Petition for Writ of Certiorari — Stache v. International Union of Bricklayers & Allied Craftsmen

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Supreme Court, U.S.

FILED

| MAY 25 B88

JOSEPH F. SPANIOL, JR

CLERK

: ee eee

88-1954 -

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No. 88-

In the Supreme Court

OF THE

United States

OCTOBER TERM, 1988

PATRICIA ANN STACHE,

Petitioner.

Vv.

International Union of Bricklayers

and Allied Craftsmen, AFL-CIO,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

WILLIAM T. BISSET

555 South Flower Street

Los Angeles, California 90071

(213) 489-5140

Attorney for Petitioner

Of Counsel:

HUGHES HUBBARD & REED

555 South Flower Street

Los Angeles, California 90071

(213) 489-5140

QUESTIONS PRESENTED

1. Contrary decisions in other Courts of Appeals notwith-

standing, does Title VII necessarily require dismissal of an

action against an international union not named in adminis-

trative sex-discrimination charges prepared by EEOC intake

officers even in the face of District Court findings that (a) the

lay complainant reasonably did not know to name the inter-

national, (b) there was substantial similarity of interest be-

tween the international and the international’s local affiliate

and a union/contractor joint apprenticeship committee who

were named in the charges, (c) the international had timely

notice of the charges before any EEOC fact-finding or con-

ciliation efforts began and (d) the international was not pre-

judiced by not having been named?

2. Is the scope of a civil action under Title VII fixed as a

matter of law, as the Court of Appeals below has held, by

the wording of plaintiff’s EEOC administrative charges or as

a matter of fact, as other Courts of Appeals and as the

District Court below have held, by the scope of the EEOC

investigation that reasonably can be expected to grow out

of those charges?

TABLE OF CONTENTS

TABLE OF AUTHORITIES .......................

Last OF PARTIOS ....../.0.5405. errr r yey arene

OPINIONS BELOW ......4..4:- eee

JURISDICTION 3. oisccis eee

IT.

THE NINTH CIRCUIT’S REFUSAL TO RE-

MAND THE CASE TO THE DISTRICT COURT

TO CONSIDER THE NAMING REQUIREMENT

IN LIGHT OF (A) STACHE’S INABILITY TO

APPRECIATE THE LEGAL SEPARATENESS

OF THE INTERNATIONAL AND ITS LOCAL

AFFILIATE THAT SHE NAMED IN HER

CHARGES, (B) THE SUBSTANTIAL SIMILARI-

TY OF INTEREST BETWEEN NAMED AND

UNNAMED PARTIES AND (C) THE ABSENCE

OF PREJUDICE TO THE INTERNATIONAL IS

IN DIRECT CONFLICT WITH HOLDINGS OF

THE THIRD AND OTHER CIRCUITS APPLY-

ING THE GLUS TEST 2. 2 ee

EITHER THE NINTH CIRCUIT’S DECISION

FOCUSING ON THE WORDING OF STACHE’S

EEOC CHARGES RATHER THAN ON THE

SCOPE OF THE INVESTIGATION THAT REA-

SONABLY COULD BE EXPECTED TO GROW

OUT OF THEM CONFLICTS IN PRINCIPLE

WITH THE FIFTH AND OTHER CIRCUITS’

HOLDINGS APPLYING THE SANCHEZ TEST

OR IT CONFLICTS WITH THE RULE THAT

DISTRICT COURT FINDINGS SHALL NOT BE

SET ASIDE ON APPEAL UNLESS “CLEARLY

ERRONEOUS” |. voi. cc s3sg ee ee

CONCLUSION .. .........0.on

iil

TABLE OF AUTHORITIES

Cases

Brown v. Puget Sound Electrical Apprenticeship &

Training Trust, 732 F.2d 726 (9th Cir. 1984), cert.

Gemeen, 200 Ud. 1106 (1985)... «2. cece en eces, 20, 21

California Federal Savings & Loan Association v.

Gaerra, 479 U.S. 272 (19687). ............... reeks 11

Chisholm v. United States Postal Service, 665 F.2d

a a 20

DFEH v. Cairo, FEHC Dec. No. 84-04 (1984) ........ 13

DFEH v. Paramedicus, FEHC Dec. No. 80-4 (1980) .. 11

Denny v. Westfield State College, 25 Fair Empl. Prac.

eS ES |) | 15

EEOC v. Charleston Electrical Joint Apprentice-

ship Training Committee, 587 F. Supp. 528 (S.D.

ee anny ik asa see evesees hw 15

EEOC v. Kimberly-Clark Corp., 511 F.2d 1352 (6th

Cir. 1975), cert. denied, 423 U.S. 994 (1976)........ 20

Eggleston v. Chicago Journeymen Plumbers’ Local

130, 657 F.2d 890 (7th Cir. 1981), cert. denied, 455

PM cc ek cvs evens aves vneees 14, 15, 17-18

Glus v. G.C. Murphy Co., 562 F.2d 880 (3d Cir.

ee oak ee bt ka ARS S's 4, 12, 14-16

Goodman v. Lukens Steel Co., 482 U.S. 656 (1987)... 6

Greenwood v. Ross, 778 F.2d 448 (8th Cir. 1985) ..... 15

Hamm v. Members of Board of Regents, 708 F.2d 647

anes eck kes ap we a ews 21

IAM v. Gonzales, 356 U.S. 617 (1958) ............... 5

Page

Johnson v. Nekoosa-Edwards Paper Co., 558 F.2d 841

(8th Cir.), cert. denied, 434 U.S. 920 (1977) ........ 20

Lobos v. Aeromexico, IAM District 146, 18 Empl.

