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November 1, 1967


The opinion of the court was delivered by: Robert D. Morgan, District Judge.


This cause is before the court upon defendant's motion to dismiss the complaint.

The complaint, based upon the equal employment opportunities provisions of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., alleges that plaintiff applied to defendant for employment as a factory worker on February 22, 1966, and that she was then told by an agent of defendant that she would not be employed for the reason that defendant would employ men to the exclusion of women as factory workers so long as male applicants for such work were available.*fn1 that, about March 14, 1966, plaintiff filed "a written complaint with the Equal Employment Opportunity Commission"; that on or about October 5, 1966, plaintiff was advised by the Commission, by a writing, that the Commission "had determined that there was reasonable cause to believe" that the Act had been violated; that her complaint was filed in this court within thirty days thereafter; that the stated premises reveal that plaintiff was discriminated against on her application for employment because of her sex, and that defendant is intentionally engaging in an unlawful employment practice in violation of the Act.*fn2

Defendant bases its motion upon its contention that the complaint fails in several particulars to allege that plaintiff has complied with procedural requirements of the Act. Though the complaint does sufficiently allege the substantive violation of the act of sexual discrimination in employment practices as applied to plaintiff,*fn3 the contention that she does not allege her compliance with the procedures required by the Act has a semantic basis which is apparent from the complaint. Whether those omissions require dismissal of the complaint depends upon whether allegations of plaintiff's strict compliance with the provisions of the Act are a substantive prerequisite to her statement of a cause of action.*fn4

The complaint alleges an act of discrimination on February 22, 1966, and that plaintiff filed "a written complaint" with the Commission on March 14, 1966. There can be no question that her initial contact with the Commission was timely if the complaint which she filed was adequate to invoke the administrative jurisdiction of the Commission.*fn5

A critical question arises from the fact that the complaint does not allege that the written charge which plaintiff filed with the Commission was "under oath." Defendant contends that a complaint "under oath" is essential to initiate the administrative remedy for which the Act provides, and that allegations showing required pursuit of such administrative remedy is a jurisdictional prerequisite to the institution of a civil action.

In that regard, the statute provides that a person claiming to be aggrieved by an unlawful employment practice, as defined in the Act, may file a charge "in writing under oath" with the Commission; that the Commission shall then make an investigation, and, if there is reasonable cause to believe the charge is true, the Commission shall attempt, "by informal methods of conference, conciliation and persuasion," to obtain voluntary compliance with the Act; and that, if voluntary compliance cannot be obtained, the Commission shall so notify the person aggrieved who then may, within thirty days thereafter, file a civil suit against the alleged violator. 42 U.S.C. § 2000e-5(a) & (e).

No reported decision dealing with the precise question presented here has been found, but several courts have considered the related question whether exhaustion of the administrative remedy provided by the Act is a prerequisite to the institution of a civil action.

The issue involved in Dent v. St. Louis-San Francisco Ry. Co., N.D.Ala., 265 F. Supp. 56, was whether a civil action could be prosecuted before there had been any effort by the Commission to obtain voluntary compliance with the Act by conciliation. Following a lucid and extensive analysis of the legislative intent, as embodied in the legislative history of the Act, 265 F. Supp. at 58-60, the court held that compliance with the provisions of the Act requiring resort to conciliation is a jurisdictional prerequisite to the institution of a civil action. The court said that conciliation was intended by Congress as the basic means for enforcement of the Act's provisions, and that the alternative of coercion by civil process was permissible only after it had been determined that voluntary compliance could not be obtained.

Mickel v. South Carolina State Employment Service, 4 Cir., 377 F.2d 239, was an appeal from a judgment dismissing the plaintiff's complaint against Exide Battery Company. The plaintiff had filed a charge with the Commission against the State Employment Service. No charge had been filed against Exide.

In affirming the judgment, the court said that resort to the administrative remedy of conciliation is a prerequisite to "the extreme measure of bringing a civil action," and that a civil action would lie "only after conciliation efforts had failed, or, in any event, after opportunity had been afforded the Commission to make such efforts." 377 F.2d 241. The court held that the plaintiff had not availed herself of the administrative remedy of conciliation by filing a charge against Exide, and that, therefore, she had not complied with the statutory requirements prerequisite to her right to prosecute a civil action against Exide. 377 F.2d at 242.

In Hall v. Werthan Bag Corp., M.D. Tenn., 251 F. Supp. 184, the court considered the question whether a class action would lie to enforce the provisions of the Act. The complaint was filed by Hall, a Negro employee of Werthan, on behalf of himself and all other Negro employees of the company who were similarly affected by alleged discriminatory practices. A motion by Tate, another Negro employee of the company, to intervene as a party plaintiff, gave rise to the court's opinion. Only Hall had invoked the administrative remedy provided by the Act by filing a charge with the Commission.

The court did hold that Tate could intervene in the suit and that the suit would lie as a class action. That decision was, however, expressly limited to the prayer of the complaint for prospective relief. The court reasoned that the Commission had employed the conciliation process in an effort to obtain voluntary compliance with the Act upon the charge filed by Hall. It held that the demands of the statute, that the conciliation process be first invoked, were satisfied insofar as the complaint sought to enjoin the continuation of racially discriminatory practices which were alleged to affect all Negro employees in the same way as a class. 251 F. Supp. at 187-188.

The court further held that retrospective relief, i.e., back pay or reinstatement, was available only to Hall in the proceeding, because the Commission had not had the opportunity to attempt "conciliation in regard to rectifying any alleged injuries which other Negro employees or would-be employees may claim to have ...

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