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June 4, 1981


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


Currently pending before the court are the motions of defendants Levi Strauss & Company ("Levi Strauss") and Carl Von Buskirk ("Von Buskirk"), to dismiss the complaint filed by the Equal Employment Opportunity Commission ("EEOC" or "Commission"). The EEOC seeks an injunction barring the prosecution of a state court action by Von Buskirk against Teri Berk, the plaintiff-intervenor, for slander and defamation. This state court action is a response to charges filed by Ms. Berk with the EEOC alleging that the defendants discriminated against her on the basis of her sex. More specifically, Ms. Berk complained to the Commission that she was discharged by Levi Strauss because she rejected the sexual advances of Mr. Von Buskirk, her supervisor at the company. The EEOC charges here that the filing of the state court defamation action, with the implicit approval of Levi Strauss, violates the anti-retaliation provisions of § 704(a) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a). For the reasons set forth below, Levi Strauss' motion to dismiss is granted and Von Buskirk's motion to dismiss is denied.

Because the company's motion to dismiss may be resolved rather easily it is considered first. Stated simply, the EEOC has made no demonstration that Levi Strauss' presence in this litigation is necessary to enable the court to afford all of the requested relief. The complaint, as alleged, states that Von Buskirk and not Levi Strauss filed the state court action, with its attendant chilling effect on EEOC claimants. In this regard, an order enjoining Von Buskirk alone from proceeding in state court would remedy the situation from the Commission's view. An order against Levi Strauss would achieve nothing since it is not a party to the defamation case. In these circumstances, EEOC cannot plausibly contend that failure to grant injunctive relief against Levi Strauss would cause irreparable harm. Accordingly, Levi Strauss is dismissed.

Von Buskirk's motion raises more substantial and difficult claims than those addressed above. He argues that: (1) this court is prohibited from enjoining his state court action by the Anti-Injunction Statute, 28 U.S.C. § 2283; (2) that the court should abstain from exercising its discretion to enjoin the state court proceedings under the principles articulated in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and its progeny; and (3) that as a substantive matter, state actions for defamation are not enjoinable under the authority of § 704(a) of Title VII. These contentions are dealt with in seriatim below.

Despite its apparent facial applicability, the Anti-Injunction Act does not preclude an injunction under the circumstances presented here. 28 U.S.C. § 2283 provides as follows:

  A court of the United States may not grant an
  injunction to stay proceedings in a State court
  except as expressly authorized by Act of Congress
  or where necessary in aid of its jurisdiction, or
  to protect or effectuate its judgments.

In addition to the express exceptions carved out in the statute is another "more recently developed," which "permits a federal injunction of state court proceedings when the plaintiff in the federal court is the United States itself, or a federal agency asserting `superior federal interest.'" Mitchum v. Foster, 407 U.S. 225, 235-236, 92 S.Ct. 2151, 2158-2159, 32 L.Ed.2d 705 (1971); Leiter Minerals Inc. v. United States, 352 U.S. 220, 77 S.Ct. 287, 1 L.Ed.2d 267 (1957). Accordingly, under this exemption, the Act drops from consideration here.

  Moreover, even if the exception for federal government
plaintiffs were not available, this court has severe doubts
that the Anti-Injunction Act would have a preclusive effect.
Rather, an exception to the reach of the Act, analogous to
that articulated in Mitchum v. Foster, supra, would apply. In
Mitchum, the Court addressed the question of whether 42 U.S.C. § 1983
was among those federal statutes which "expressly
authorized" injunctions of state proceedings. In determining
that § 1983 was within the exception to § 2283, the Court

   . . [I]t is clear that, in order to qualify as
  an `expressly authorized' exception to the
  anti-injunction statute, an Act of Congress must
  have created a specific and uniquely federal
  right or remedy, enforceable in a federal court
  of equity, that could be frustrated if the
  federal court were not empowered to enjoin a
  state court proceeding. . . . The test, rather,
  is whether an Act of Congress, clearly creating a
  federal right or remedy, could be given its
  intended scope only by the stay or a state court

Mitchum v. Foster, 407 U.S. at 237-238, 92 S.Ct. at 2159-2160.

It is beyond cavil that § 704(a) of Title VII creates a "uniquely federal right or remedy enforceable in a federal court of equity", thereby meeting the first part of the Mitchum test. An analysis of the claim raised here also illustrates satisfaction of the second element of Mitchum. The purpose of § 704(a)'s proscriptions is to ensure an employee's protected right to challenge discrimination under Title VII. Retaliation, whether in the form of a subsequent discharge or court proceeding, places an added cost on the exercise of those rights and as such has a "chilling effect." Only by enjoining suits filed in retaliation for the exercise of protected rights can those rights be ensured. Hence, the situation is far different from that in Vendo Co. v. LektroVend Corp., 433 U.S. 623, 97 S.Ct. 2881, 53 L.Ed.2d 1009 (1976). In Vendo, there was no doubt that permitting the maintenance of a state court action did not eviscerate the interests secured by the Clayton Act.*fn1

For analogous reasons, the Younger abstention doctrine also will not serve to bar an injunction. Even acknowledging that Younger is applicable to civil as well as criminal state court proceedings, Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975), and also conceding that, in the normal course of things, federal intervention in pending proceedings is unlikely, Commonwealth Edison v. Gulf Oil Corp., 541 F.2d 1263 (7th Cir. 1976), in situations where abstention would leave the charging party without any remedy in a state action, the doctrine does not apply. The interests being litigated in state court are personal to the defendants and the plaintiff-intervenor. Unlike Ms. Berk, who seeks to assert her individual interests in continued employment, EEOC here seeks to vindicate the public interest as expressed in the congressional purpose of eliminating employment discrimination as a national evil. EEOC v. General Electric Co., 532 F.2d 359, 373 (4th Cir. 1976). As noted above, the interests represented by the Commission are, in effect, defeated if a retaliatory state court defamation action is allowed to proceed. And since EEOC is not a party to that litigation, the Younger doctrine cannot apply where the effect of abstention is, as a practical matter, the effective defeat of guaranteed federal civil rights.

With the Anti-Injunction Act and Younger problems resolved, the remaining question is whether § 704(a) prohibits state court defamation proceedings and authorizes a federal court to enjoin the same as an appropriate exercise of its equitable authority. This court believes that it does, but only in certain circumscribed situations. Section 704(a)'s anti-retaliation provisions are broad and explicit. The statute provides, in pertinent part:

  It shall be an unlawful employment practice for
  an employer to discriminate against any of his
  employees . . . because he has opposed any
  practice made an unlawful employment practice by
  this title, or because he has made a charge,
  testified, assisted, or participated in any
  manner in an investigation, proceeding, or
  hearing under this title.

There is little doubt that a state court defamation action filed in retaliation for having engaged in conduct protected by ยง 704(a), including the filing of a charge with the Commission, violates this section. A literal reading of the statute obviously outlaws all retaliatory acts including lawsuits filed in state tribunals. Hearn v. R.R. Donnelley & Sons, Co., 460 F. Supp. 546 (N.D.Ill. 1978); EEOC v. Virginia Carolina Veneer Corp., 495 F. Supp. 775 (W.D.Va. 1980). It is also clear that federal courts have the power and the duty to remedy ...

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