Prac. Dec. 7 8886 (S.D.N.Y. 1978). ..............5: 15

Mathews v. Houston Independent School District,

595 fF. Supp. 445 (S.D. Tex. 1984) ................. 15

Ostapowicz v. Johnson Bronze Co., 541 F.2d 394 (3d

Cir. 1976), cert. denied, 429 U.S. 1041 (1977) ....... 20

Oubichon v. North American Rockwell Corp., 482

Fae Oe Cee TE Se bh ola Pe Cake 20

Romain v. Kurek, 836 F.2d 241 (6th Cir. 1987)....... 15

Romero v. Union Pacific R.R., 615 F.2d 1303 (10th Cir.

OTE Pe eet Tre eT eS eer er Tr rites Perr 15

Sanchez v. Standard Brands, Inc., 431 F.2d 455 (5th

Og me ee errr rE re 14, 19-20, 21

Turner v. Orr, 804 F.2d 1223 (11th Cir. 1986) ........ 14, 20

United Association of Journeymen & Apprentices of

Plumbing & Pipefitting Industry v. Local 334, 452

i, ENED id ee Oo Se teak ee SECA Oe ae eee 5

Watson v. Gulf & Western Industries , 650 F.2d 990

SU SE oes ore tan ai eevee peneee ee 13

Williams v. Southern Bell Telephone & Telegraph

Co., 464 F. Supp. 367 (S.D. Fla. 1979) ............. 15

Wong v. Calvin, 87 F.R.D. 145 (N.D. Fla. 1980)...... 15

Zipes v. Trans World Airlines, Inc., 455 U.S. 385

DR ac a8 hair Paige P A any ybngen eee Rar Mec hed hgh 6, 11,13

Statutes and Rules -

eR a we oe || Berner wa Speer eae i. 11, 21

On UT 0. 6 ISG). cnc s cee asec eens ee 2

Oe OT I ick see Re eR Pe ee ee 3

42 U.S.C. 88 2000e et seq... 0... nec eee ee eee ee eee eee 3

49 U.S.C. §$ DOOD) «own cc eee ete sec e wees 2

California Government Code §8§ 12900 et seg. ......-. 6, 11

California Government Code § 12965(b) .........---- 2-3

Other Authorities

EEOC Compliance Manual 8 3.8.....-...---+++++++> 10

H.R. Rep. No. 92238, 92d Cong., 2d Sess., 1972 USS.

Code Cong. & Admin. News 2187 ..........+.+++: 4

LIST OF PARTIES

The parties to the proceedings below were petitioner

Patricia Ann Stache and respondents International Union of

Bricklayers and Allied Craftsmen, AFL-CIO, and Inland Em-

pire Brickmasons Joint Apprenticeship Committee. The

American Federation of Labor-Congress of Industrial

Organizations was permitted to file a brief as amicus curiae.

No. 88-

In the Supreme Court

OF THE

United States

OCTOBER TERM, 1988

PATRICIA ANN STACHE,

Petitioner,

International Union of Bricklayers

and Allied Craftsmen, AFL-CIO,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

OPINIONS BELOW

The opinion of the Court of Appeals for the Ninth Circuit

reversing the judgment entered by the District Court after

13 days of trial is reported at 852 F.2d 1231 and is reprinted

as Appendix A. The Court of Appeals’ unreported order de-

nying petitioner’s petition for rehearing with suggestions

for rehearing en banc, Judge King having recommended

that the Court of Appeals rehear the matter en banc, is re-

printed as Appendix B. The District Court’s unreported find-

ings of fact and conclusions of law are reprinted as Appen-

dix C.!

JURISDICTION

The judgment of the Court of Appeals was dated and en-

tered on August 1, 1988. Petitioner timely petitioned for re-

hearing with suggestions for rehearing en banc on August

15, 1988, which the Court of Appeals denied by an order

entered on February 27, 1989. The jurisdiction of this Court

is invoked under 28 U.S.C. § 1254(1).

STATUTES INVOLVED

Section 706(f)(1) of Title VII, 42 § U.S.C. 2000e-5(f)(1), pro-

vides:

“If within thirty days after a charge is filed with the

Commission or within thirty days after expiration of

any period of reference under subsection (c} or (d) of

this section, the Commission has been unable to secure

from the respondent a conciliation agreement accept-

able to the Commission, the Commission may bring a

civil action against any respondent ... named in the

charge ... If a charge filed with the Commission pursu-

ant to subsection (b) of this section is dismissed by the

Commission, or if ... the Commission has not filed a

civil action under this section or ... entered into a con-

ciation agreement ... the Commission ... shall so no-

tify tne person aggrieved and within ninety days after

the giving of such notice a civil action may be brought

against the respondent named in the a (A) by the

person claiming to be aggrieved .

