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WILLIS v. CHICAGO EXTRUDED METALS COMPANY

United States District Court, Northern District of Illinois


April 25, 1973

ANDREW WILLIS, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFF,
v.
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
      Local 717;

      (d) who have sought or will seek employment
      with Extruded Metals; and

      (e) who were or are employed by Extruded
      Metals.

  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
      agreement.

  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 dismiss, contends:

  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 merit.

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
    et seq.

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 (5th Cir. 1971).

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); United 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 instant action.

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.


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