United States District Court, Northern District of Illinois, E. D
January 13, 1970
LANEY MCDONALD, ALONZO SMITH, ADAM LAMBERT, KING FLEMING, ALAN LANE, CHARLES WALTON AND FRANK DERRICK, JR., PLAINTIFFS,
AMERICAN FEDERATION OF MUSICIANS OF THE UNITED STATES OF AMERICA AND CANADA, AFL-CIO, CHICAGO FEDERATION OF MUSICIANS, LOCAL 10-208, AMERICAN FEDERATION OF MUSICIANS OF THE UNITED STATES OF AMERICA AND CANADA, AFL-CIO, AND H. LEO NYE, DEFENDANTS.
The opinion of the court was delivered by: Napoli, District Judge.
MEMORANDUM OPINION AND ORDER
This action was brought by the plaintiffs, all members of Local
10-208 of the Chicago Federation of Musicians, under Title VII
of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The
defendants are the international union, the plaintiffs' local
and the recording secretary of the local. Each of the
defendants has moved for dismissal or for summary judgment. The
Equal Employment Opportunity Commission has filed an amicus
curiae brief in support of the plaintiffs.
Prior to the enactment of the Civil Rights Act of 1964 the
defendant American Federation of Musicians (hereinafter
referred to as AFM) maintained two affiliate locals in Chicago,
the Chicago Federation of Musicians, Local 10 and Musicians
Protective Union, Local 208. Local 10 was composed
predominantly of Caucasians and Local 208 was made up
exclusively of Negroes. In 1963, some of the members of Local
208, including the plaintiffs, attempted to transfer to Local
10 in order to take advantage of better job opportunities
available through that local. Transfer was permitted in
accordance with the bylaws of the two locals and the
international, however, a $100 transfer fee was assessed
against any member of Local 208 wishing to join Local 10. Each
of the plaintiffs paid the transfer fee on the condition that
if the two locals eventually merged the assessment would be
refunded. The right to the refund depended upon the plaintiffs
remaining in good standing with both locals, thus requiring
them to pay dues to both.
In January, 1966, the two locals merged to form Local 10-208
and all Negro members of the former Local 208 became members of
the new organization without the payment of any fee. The
plaintiffs petitioned for the return of their transfer fee and
on August 25, 1966, the Board of Directors of Local 10-208
voted to make the refund which was accomplished shortly
thereafter. However the former president of Local 208 appealed
the decision to the AFM. Contrary to the constitution and
by-laws of both the local and the AFM, the plaintiffs were not
given notice of the appeal, and on January 20, 1967, the AFM
reversed the Board of Directors. A letter from the AFM to H.
Leo Nye, Recording Secretary of the local, advised him of the
action on the appeal and directed him to inform the
international when the money had been recollected from each of
the plaintiffs. Nye conveyed a copy of this letter to the
plaintiffs requesting that they comply with its instructions.
After repaying the fee under protest, the plaintiffs filed a
charge against AFM and their local with the Equal Employment
Opportunity Commission (hereinafter referred to as EEOC). The
inability of the EEOC to resolve the dispute resulted in this
Local 10-208 has moved to dismiss or for summary judgment on
the ground that the EEOC did not find reasonable cause to
believe that it had violated Title VII of the Civil Rights Act.
It is argued that a finding of reasonable cause by the EEOC is
prerequisite to filing of an action in this Court. There is
considerable disagreement as to whether reasonable cause was
found and whether it was or was not is far from clear. The
EEOC's written memorandum of decision states under the heading
of "Summary of Investigation":
Since the merger materialized after the effective date of Title
VII (July 2, 1965), Local 10's continuing refusal to return the
money as required by the contract places it in violation of the
In the same document, under the heading of "Decision", the EEOC
Reasonable cause does not exist to believe that Respondent
Chicago Federation of Musicians Local 10-208 has violated Title
VII of the Civil Rights Act as charged.