California Government Code § 12965(b) similarly provides:

‘As used below, “ER” and “ER2d” refer to the Excerpts of

Record filed in the Court of Appeals; “RT” refers to the Reporter’s

Transcript; “CT” refers to the Clerk’s Transcript of docketed fil-

ings; and “Exh.” refers to trial exhibits.

“Tf an accusation is not issued within 150 days after

the filing of a complaint, or if the department earlier

determines that no accusation will issue, the depart-

ment shal! promptly notify, in writing, the person claim-

ing to be aggrieved. Such notice shall indicate that the

person claiming to be aggrieved may bring a civil action

under this part against the person, employer, labor or-

ganization or employment agency named in the ver-

fied complaint within one year from the date of such

notice

STATEMENT OF THE CASE

In 1980 petitioner Patricia Ann Stache (“Stache”) became

the first (and at least through the time of trial in 1985 re-

mained the only) woman member of respondent Internation-

al Union of Bricklayers and Allied Craftsmen, AFL-CIO (the

“International”) in California’s Riverside and = San

Bernardino Counties.2 In the District Court,’ Stache was

awarded damages and injunctive relief based on proof of five

years of pervasive sex discrimination (from the concealment

Stache. her husband and her teenage son moved to California

from their farm in Ohio in 1980. When her husband’s California

salary proved insufficient to support the family, she contacted the

local unemployment office, which encouraged her to explore the

possibility of working in the construction trades in light of her

familiarity with outside work. As a result of pressure applied by

state and federal officials (App. C, Findings 4-6), Stache was admit-

ted to a bricklaying apprenticeship program that the Inter-

national’s constitution required each of its affiliates to establish

(Exh. 110 at 9-10). Stache’s skills proved to be as good as those of

other apprentices and never prevented her from being employed

(App. C, Finding 14). In signing up as an apprentice and joining the

union, Stache wanted only to earn a living and had no interest in

becoming a civil rights symbol or local cause celebre

3Stache invoked the jurisdiction of the District Court under Title

VII of the Civil Rights Act of 1964 (42 U.S.C. 88 2000e et seq.), 28

1.S.C. § 1331 and principles of pendent jurisdiction.

of available job opportunities to the intimidation of threats

of gang rape and other physical abuse to the humiliation of

urination on her bricklaying work in front of her and other

apprentices and public statements that Stache would be

hired only if she were good in bed and to actual and threat-

ened retaliation for filing the action below).‘ It was no secret

that this discrimination was occurring (11 RT 20), and most

of the principal actors were Stache’s fellow members of the

International and its local affiliate (“Local 20’’).®

The District Court found that the International discrimi-

nated against Stache because it refused to make available to

her its usual internal mechanisms for resolving grievances

by members against other members or against affiliated

‘In enacting the Equal Employment Opportunity Act of 1972,

Congress said: “The time has come to bring an end to job discrimi-

nation once and for all, and to insure every citizen the opportunity

for the decent self-respect that accompanies a job commensurate

with one’s abilities.” H.R. Rep. No. 92-238, 92d Cong., 2d Sess.,

1972 U.S. Code Cong. & Admin. News 2137, at 2141 (1972). What a

hollow ring Congress’ statement has 17 years later in the context

of this case.

Article I of the International’s constitution (Exh. 110 at 3) de-

fines the International as follows:

“The International Union shall be composed of the Local

Unions which created it, which have been chartered in the

past, and which may be chartered in the future; the District

Councils of affiliated Locals in various Jocalities chartered in

the past or which may be chartered in the future; and the

State and Provincial Conferences of Locals in various States

and Provinces which have been chartered in the past or may

be chartered in the future, all hereafter collectively referred

> 9?

to in this Constitution as ‘affiliates’.

Compare Glus v. G.C. Murphy Co., 562 F.2d 880, 888 (3d Cir. 1977)

(discussed below) (International’s constitution provided that mem-

bership “shall function through locals chartered by International’s

Executive Board”’).

Hy)

locals for violations of the International’s constitution.* The

International admitted at trial that the reason that it with-

held its grievance procedures from Stache, when it made

them available as a matter of course in all other cases,’ was

because the International knew that Stache had filed a sex-

discrimination charge with the EEOC:

“Q [By the International’s trial counsel]. Do you treat

knowledge that a charge has been filed with the EEOC

different than you would treat a complaint from a mem-

ber of the International Union complaining [about] dis-

crimination?

‘“‘A [By the International’s Vice President]. Yes, we

do.

“Q. Why is that?

“A. Because that individual already has a complaint

filed. They are likely to have counsel, and we think that

it would be too dangerous in terms of interference or

whatever if we handle it in a way where we’re dealing

with a member directly.”

