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October 30, 1972


The opinion of the court was delivered by: Austin, District Judge.


I. Facts.

In June, 1969 Furnco began work on the construction of a new blast furnace at U.S. Steel's South Works Plant in the Chicago area. The primary contractor, McKee, had employed Furnco as a subcontractor to perform the refractory work, which is the installation of brick in a blast furnace and requires a certain amount of expertise on the part of the workmen who do it. During the period from September 29 through October 27, plaintiffs, Negro bricklayers, applied for employment with Furnco by contacting its foreman either at the job site or by telephone. Each of the named plaintiffs was told that he would be contacted when the company started hiring bricklayers, but that no hiring was in progress at that time. When Furnco subsequently hired a number of white bricklayers and did not hire plaintiffs, they filed timely complaints with the Fair Employment Practices Commission of the State of Illinois (FEPC) and the federal Equal Employment Opportunity Commission (EEOC).*fn1

Extensive hearings were held before a hearing examiner of the FEPC, who recommended that the complaint be dismissed because there was no evidence to show that a white bricklayer was hired after he had applied subsequent to any of the complainants. The Commission itself, however, was of the opinion that the record did indeed contain such evidence and it ordered a comprehensive variety of compensatory and injunctive relief. That order is presently in the process of appeal before the courts of the State of Illinois.

Upon receipt of the thirty-day notice provided by 42 U.S.C. § 2000e-5(e) (1970), all named plaintiffs except Sylvester Williams commenced the instant proceedings before this court. The case was then assigned to a magistrate, who entered summary judgment orders prior to the Seventh Circuit's decision in TPO, Inc. v. McMillen, 460 F.2d 348 (7th Cir. 1972), which held that magistrates are without power to enter such orders. This necessitated the present proceeding, which is a de novo review of those summary judgment orders.

The foregoing sketch of the facts is all that is necessary in the instant proceeding, for plaintiffs have already had a full and comprehensive hearing of their claims before a competent state tribunal, whose judgment is considered final under the laws of Illinois. Hence, this court is bound by the principles of full faith and credit and res judicata to recognize that order as binding on at least all those issues that were raised before the Illinois FEPC.

II. Summary Judgment for U.S. Steel and McKee.

Defendant U.S. Steel filed a motion to dismiss for failure to state a claim, calling the magistrate's attention to certain supporting documents filed with defendant McKee's motion for summary judgment. The magistrate treated this as a motion for summary judgment pursuant to Fed.R.Civ.P. 12(b) and granted both summary judgment motions in favor of U.S. Steel and McKee. These decisions were based on a finding that neither of the two defendants could be regarded as principals of Furnco in matters of employment. Hence, they were not legally responsible for Furnco's employment practices. In their brief to review the magistrate's final order plaintiffs state that they chose not to challenge these decisions and in any event this court finds that they were correct as to both matters of fact and of law.

III. Class Action.

Plaintiffs have sought leave to proceed as a class representing all Negro bricklayers who are or might ever become the victims of defendant Furnco's racially discriminatory employment practices. They have alleged all the prerequisites of Rule 23(a) and further allege that defendant has acted or refused to act on grounds generally applicable to the class, that questions of law and fact common to members of the class predominate over any questions affecting only individual members, and that a class action is the best method for the fair and efficient adjudication of the controversy. Defendant's objections to the maintenance of a class action for the most part relate to a class other than that drawn by plaintiffs, who do not seek to represent all Negro bricklayers but only those who are or might become the victims of Furnco's racial discrimination. Thus, the fact that defendant hired some Negro bricklayers does not render untenable the assertion that it did not or will not discriminate against others. It is those others whom plaintiffs seek to represent.

Defendant's objection that plaintiffs have presented no evidence that the class is so numerous that joinder of all members is impracticable is not well-taken. The Seventh Circuit has held, "A suit for violation of Title VII is necessarily a class action as the evil sought to be ended is discrimination on the basis of a class characteristic. . . ." Bowe v. Colgate-Palmolive Co., 416 F.2d 711, 719 (7th Cir. 1969). Thus, this court feels constrained to overrule defendant's objections and allow plaintiffs to proceed as representatives of a class.

In line with the holding of Bowe v. Colgate-Palmolive Co., supra, it is also clear that Sylvester Williams' failure to comply with the thirty-day filing requirements of 42 U.S.C. § 2000e-5(e) (1970) will not bar his recovery in this suit. Accord, Miller v. Int'l Paper Co., 408 F.2d 283, 285 (5th Cir. 1969). Nor can membership in the class be restricted to individuals who have filed charges with the ...

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