Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 79-C-2227 -- John Powers Crowley, Judge .
Before Swygert, Senior Circuit Judge, and Pell and Sprecher, Circuit Judges.
The Equal Employment Opportunity Commission appeals from the dismissal of its complaint brought under section 704(a) of Title VII, 42 U.S.C. § 2000e-3(a), alleging that the defendant hospital discharged its employee Barbara Herzon because she hired a black man to fill a position in her department. The district judge held that the Commission had failed to satisfy the jurisdictional prerequisites to suit because it did not attempt conciliation prior to issuing its reasonable cause determination. We conclude that conciliation efforts prior to the issuance of a reasonable cause determination are not required by the Equal Employment Opportunity Act ("the Act"), 42 U.S.C. §§ 2000e et seq., and that the Commission has met the requirements for suit. We also hold that the Commission has stated a claim under section 704(a), because although it was a threatening caller and not the employer who objected to Herzon's hiring of a black man, the callers' threats were allegedly a reason for the discharge. Accordingly, we reverse.
According to the facts as alleged by the Commission, Barbara Herzon was the Director of Communications, in charge of the security department at St. Anne's Hospital, located in Chicago. On March 1, 1978, she hired a black man to fill the position of consumer services representative in her department. The person Herzon hired was the first black consumer services representative employed by St. Anne's. Later that day, the hospital began receiving bomb threats from one or more persons claiming membership in the American Nazi Party. The callers announced their intention to eliminate blacks and Jews, and one caller stated: "I am going to fix that bitch Barbara, head of security, who hired that black assistant." In addition to bomb threats, several unexplained fires were started at the hospital. A hospital administrator asked Herzon to resign or be discharged, it is asserted, because Herzon was an irritant to the person or persons making the calls and/or setting the fires.
In May 1978, Herzon filed a charge of discrimination with the Commission. She stated that she was told that she must resign because of the bomb threats and because the hospital wanted more security which could be better provided by a male. At that time, Herzon believed and accordingly alleged that she was discharged because she was Jewish and a woman.
Irving Kossy, the Commission specialist assigned to Herzon's case, began his investigation by sending a questionnaire to St. Anne's requesting information about Herzon's discharge. Kossy discussed the possibility of settlement first with St. Anne's attorney and later at a factfinding conference attended by the parties and their attorneys.
Subsequent to those events, Kossy obtained copies of the police reports concerning the bomb threats and fires. On discovering from those records that the callers had referred to Herzon's hiring of a black employee, Kossy proceeded to interview a Chicago Tribune employee and four St. Anne's employees, all of whom had received threatening calls. At some time prior to September 14, 1978, Kossy telephoned St. Anne's attorney and informed her that he intended to recommend that a reasonable cause determination be issued. He stated that the basis for the determination would not be sex or religious discrimination but retaliation, because his investigation indicated that Herzon's hiring of a black employee was a reason for her termination.
St. Anne's offered no further evidence after that discussion, and on September 18, 1978 the Commission issued its determination finding reasonable cause to believe that St. Anne's had retaliated against Herzon. Both Herzon and St. Anne's were invited to participate in conciliation discussions and each was given ten days to respond to the invitation. St. Anne's failed to respond, and on October 12, 1978, the parties were notified that conciliation efforts were deemed unsuccessful. In May 1979, the Commission filed its action in the United States District Court for the Northern District of Illinois alleging that St. Anne's had violated section 704(a) of Title VII, 42 U.S.C. § 2000e-3(a), by constructively discharging Herzon because of her opposition to practices made unlawful by Title VII.
The district court held that the Commission had failed to satisfy the prerequisites to suit because it had not sought conciliation regarding the charge of retaliatory discharge before issuing its reasonable cause determination. The case was dismissed without prejudice in order to allow for conciliation. The Commission appeals from the dismissal and St. Anne's cross-appeals on the basis that the case should have been dismissed with prejudice.
The first issue concerns the fact that the Commission began by investigating a charge of sex and religious discrimination but found reasonable cause to believe instead that Herzon was discharged in retaliation for hiring a black employee. St. Anne's, the defendant-appellee, concedes that the judicial complaint alleging retaliation is "reasonably related" to Herzon's original discrimination charge under our holding in Jenkins v. Blue Cross Mutual Hospital Ins., Inc., 538 F.2d 164 (7th Cir.) (en banc ), cert. denied, 429 U.S. 986, 97 S. Ct. 506, 50 L. Ed. 2d 598 (1976). It is agreed therefore, as the district court noted, that it was unnecessary for the Commission to initiate a new charge on the retaliation claim.
Moreover, both parties assert that the district court erred in holding that the Commission was required to attempt conciliation before issuing its reasonable cause determination. Section 706(f)(1) of Title VII, 42 U.S.C. § 2000e-5(f)(1), authorizes the Commission to bring an action in federal court "(i)f within thirty days after a charge is filed with the Commission ... the Commission has been unable to secure from the respondent a conciliation agreement acceptable to the Commission." We agree that there is no requirement that an invitation to conciliate be issued prior to the reasonable cause determination. Such a requirement would in fact be illogical because prior to the cause determination, there has been no finding by the agency that there is an unlawful employment practice to be eliminated. Conciliation according to the Act is "to eliminate (an) unlawful employment practice...." 42 U.S.C. § 2000e-5(b).*fn1
While conceding that conciliation is not the issue, St. Anne's argues that the district judge was correct in holding that the Commission failed to satisfy the jurisdictional prerequisites to suit. The hospital argues that the Commission failed to investigate adequately the section 704 retaliation claim which it later sought to conciliate. Although notified that a reasonable cause determination based on retaliatory discharge would issue, the defendant ...