‘The International’s constitution forbids sex discrimination and

gives the International sweeping powers to discipline violators

(App. C, Finding 39; 5 RT 105, 132-33; Exh. 110 at 12). The consti-

tution is a binding contract between the International and its mem-

bers. See United Ass'n of Journeymen & Apprentices of Plumb-

ing & Pipefitting Indus. v. Local 334, 452 U.S. 615, 621 & n.8

(1981); JAM v. Gonzales, 356 U.S. 617, 618-19 (1958).

7When a member’s grievance cannot be resolved informally, the

International has procedures whereby the member can bring for-

mal charges under the International’s constitution (5 RT 103). The

International’s established policy, however, is to ‘treat as a formal

charge under procedures established in the International Union’s

constitution any complaint that could not be satisfactorily resolved

informally” (9 RT 44).

(5 RT 180-81.) The District Court found that the Internation-

al violated Title VII:9

“The International had the power to stop the Local 20

from discrimination against Stache, but it took no

remedial action. Contrary to its policy to treat as a

formal charge under procedures established in the

International’s Constitution any complaint that could

not be satisfactorily resolved informally, the Interna-

tional never treated Stache’s unresolved allegations as

formal charges. The only explanation offered by the In-

ternational for the differential treatment of Stache was

that it treats members who have filed charges of dis-

crimination with the EEOC differently than other com-

plaining members because it ‘feels’ that they already

have legal counsel. The International has not articulat-

ed a legitimate, nondiscriminatory reason for this differ-

ent treatment of Stache.”’

App. C, Finding 45.1°

Stache filed her first charge with the EEOC on April 17,

1981, alleging sex discrimination in the apprenticeship pro-

gram beginning in October 1980 (App. C, Finding 46).!!

8Stache was not herself represented by counsel in connection

with any administrative charge or proceeding (App. C, Finding 48;

5 RT £1). The International’s contrary presumption is at odds with

experience. See Zipes v. Trans World Airlines, Inc., 455 U.S. 385,

397 (1982).

9The jury similarly found that the International violated the Cali-

fornia Fair Employment & Housing Act. Cal. Gov’t Code §§ 12900

et seq.

Compare Goodman v. Lukens Steel Co., 482 U.S. 656, 665-69

(1987) (liability properly imposed under Title VII for discriminato-

ry treatment of discrimination-based grievances). Like Goodman,

this was not a case where Stache sought to hold the International

vicariously liable for any discrimination but its own (3/10/86 RT

10).

11An EEOC intake officer drafted Stache’s charge (4 RT 180).

Stache understood that she was filing her charge against

“the bricklayers” and believed that that included everyone

involved with her apprenticeship (5 RT 47-48).!2 The EEOC

told Stache that the agency’s representatives ‘would find

out all the parties involved during their investigation stage”

(5 RT 50).

Through no fault of Stache, the EEOC never conducted a

reasonable investigation of her allegations of sex discrimi-

nation (App. C, Finding 48). After an initial fact-finding con-

ference on Stache’s first charge, an EEOC representative

told her that he was going to investigate further (4 RT 47).

Approximately four months later, Stache was informed that

the EEOC had closed its investigation because of its mistak-

en belief that Stache had not responded to an inquiry from

the agency. Stache immediately contacted the EEOC, ex-

plained the agency’s error and requested that it reopen its

investigation. Based on assurances from the EEOC, Stache

reasonably believed that the EEOC had reopened her case

and from February 1982 to August 1983 was continuing to

investigate (App. C, Finding 46; Exhs. 102, 104).!8

In July 1982, Stache wrote a letter to the President of the

International explaining her situation and asking for the

International’s help. Despite its established practice of treat-

12At the time that she filed her first charge, Stache could not

have named the International because she did not know that the

International or the joint apprenticeship committee that was com-

posed of three representatives of the local and three representa-

tives of area contractors (the ‘“JAC’’) had a separate legal exist-

ence (4 RT 181-82). See footnote 5 above. The District Court found

that Stache reasonably did not know to name the International in

her charge (App. C, Finding 47).

13The EEOC told Stache that the investigation stage “could take

six months or a year or een longer, because the EEOC was quite

backed up on investigations of charges”’ (4 RT 47).

ing such letters as formal complaints, the International nev-

er responded (App. C, Finding 41).!4

In August 1983, Stache learned for the first time that the

EEOC’s investigation of her charge had not been reopened

and was not pending. The EEOC’s Deputy Director told her

that the EEOC had make a mistake (5 RT 29) and advised

her that, since the discrimination was continuing, she should

file a new charge that would continue her first charge (App.

C, Finding 47; 5 RT 31-33).

When Stache visited the EEOC in September 1983 to file

her second charge, still without benefit of legal counsel (5

RT 37), the EEOC intake officer on duty asked her whether

there had been any further acts of discrimination since she

filed her first charge but told her that the agency would add

only the most obvious new facts to her first charge to get it

going again (5 RT 36-37). The intake officer said that the

EEOC “would investigate the charge and it would all come

out in the investigation” (5 RT 36-37).

In December 1983, the EEOC held a fact-finding confer-

ence on Stache’s second charge but cut it short because no

progress was being made on conciliation and Stache request-

ed her notice of right to sue (App. C, Finding 48). As a result,

a reasonable investigation of her second charge never oc-

curred (App. C, Finding 48).