The affidavit of Elmer W. McLain, Regional Director of the
Equal Employment Opportunity Commission of Chicago, Illinois,
filed on behalf of the defendant local, authenticates the
document of decision finding no reasonable cause with respect
to the local and further states that because of this decision
no conciliation efforts were or could be undertaken. Local
10-208 also points out that the caption of the right to sue
letter sent to the plaintiffs contained only the International
and not the local.
The plaintiffs have filed an affidavit of the same Elmer W.
McLain which again authenticates the EEOC's document of
decision and which specifically refers to the portion already
quoted indicating that Local 10-208 was in violation of Title
VII. The affidavit also states that the decision of "no
reasonable cause" as to the local "was limited solely to the
Local's failure to notify the charging parties of an appeal to
the International." The latter statement is to some extent
substantiated by a document which specifies the date on which
the EEOC's decision would become official. After naming the
charging parties and the respondents the following conclusions
appear: "(Local: No Cause/race-failure to notify of appeal to
International) (International: Cause/race-ordering repayment of
In addition to arguing that reasonable cause was found with
respect to Local 10-208, the plaintiffs and the EEOC maintain
the question is irrelevant since a charging party has the right
to sue in the United States District Court irrespective of the
findings of the EEOC.
The wording of the jurisdictional statute,
42 U.S.C. § 2000e-5(e), is of little assistance in resolving this
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 * *
* 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 * * *.
The cases decided under this section have consistently held
that an actual conciliation effort by the Commission is not a
jurisdictional prerequisite. Miller v. International Paper Co.,
408 F.2d 283
, 288-291 (5th Cir. 1969); Johnson v. Seaboard Air
Line R. R., 405 F.2d 645
(4th Cir. 1968); Choate v. Caterpillar
Tractor Co., 402 F.2d 357
, 361 (7th Cir. 1968); Sokolowski v.
Swift & Co., 286 F. Supp. 775 (D.C.Minn. 1968); Mondy v. Crown
Zellerbach Corp., 271 F. Supp. 258 (E.D.La. 1967), rev'd on
other grounds sub nom. Oatis v. Crown Zellerbach Corp.,
398 F.2d 496
(5th Cir. 1968); Moody v. Albemarle Paper Co.,
271 F. Supp. 27 (E.D.N.C. 1967); Evenson v. Northwest Airlines,
268 F. Supp. 29 (E. D.Va. 1967). The only requirements are that the
plaintiff file a charge with the EEOC, receive statutory notice
that the EEOC has been unable to obtain voluntary compliance
with the Act and then bring an action under section 706(e)
within thirty days of receipt of the notice. Choate v.
Caterpillar Tractor Co., supra; Mondy v. Crown Zellerbach
Corp., supra. However, a charging party has the right, under
the regulations, to obtain from the EEOC notice of the right to
sue after sixty days has elapsed from the time the charge was
filed, regardless of any action or inaction by the Commission.
The pertinent regulation, 29 C.F.R. § 1601.25a, provides in
(b) Notwithstanding the provisions of paragraph (a) of this
section, the Commission shall not issue a notice pursuant to
§ 1601.25 [Notice to respondent and aggrieved person] prior
to a determination under § 1601.19 [Determination as to
reasonable cause] or, where reasonable cause has been found,
prior to efforts at conciliation with respondent, except that
the charging party or the respondent may upon the expiration
of 60 days after the filing of the charge or at any time
thereafter demand in writing that such notice issue, and the
Commission shall promptly issue such notice to all parties.
It is clear, therefore, that although the jurisdictional
requirements are stated in terms of inability to obtain
voluntary compliance, the actual effort in that direction is
unnecessary. Clearly, the same is true of a finding of
reasonable cause where sixty days has past since the filing of
the charge. Miller v. International Paper Co., supra, 408
F.2d at 288; 29 C.F.R. § 1601.25a. The notice served by the
EEOC is merely a necessary formality and the real question is
whether the finding of no reasonable cause precludes the filing
of a civil action.*fn1
The cases called to our attention dealing directly with this
point are in conflict. Grimm v. Westinghouse Electric Corp.,
300 F. Supp. 984 (N.D.Cal. 1969); Noon v. Kaiser Steel Corp.,
No. 69-288-EC, (C.D.Cal. August 20, 1969); Robinson v. P.
