis on the language of § 2000e-5(e), the provision specifying the time for filing charges, which "does not speak in jurisdictional terms or refer in any way to the district courts." Zipes at 1133. That filing provision reads simply: "A charge under this section shall be filed within one hundred and eighty days after the alleged employment practice occurred." Section 2000e-5(c), by contrast, provides that where an alleged unlawful employment practice occurs in a state with local laws and an agency to address claims of discrimination, "no charge may be filed [in the district court] . . . before the expiration of sixty days after proceedings have been commenced under the State or local law . . ." On its face, § 2000e-5(c), unlike Title VII's timing provisions, does tie together initial recourse to the agency and subsequent recourse to a district court. Compare Kizas v. Webster, 227 U.S. App. D.C. 327, 707 F.2d 524, 546 (D.C. Cir. 1983) (parallel analysis involving charge-filing requirements governing federal employment discrimination claims).

 The provision at issue here and the one construed in Zipes can be distinguished on the basis of legislative history as well. Although the legislative record behind the timely filing requirement indicated that the purpose of that provision was to establish a "period of limitations" to prevent the pressing of stale claims, Zipes at 1133, the Congressional intent behind § 2000e-5(c) was to afford state agencies "a limited opportunity to resolve problems of employment discrimination and thereby to make unnecessary resort to federal relief by victims of discrimination." Porter v. District of Columbia, 502 F. Supp. 271, 273 (D.D.C. 1980), quoting New York Gaslight Club v. Carey, 447 U.S. 54, 64 L. Ed. 2d 723, 100 S. Ct. 2024 (1980) and Oscar Mayer & Co. v. Evans, 441 U.S. 750, 60 L. Ed. 2d 609, 99 S. Ct. 2066 (1979). Whether that screening function can be waived by the local agencies themselves is debatable. Although the legislative history apparently mandates that OHR be given an opportunity to consider plaintiff's claim, nothing in the statute seems to prevent OHR from declining that opportunity and delegating its function to EEOC. *fn2"

 Language in case law from this jurisdiction indicates that exhaustion requirements under Title VII may be ...


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