\4Representatives of the International testified that they had no

record of having received Stache’s letter, and there was substan-

tial controversy at trial as to whether it was “correctly addressed”

to the International’s headquarters (for the past 60 years) at the

“Bowen Building, Washington, D.C.” (4 RT 180; Exh. 544), even

though the United States Postal Service recognizes that address

in its directories (Exhs. 606, 609; 5 RT 119, 129-30).

15The District Court found that, because discrimination was con-

tinuing at all times, both of Stache’s EEOC charges were timely

(App. C, Finding 47).

Stache was not represented by an attorney at any time

before March 1984 (when she filed the action below), and the

District Court found that she reasonably did not know to

include the International in either of her EEOC charges

(App. C, Finding 48; 5 RT 51). A reasonable investigation by

the EEOC of Stache’s first charge would have disclosed that

before the first fact-finding conference the International

knew of the charge from discussions about it with Local 20’s

business manager and did not exercise its powers to take

action (App. C, Finding 48). A reasonable investigation by

the EEOC of Stache’s second charge also would have includ-

ed the International (App. C, Finding 48).!6

The District Court found that the International suffered

no prejudice by not having been named in either of Stache’s

charges (App. C, Finding 48). The International could have

participated in the conciliation or fact-finding processes if it

felt that Local 20 would not adequately represent its inter-

ests. Before the first fact-finding conference, the Interna-

tional knew that Stache had filed charges of sex discrimina-

tion against its local affiliate (App. C, Finding 48) and advised

its local’s business agent to appear at the conference and

present his case (App. C, Finding 40; 7 RT 200).!7 The Inter-

national also knew that Stache had filed a second charge of

discrimination several months before the fact-finding confer-

ence on that charge. At all times, including at trial, the In-

ternational vigorously attempted to defend Local 20’s and

the JAC’s treatment of Stache and throughout denied that

any discrimination had occurred.

\6The trial court found that all of Stache’s claims in the lawsuit

were part of a pattern of continuing sex discrimination reasonably

related to her charges (App. C, Finding 50).

7As the District Court observed in denying the International’s

motion for summary judgment, the International also obviousiy

knew that the sex discrimination alleged by Stache would violate

the rights that the International guaranteed to members in its

constitution (ER2d 114 at 9).

In March 1984 (within 90 days of receiving her right-to-sue

letter from the EEOC), Stache commenced the action below.

The International and its counsel were “the ringleaders .. .

in leading the defense” (5/19/86 RT 19-20) and, without a

hint of a desire to conciliate, litigated as if every issue were

the critical determinant in some sort of crucial test case.

In April 1985, the International moved for summary judg-

ment on a variety of grounds, including its arguments based

on Stache’s failure to name it in her EEOC charges. The

District Court denied the motion, ruling that even if the In-

ternational was not named, it knew about Stache’s charges

and was not prejudiced (ER2d 114 at 9). In June 1985, the

International moved for reconsideration of the denial of its

motion for summary judgment.!* The District Court denied

the motion.

After 13 days of trial in September and October 1985, the

District Court awarded damages and injunctive relief

against the International under Title VII, having found as a

fact that a reasonable investigation of Stache’s charges by

\8In its motion for reconsideration, the International argued that

the District Court could not consider the fact that the Internation-

al learned about Stache’s charges in part from computer printouts

that it had received from the EEOC. It based its argument on

EEOC Compliance Manual § 3.8, which provides that international

unions “participating in the processing of charges under this sec-

tion will not be named as respondents solely for involving them-

selves, after the fact, in a charge or complaint against affiliated

local unions in order to determine the underlying facts or to seek

voluntary resolution of the charge or complaint” (ER2d 114 at 4-5).

This provision is a sort of “Good Samaritan Rule” designed to

protect internationals that (in marked contrast to the International

here) actually do try to help; it was not designed to require courts

to close their eyes to evidence that internationals knew about

charges and were not prejudiced by not having been named there-

in. In any event, the International here had knowledge of Stache’s

charges from sources other than just the printouts (App. C, Find-

ing 44).

the EEOC would have included the International (App. C,

Finding 48).19 The District Court also held that Stache rea-

sonably did not know to name the International in her admin-

istrative charges (App. C, Finding 48) and that the Interna-

tional knew about Stache’s charges before the EEOC held

its first fact-finding conference and was not prejudiced by

not having been named (App. C, Finding 48).

On August 1, 1988, the Court of Appeals reversed and

directed the District Court to vacate its judgment against

the International and to enter an order dismissing Stache’s

complaint against the International. Without expressly con-

sidering whether the District Court’s findings were “clearly

erroneous” under Fed. R. Civ. P. 52(a) or whether the Dis-

trict Court’s instructions to the jury were wrong, the Court

of Appeals held, zpse dizxit, that Stache’s administrative

19 Tn connection with Stache’s pendent claim under the California

Fair Employment & Housing Act (“FEHA’’), the District Court

instructed the jury as follows (14 RT 77):

“If you find that Mrs. Stache filed charges with the DFEH

or EEOC and failed to name a particular defendant as a dis-

criminating party, then in order to find that defendant liable,

you must find that a reasonable investigation of her charges

would have included claims against that defendant.”

