The opinion of the court was delivered by: Austin, District Judge.
MEMORANDUM OPINION and JUDGMENT ORDER
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
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.
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 ...