Lorillard Co., No. C-141-G-66 (M.D.N.C. January 26, 1967);
Aiken v. New York Times, No. 69 C 548 (S.D.N.Y. May 27, 1969).
Contra, Flowers v. Local No. 6, 69 C 819 (N.D.Ill. September
12, 1969); Fekete v. United States Steel Corp., 300 F. Supp. 22
(W.D.Pa. 1969); David v. Boeing Co., 90 L.C. ¶ 9312 (W.D.Wash.
1969). The legislative history with respect to this question is
also conflicting and of no assistance.*fn2
In the absence of clear statutory language to the contrary or
discernable legislative intent, four factors have led this
Court to the conclusion that this action should be allowed
against Local 10-208. First, the EEOC has filed an amicus brief
in support of the plaintiffs and strenuously urged the
plaintiffs' position regarding all of the issues raised here.
In reference to the weight to be given the opinion of an
administrative agency the Supreme Court stated in Udall v.
Tallman (1965), 380 U.S. 1 at page 16, 85 S.Ct. 792, at page
801, 13 L.Ed.2d 616:
When faced with a problem of statutory construction, this
Court shows great deference to the interpretation given the
statute by the officers or agency charged with its
administration. "To sustain the Commission's application of
this statutory term, we need not find that its construction
is the only reasonable one or even that it is the result we
would have reached had the question arisen in the first
instance in judicial proceedings." (Citations omitted)
The strength of this doctrine may not be as great where the
question deals with the jurisdiction of this Court but the fact
remains that in its effectuation of the provisions of the Civil
Rights Act the EEOC does not consider its determination of
reasonable cause finally dispositive. In addition, as will be
seen below, a contrary interpretation would place in the hands
of the EEOC an even greater control over the jurisdiction of
the Court. It is the opinion of this Court that the
Commission's construction of the statute is a reasonable one.
Secondly, a holding that failure of the EEOC to find reasonable
cause precludes a civil action under the statute would create
an unfortunate jurisdiction situation. Under the regulation
29 C.F.R. § 1601.25a(b), a charging party can demand the statutory
notice of the right to sue after sixty days have past since the
filing of the charge. Surely no one doubts the right of the
complainant to sue in the District Court if the EEOC has not
made a finding of reasonable cause during that time. Miller v.
International Paper Co., supra. However,
29 C.F.R. § 1601.25a(c) states:
Issuance of notice pursuant to § 1601.25 does not terminate
the Commissions jurisdiction of the proceeding, and the case
shall continue to be processed.
Thus, if the investigation continues, after notice is issued
and suit is filed, and the EEOC finds no reasonable cause, does
jurisdiction remain? If the answer is affirmative, jurisdiction
has depended solely on the fact that it took the Commission
more than sixty days to make the determination. If the answer
is negative, the EEOC is in the position of being able to
deprive the Court of jurisdiction after it has been assumed. We
do not think that such a result was ever intended.
Another factor leading to the conclusion that the action
against Local 10-208 must be allowed is found in the reasoning
of the Court in Grimm v. Westinghouse Electric Corp., supra.
The Court there noted the numerous jurisdictional questions in
which broad judicial interpretations have been made and the
numerous indications that the actions of the EEOC were never
intended to be dispositive of a complainant's allegation of
discrimination. This Court is in accord with that reasoning.
Finally, in the circumstances of this case, it would be
manifestly unjust to dismiss Local 10-208 when its presence may
be necessary for a full and complete adjudication and where it
is impossible to determine from the matter on file whether the
EEOC did or did not find reasonable cause with respect to the
charge against it. As a practical matter, where cause has been
found as to
one or more of the charged parties and the others may be
indispensible for a just and complete adjudication, it is the
opinion of this Court that justice would require that they
remain in the suit.
