United States District Court, Northern District of Illinois
April 25, 1973
ANDREW WILLIS, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFF,
CHICAGO EXTRUDED METALS COMPANY, A CORPORATION, AND ALLIED INDUSTRIAL WORKERS OF AMERICA, AFL-CIO LOCAL 717, AN UNINCORPORATED ASSOCIATION, DEFENDANTS.
The opinion of the court was delivered by: Bauer, District Judge.
MEMORANDUM OPINION AND ORDER
This cause comes on defendant Chicago Extruded Metals
Company's motion to dismiss the amended complaint pursuant to
Rule 12(b) of the Federal Rules of Civil Procedure. This is an
action to redress alleged deprivation of the plaintiff's civil
rights pursuant to the Civil Rights Act of 1964, 42 U.S.C. § 2000e
et seq., and the Civil Rights Act of 1870, 42 U.S.C. § 1981.
This Court is alleged to have jurisdiction under
42 U.S.C. § 2000e-5(f), 29 U.S.C. § 185(a), 28 U.S.C. § 1331 and
1343, and 42 U.S.C. § 1985.
The plaintiff Andrew Willis is a Negro citizen of the United
States residing in Chicago, Illinois. The defendants are the
former employers of Andrew Willis, Chicago Extruded Metals
Company ("Extruded Metals"), an Illinois corporation having
its principal place of business in Chicago, Illinois, and the
plaintiff's former union, Allied Industrial Workers of
America, AFL-CIO, Local #717 ("Local 717"), a labor
organization within the meaning of 42 U.S.C. § 2000e(d) and (e)
and § 301(a) of the Labor-Management Relations Act.
The plaintiff, in his amended complaint, alleges the
following facts, inter alia:
1. Plaintiff Andrew Willis brings this action on
his own behalf and on behalf of all other
persons similarly situated pursuant to Rule
23(b)(2) of the Federal Rules of Civil
Procedure. The class which plaintiff
represents is composed of all Negroes
(a) who were or are members of Local 717;
(b) who will apply for membership or become
members of Local 717;
(c) who were, are, or will be represented by
(d) who have sought or will seek employment
with Extruded Metals; and
(e) who were or are employed by Extruded
2. The defendant Local 717 conspired with the
defendant Extruded Metals to make possible
racially discriminating employment practices.
3. The defendants have discriminated against
Andrew Willis because of his race and color
by denying him equal opportunity for
employment retention and advancement. Further
the defendants have prevented the plaintiff
from exercising his rights under employment
contracts and from receiving equal treatment
under the applicable collective bargaining
4. More specifically, on or about March 19,
1971, at approximately 2:45 a. m., plaintiff
Andrew Willis was working the night shift for
Extruded Metals when he received a telephone
call from his daughter asking him to come
home as his grandchild was very sick. The
plaintiff was unsuccessful in locating a
foreman or supervisor in order to obtain
permission to leave, so he left the plant
after notifying his fellow workers of his
intentions. In his haste to aid his
grandchild the plaintiff forgot to "punch
out". On that same day, March 19, 1971, the
defendant Extruded Metals, without any
hearing, fired the plaintiff Andrew Willis.
5. The plaintiff has fully complied with all
procedural requirements of Title VII. A
timely complaint was filed with the Equal
Employment Opportunity Commission (EEOC)
within 210 days of the alleged unlawful
employment practices, more than sixty days
after referral of the charges to the Illinois
Fair Employment Practice Commission, and the
instant action was filed within 30 days from
the date plaintiff received notification from
EEOC of his right to sue.
The plaintiff seeks damages for lost wages and additional
damages in the amount of $100,000 for emotional harm,
degradation and humiliation, $100,000 exemplary damages, plus
the cost of maintaining the instant law suit.
The defendant Extruded Metals, in support of its motion to
1. The Court does not have jurisdiction under
42 U.S.C. § 2000e-5(f) because the plaintiff has
failed to exhaust his administrative remedies.
2. The Court does not have jurisdiction under
42 U.S.C. § 1981 and 28 U.S.C. § 1343(4).
3. The complaint does not state a class suit
maintainable under Rule 23 of the Federal
Rules of Civil Procedure.
4. Plaintiff's action is barred by a prior
proceeding, before the Nagional Labor
Relations Board, in case No. 13-CA-10897.
The plaintiff contends that the instant motion is without
It is the opinion of this Court that this Court has
jurisdiction over the instant action, and that the defendant's
motion to dismiss should be denied.
I. THIS COURT HAS JURISDICTION UNDER 42 U.S.C. SECTION 2000e
It is well settled that § 706(b) of the Civil Rights Act of
1964, 42 U.S.C. § 2000e-5 requires the victim of an alleged
unlawful employment practice to proceed under available state
statutes and administrative remedies before a charge can be
filed with the EEOC.*fn1
See Equal Employment Opportunity Commission v. Union Bank,
408 F.2d 867 (9th Cir. 1969); Stebbins v. Nationwide Mutual
Insurance Company, 382 F.2d 267
(4th Cir. 1967), cert. denied,
390 U.S. 910
, 88 S.Ct. 836
, 19 L.Ed.2d 880 (1968); Abshire v.
