Before the district court and this court, the parties have conducted a rain dance around the central question, i.e., whether Tucker can be required to petition the Board before suing. Tucker says the Board never met; Local 26 says it did and Tucker failed to appear. Tucker says he need not have petitioned the Board because Local 26 submitted his case to the Board.Local 26 moved to strike all allegations concerning Board matters occurring after dismissal of the complaint.
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Wright, Circuit Judge, Markey,* Chief Judge, United States Court of Appeals for the Federal Circuit, and Scalia, Circuit Judge.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MARKEY
Opinion for the court filed by Chief Judge MARKEY.
Drew B. Tucker appeals from an order of the United States District Court for the District of Columbia dismissing his complaint. We reverse and remand with instructions to vacate the order.
Tucker was a trainee in a Minority Training Program established by Local 26, International Brotherhood of Electrical Workers, D.C. (Local 26) and the Washington Chapter, National Electrical Contractors Association. In 1983, Tucker filed with the EEOC a charge of racial discrimination on the part of Local 6, seeking referral to work, union membership, and back pay. Local 26 granted membership and referred him to work, but refused back pay. In November 1983, the EEOC gave Tucker a Notice of Right to Sue (Notice). On February 23, 1984, Tucker sued Local 26 in the district court, seeking back pay for the 18 months he had not been referred to work.
In Gray, et al. and EEOC v. International Brotherhood of Electrical Workers, et al., CA No. 74-944 (D.D.C. April 1, 1977) five black males sued Local 26 for violation of their rights under 42 U.S.C. § 1981 and Title VII, Civil Rights Act of 1964, 42 U.S.C. § 2000 e, et seq. Class action certification was denied, a consent decree was entered, and Judge Gasch retained jurisdiction. The consent decree established a Monitoring Board (Board) to resolve similar disputes in future. Any petitioner dissatisfied by the action or inaction (within 8 weeks) of the Board could seek review in the district court.
Tucker filed his present complaint before Judge Gasch as "a related case". The case was transferred to Judge Gesell. When Local 26 said the consent decree required Tucker to petition the Board before suing, the parties moved jointly for a 90-day stay to permit the Board to act. The court denied the motion and dismissed the complaint without prejudice to reopening if issues were not resolved by the Board. His request for reconsideration having been denied, Tucker filed this appeal.
Whether the district court erred in dismissing Tucker's complaint.
We agree with Judge Gesell's characterization of the present litigation as days of wasted effort resulting from an unintelligent approach by both parties. Having obtained union membership and a job, Tucker is suing for 18 months' pay. Local 26 is bound by the consent decree to avoid violation of 42 U.S.C. § 2000e, et seq. or 42 U.S.C. § 1981 and the Board is required ...