Having returned a verdict against the International, the jury thus

necessarily must have concluded that a reasonable agency investi-

gation of Stache’s charges would have included her claims against

the International. The Court of Appeals swept aside the verdict

with its erroneous holding that the failure to name the Internation-

al, while not “jurisdictional” under federal law because of this

Court’s holding in Zipes v. Trans World Airlines, Inc., 455 U.S.

385 (1982), is “jurisdictional” under California law. Other than that

the California Supreme Court has not yet addressed the “‘jurisdic-

tional” issue resolved by this Court in Zipes, there was no legal

basis for drawing this distinction. See generally California Fed.

Savs. & Loan Ass’n v. Guerra, 479 U.S. 272 (1987), and DFEH v.

Paramedicus, FEHC Dec. No. 80-4, at 7-9 (1980) (ER2d 172, Tab

E), both holding that the FEHA provides greater protection

against sex discrimination than does Title VII.

charges were insufficient as a matter of law to allow her to

pursue any claim against the International (App. A at 9316):

“Stache’s Title VII complaint charged that the Inter-

national failed to aid her when it learned of Local 20’s

actions. But her EEOC claims were limited to charging

Local 20 with specific, active acts of discrimination. The

International’s alleged inaction is not so closely related

to Local 20’s active discrimination as to render a second

EEOC investigation redundant. See Brown, 732 F.2d at

730. And the International had no direct contractual re-

lationship with Stache’s employer from which Title VII

liability could be imputed. Compare Kaplan , 525 F.2d

at 1359. Even construing Stache’s EEOC claims liberal-

ly, her charges do not encompass the Internationai....

“If a complainant neither names a defendant in her

administrative charges, nor alleges facts implying that

the defendant discriminated, a Title VII action against

such defendant is premature at best....”

On August 15, 1988, Stache timely petitioned for rehear-

ing with suggestions for rehearing en banc. Stache asked

the Court of Appeals to rehear whether the findings below

that a reasonable investigation by the EEOC would have

included the International satisfied even the ‘‘redundancy”’

test applied by the Court of Appeals and whether under the

Glus test adopted in other circuits the action should be re-

manded to the District Court to consider whether it was

unnecessary to name the International.2° One of the three

judges on the panel of the Court of Appeals that heard

Stache’s appeal recommended that the matter be reheard en

banc, but a majority of the court failed to vote in favor. The

Court of Appeals therefore denied the petition on February

27, 1989 (App. B).

20Stache had relied in part on Glus in defeating the

International’s motion for summary judgment (CT 72 at 15-17) and

in proposing jury instructions (CT 143 at 17a; CT 170 at 20a).

REASONS FOR GRANTING THE WRIT

In Zipes v. Trans World Airlines, Inc., 455 U.S. 385

(1982), the Court held that failure to name a discriminating

party in a charge filed with the EEOC is not necessarily a

jurisdictional bar to prosecuting a Title VII civil action

against that party. This petition asks the Court to resolve

conflicts among the circuits as to the proper analysis of

when Title VII actions may be tried on their merits against

parties not named in EEOC charges.

Reversing the judgment entered in the District Court, the

Ninth Circuit’s decision here creates a direct conflict with

decisions in other circuits by changing the focus of the anal-

ysis and sharply narrowing the circumstances in which Title

VII actions may proceed to trial on the merits. Since the

EEOC cannot be counted on to instruct victims of discrimi-

nation (who like Stache usually are unrepresented and untu-

tored in the law) how to avoid the procedural pitfalls that

may deprive them of the remedies to which their claims en-

title them, the decision below, if allowed to stand, closes the

courthouse door before Stache and other victims of discrimi-

nation can be heard and makes private enforcement of the

civil rights laws more tortuous.2! And, in marked contrast to

contrary decisions in other circuits, the decision below ap-

plies the naming requirement blindly without regard to the

District Court’s findings that showed that, even though

Stache did not name the International in her charges, the

underlying congressional policies of giving notice and pro-

21The EEOC’s administrative foul-ups recently have been the

subject of Congressional inquiries and substantial adverse publici-

ty. Stache and other claimants like her should not be penalized

under Title VII or the FEHA for an agency’s mistakes. See, e.g.,

Watson v. Gulf & W. Indus., 650 F.2d 990, 992 (9th Cir. 1981);

DFEH v. Cairo, FEHC Dec. No. 84-04, at 9-11 (1984) (ER2d 172,

Tab F).

moting conciliation and voluntary compliance were ade-

quately served.”