PARTY NOT CHARGED BEFORE THE EEOC
The defendant H. Leo Nye has moved for dismissal or for summary
judgment on the ground that he was not named in the charge
before the EEOC. The section authorizing jurisdiction in this
Court, 42 U.S.C. § 2000e-5(e), permits an action against the
respondent named in the charge. The plaintiffs rely on the
holding of Taylor v. Armco Steel Corp., 60 L.C. ¶ 9266
(S.D.Tex. 1969), and language in Mickel v. South Carolina
Employment Service, 377 F.2d 239 (4th Cir. 1968) (dictum),
Sokolowski v. Swift & Co., 286 F. Supp. 775 (D.Minn. 1968)
(dictum), and Moody v. Albemarle Paper Co., 271 F. Supp. 27
(E.D.N.C. 1968) (dictum), in support of the contention that any
agent of a party charged before the Commission may be sued in
an action in the District Court even though that defendant was
not a respondent before EEOC.
This Court has previously held that the mere existence of an
agency relationship does not authorize a suit against those
persons who were not respondents before the EEOC. Butler v.
Local No. 4, 308 F. Supp. 528, No. 69 C 432 (N.D.Ill.October 9,
Defining a labor organization to include its agents
[42 U.S.C. § 2000e(d)] delineates the scope of application of the sections
of Title VII prohibiting unlawful employment practices. It does
not suggest that the term "respondent" as used in
42 U.S.C. § 2000e-5(e) has the same meaning. According to the
definition, the activities of agents of labor organizations are
subject to the provisions of Title VII. However, the charging
of one before the EEOC does not make a respondent of the other.
Butler v. Local No. 4, supra.
Agency alone is not enough. However, we also stated that "[t]he
situation may be different where there is substantial identity
between the parties * * *"
It is clear that the purpose of Title VII is to provide an
employer or labor organization charged with discrimination with
notice of the charge and to provide a forum for informal
negotiations and conciliation before the controversy progresses
to an adversary proceeding. Bowe v. Colgate-Palmolive Co.,
416 F.2d 711 (7th Cir. 1969). If the existence of an agency
relationship were sufficient to justify disregarding the
literal meaning of section 706(e) of the Act, then the policy
of the statute would be frustrated as well, since notice to and
negotiation with a charged party would not of necessity be
notice to and negotiation with all of its agents.
That is not the case where there is substantial identity
between the defendants. Here the defendant Nye is the Recording
Secretary of Local 10-208. He is subject to the provisions of
Title VII and any notice and investigation of the charges
against Local 10-208 must have included him since it was
through him that the allegedly discriminatory fees were
collected. We therefore conclude that no useful purpose would
be served by requiring the plaintiffs to have proceeded against
him before the EEOC and the Court will therefore not require a
futile act. For these reasons the defendant Nye's motion to
dismiss will be denied.
The American Federation of Musicians has moved to dismiss or
for summary judgment on the ground of improper venue. The
motion is without merit and will be denied.
The relevant section, 42 U.S.C. § 2000e-5(f), reads in part:
Such an action may be brought in any judicial district in the
State in which the unlawful employment practice is alleged to
have been committed, in the
judicial district in which the employment records relevant to
such practice are maintained and administered, or in the
judicial district in which the plaintiff would have worked but
for the alleged unlawful employment practice, but if the
respondent is not found within any such judicial district, such
action may be brought within the judicial district in which the
respondent has his principal office.
The AFM contends that since the action taken to require the
plaintiffs to repay the transfer fees occurred in Florida and
since its principal office is in New York, no alleged act of
discrimination occurred in this district. The contention is
without merit. The plaintiffs live and work in this district
and were required to repay the fees here. The fact that the
decision that required them to do so was made elsewhere does
not necessitate the conclusion that no alleged act of
discrimination occurred in this district. It taxes common sense
to suggest otherwise.
In accordance with the foregoing, all motions to dismiss or for
summary judgment will be denied.