Chicago and Eastern Illinois Railroad Company, 352 F. Supp. 601
(N.D.Ill. 1972). Illinois, the situs of the alleged
discrimination, has a Fair Employment Practices Act and a Fair
Employment Practices Commission. See Ill.Rev.Stat. ch. 48
§ 851 et seq. The plaintiff has represented to this Court that
the EEOC, on November 8, 1971, filed charges with the Illinois
Fair Employment Practices Commission on his behalf, and that
the State Commission returned the complaint to the EEOC,
because of the State Commission's overloaded docket.*fn2
The jurisdictional requirements of the statute are fulfilled
when, as in the instant case, a charge is filed with the EEOC
prior to exhaustion of the state remedy, is referred by EEOC
to the state agency, and then is formally filed after the
state agency has indicated that it would decline to take
action. Love v. The Pullman Co., 404 U.S. 522, 92 S.Ct. 616,
30 L.Ed.2d 679 (1972). Such a filing procedure as in the
instant action fully complies with the intent of the Act.
Nothing in the Civil Rights Act of 1964, 42 U.S.C. § 2000e et
seq. suggests a reason why further action by the aggrieved
party should be required. Such a filing procedure complies with
the purpose both of § 706(b), to give state agencies a prior
opportunity to consider discrimination complaints, and of §
706(d), to ensure prompt filing and handling of those
complaints. Further, highly technical filing procedures are
particularly inappropriate in a statutory scheme in which
laymen, unassisted by trained lawyers, initiate the process.
There is no doubt that the Court has jurisdiction over the
alleged violation of the Civil Rights Act of 1964 pursuant to
42 U.S.C. § 2000e-5(b),(d) and (f).
II. THE PLAINTIFF'S AMENDED COMPLAINT PROPERLY STATES A
CAUSE OF ACTION UNDER THE CIVIL RIGHTS ACT OF 1870,
42 U.S.C. § 1981.
Contrary to the contention of the defendant the Civil Rights
Act of 1964 was never intended to pre-empt or create a
jurisdictional barrier to any action brought under the Civil
Rights Act of 1870, 42 U.S.C. § 1981. Brady v. Bristol-Meyers,
Inc., 459 F.2d 621
(8th Cir. 1972); Young v. International
Telephone and Telegraph Co., 438 F.2d 757
(3rd Cir. 1971);
Caldwell v. National Brewing Company, 443 F.2d 1044
In order for a plaintiff to predicate an action on Section
1981, he must allege that he has been deprived of a right,
which under similar circumstances, would have been accorded to
a person of a different race. Jones v. Alfred H. Mayer Co.,
392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968); Georgia
v. Rachel, 384 U.S. 780, 86 S.Ct. 1783, 16 L.Ed.2d 925 (1966);
States v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588 (1875); Agnew
v. Compton, 239 F.2d 226 (9th Cir. 1956), cert. denied,
353 U.S. 959, 77 S.Ct. 868, 1 L.Ed.2d 910 (1957); Schetter v.
Heim, 300 F. Supp. 1070 (E.D.Wis. 1969). The plaintiff in the
amended complaint, has properly stated a cause of action under
42 U.S.C. § 1981.
Contrary to the defendant's contention the plaintiff does
not have to exhaust his administrative remedies before he can
bring an action under 42 U.S.C. § 1981. Logan v. General
Fireproofing Co., 309 F. Supp. 1096 (W.D.N.C. 1969). This Court
does have jurisdiction over the alleged violation of the Civil
Rights Act of 1870 pursuant to 42 U.S.C. § 1981 and 1985 and
28 U.S.C. § 1343.
III. THE PRIOR ADVERSE RULING OF THE NATIONAL LABOR
RELATIONS BOARD DOES NOT HAVE THE EFFECT OF COLLATERAL
ESTOPPEL OR RES JUDICATA ON THE INSTANT ACTION.
The defendants contend that the prior determination by the
National Labor Relations Board's (NLRB) Regional Director that
there was insufficient evidence to show racial discrimination
is a bar to the instant action. It is well settled that a
prior adverse decision by the NLRB does not, under the
doctrine of either collateral estoppel or res judicata,
preclude an employee from subsequently asserting, via an
action under the Civil Rights Act of 1870 and/or 1964, that he
had been discharged because of racial prejudice. Tipler v. E.
I. du Pont de Nemours and Co., 443 F.2d 125
(6th Cir. 1971).
Thus, the decision of the Regional Director to refuse to issue
a complaint in the plaintiff's case is not a bar to the
The instant motion to dismiss does not offer the most
desirable opportunity for this Court to make an adequate
evaluation of the propriety of the class action. A more
intelligent appraisal of whether to permit a class action can
be made after pre-trial discovery of matters which are crucial
to the determination of the class action. Thus, the final
determination of a class must wait until the parties are
better equipped to support their respective positions.
Accordingly, it is hereby ordered that the defendant's
motion to dismiss the complaint is denied.