THE NINTH CIRCUIT’S REFUSAL TO REMAND THE

CASE TO THE DISTRICT COURT TO CONSIDER

THE NAMING REQUIREMENT IN LIGHT OF (A)

STACHE’S INABILITY TO APPRECIATE THE LE-

GAL SEPARATENESS OF THE INTERNATIONAL

AND ITS LOCAL AFFILIATE THAT SHE NAMED IN

HER CHARGES, (B) THE SUBSTANTIAL SIMILARI-

TY OF INTEREST BETWEEN THE NAMED AND UN-

NAMED PARTIES AND (C) THE ABSENCE OF PREJ-

UDICE TO THE INTERNATIONAL IS IN DIRECT

CONFLICT WITH HOLDINGS OF THE THIRD AND

OTHER CIRCUITS APPLYING THE GLUS TEST

In Glus v. G.C. Murphy Co., 562 F.2d 880 (8d Cir. 1977),

the Court of Appeals for the Third Circuit held that where a

Title VII plaintiff has failed to name her international union

in an EEOC charge that names her local union, the district

22The tests followed in other circuits properly balance these pol-

icies against the equally-strong policy of affording “complete re-

dress of legitimate grievances without undue encumbrance by pro-

cedural requirements especially when demanding full technical

compliance would have no relation to the purposes for requiring

those procedures in the first instance.” Glus v. G.C. Murphy Co.,

562 F.2d 880, 888 (8d Cir. 1977). Accord Eggleston v. Chicago Jour-

neymen Plumbers’ Local 130, 657 F.2d 890, 907 (7th Cir. 1981),

cert. denied , 455 U.S. 1017 (1982). See generally Turner v. Orr,

804 F.2d 1223, 1227 (11th Cir. 1986), quoting Sanchez v. Standard

Brands, Inc., 431 F.2d 455, 460-61 (5th Cir. 1970) (discussed below):

‘Mindful of the remedial and humanitarian underpinnings

of Title VII and of the crucial role played by the private liti-

gant in the statutory scheme, courts consistently have been

extremely reluctant to allow procedural technicalities to bar

claims brought under the Act. Consequently, courts confront-

ed with procedural ambiguities .. . have, with virtual unanim-

ity, resolved them in favor of the complaining party.’ ”

court must determine whether the action nevertheless may

proceed against the international in light of the following

factors:

“1) whether the role of the unnamed party could

through reasonable effort by the complainant be ascer-

tained at the time of the filing of the EEOC complaint;

2) whether, under the circumstances, the interests of a

named are so similar as the unnamed party’s that for

the purpose of obtaining voluntary conciliation and com-

pliance it would be unnecessary to include the unnamed

party in the EEOC proceedings; 3) whether its absence

from the EEOC proceedings resulted in actual prejudice

to the interests of the unnamed party; 4) whether the

unnamed party has in some way represented to the com-

plainant that its relationship with the complainant is to

be through the named party.”

562 F.2d at 888. By refusing to adopt and apply this test

below, the Ninth Circuit has put itself in direct conflict with

the Third Circuit’s decision in Glws and with decisions of the

Sixth, Seventh, Eighth and Tenth Circuits adopting and ap-

plying Glus.??

The Glus court arrived at this test by striking a reason-

able balance between the competing policies at stake (562

F.2d at 888 (emphasis added; footnotes deleted)):

36th Cir.: Romain v. Kurek, 836 F.2d 241, 245-46 (6th Cir. 1987);

7th Cir.: Eggleston v. Chicago Journeymen Plumbers’ Local 130,

657 F.2d 890, 904-08 (7th Cir. 1981), cert. denied, 455 U.S. 1017

(1982); 8th Cir.: Greenwood v. Ross, 778 F.2d 448, 451 (8th Cir. 1985)

(citing Eggleston ); 10th Cir.: Romero v. Union Pac. R.R., 615 F.2d

1308, 1811-12 (10th Cir. 1980). District courts in other circuits also

have adopted the Glus test. E.g., lst Cir.: Denny v. Westfield

State College, 25 Fair Empl. Prac. Cases 957, 961-62 (D. Mass.

1981); 2d Cir.: Lobos v. Aeromexico, IAM Dist. 146, 18 Empl. Prac.

Dec. {| 8886, at 5662-64 (S.D.N.Y. 1978); 4th Cir.: HEOC v. Charles-

ton Elec. Joint Apprenticeship Training Comm., 587 F. Supp.

528, 529-31 (S.D. W. Va. 1984); 5th Cir.: Mathews v. Houston Inde-

pendent School Dist., 595 F. Supp. 445, 446-48 (S.D. Tex. 1984);

llth Cir.: Wong v. Calvin, 87 F.R.D. 145, 147-50 (N.D. Fla. 1980);

Williams v. Southern Bell Tel. & Tel. Co., 464 F. Supp. 367, 370-71

(S.D. Fla. 1979).

“The purpose of requiring an aggrieved party to re-

sort first to the EEOC is two-fold: to give notice to the

charged party and provide an avenue for voluntary com-

pliance without resort to litigation. [Citations omitted. ]

‘“.. [MJuch of the initiation of charges with the

EEOC is done by laymen, as was true in the instant

case. We cannot believe Congress intended that a per-

son filing charges should accurately ascertain, at the

risk of later facing dismissal of their suit, at the time

the charges were mode, every separate entity which in

some way may have violated Title VII.

“In the instant case, Glus in her complaint to the

EEOC charged her employer and her local union with

sex discrimination. Whether she could foresee at that

stage in the proceedings the necessity and desirability

of adding the International we cannot say. /t would

seem reasonable from the standpoint of the complain-

ant that if voluntary compliance could not be ob-

tained through the EEOC from her employer or her

local union the addition of the International would

make little, if any difference . . . Consideration of

these factors [2.e., the four factors quoted at p. 15

above] should be initially in the hands of the district

court. The goal of conciliation without resort to the al-

ready overburdened federal courts is of great impor-

tance and should not be lost. However, equally impor-

tant is the availability of complete redress of legitimate

grievances without undue encumbrances by procedural

requirements especially when demanding full and tech-

nical compliance would have no relation to the purposes

for requiring those procedures in the first instance.’’4

“The balance tips the same way here. Stache sought help from

the International, got no response and had no reason to believe

(even had she been able to appreciate that the International was a

distinct legal entity) that the conciliation process would have been

any less futile if the International had participated directly. And,

while it is difficult sometimes for experienced lawyers and judges

to think like non-lawyers, surely we do not have to stretch our

imagination too far to see that a layman reasonably might not

appreciate that a local union is an entity legally distinct from the

(footnote continued on next page)

The Seventh Circuit Court of Appeals followed similar rea-

soning in Eggleston v. Chicago Journeymen Plumbers’ Lo-

cal 130, 657 F.2d 890, 907 (7th Cir. 1981), cert. denied, 455

U.S. 1017 (1982) (emphasis added; footnote omitted):

“(I]f a party has a close relationship with a named

respondent, as does the JAC, and has actual notice of

the EEOC charge, as it is likely the JAC has had, to the

extent that the JAC could have participated in concilia-

tion efforts, the JAC ‘should not be heard to ery “foul”

when later made a defendant in a suit... .’ Stevenson v,

International Paper Co., supra , 432 F. Supp. at 397-

98. \

“We question, in addition, the futility of presenting

the JAC with more of an opportunity to conciliate than

was presented herein. The Local 130 itself was unwilling

to reach settlement with Rose or any other plaintiff and

has fought their lawsuit with unmatched ferocity. Jt

would seem reasonable from Rose’s standpoint that if

voluntary compliance was not obtainable through the

EEOC from Local 130, the addition of the JAC to the

conciliation effort would have made little if any dif-

ference. This conclusion is supported by the fact that

the JAC did not settle the claims against it after Rose

filed his later EEOC charge, specifically naming the

JAC.

international with which it is affiliated. Indeed, as quoted in foot-

note 5 above, the International in its own const tution defines itself

as being composed of the locals that created it and the locals that

it subsequently chartered (Exh. 110 at 3). As the District Court

found, “Stache reasonably did not know to name the International

expressly in either charge” (App. C, Finding 48). This case is not

like cases relied on by the International below where courts found

that reasonable investigations of administrative charges solely

against employers would not also have included unions. It is (and

should be) less difficult to establish as a factual matter that a

reasonable investigation of union discrimination would include

both a local and an international union. At least, Stache was enti-

tled to pursue the opportunity to try this inherently-factual issue

and to have the resulting findings accorded appropriate respect on

appeal.

“Our reference to the oft-cited factors employed by

the Third Circuit [in Glus] and other courts in making

this determination compels the same conclusion.”

Knowing that Stache had filed a charge of sex discrimina-

tion with the EEOC, the International affirmatively chose

not to participate in the proceedings and not to contact

Stache to hear her grievances as it would have done with

other union members as a matter of course. Even with the

protection afforded by the EEOC’s Good Samaritan Rule, the

International withheld its customary procedures simply be-

cause it knew that Stache was pursuing her Title VII rights

before the EEOC.” The International elected to rely on its

local affiliate to attend the administrative hearings and dea!

with Stache. As in Eggleston, the International here should

not be heard to “cry ‘foul.’ ’’6

This case might be different if the International had ever

tried to conciliate or if its position at trial had been that it

was all a misunderstanding that the International would

have tried to correct if it had been named in Stache’s

charges. Rather, from beginning to end, the International,

25In signing her EEOC charge, how was Stache to know not only

that the International was an entity legally separate from the local

and the JAC but also that it would treat her differently than it

treated other members because it knew that she had gone to the

EEOC?

26The decision below inevitably would have the unintended and

obviously deleterious effect of affirmatively discouraging parties

not named in administrative charges from participating in concili-

ation efforts when they know that administrative proceedings are

pending and can foresee that reasonable EEOC investigations like-

ly will include them. Here, for example, it is supremely ironic that,

as a result of the decision below, the International is substantively

liable for having intentionally discriminated against Stache be-

cause it knew that she had filed a charge with the EEOC but

nevertheless is procedurally insulated from liability because

Stache did not name the International in that same charge. This

cannot be what Congress had in mind for enforcement of Title VII.

the local and the JAC presented a united front in a litigation

that they conducted with great ferocity, contesting every

possible issue (often repeatedly), challenging Stache’s credi-

bility and arguing that even if the jury and District Court

believed her testimony, the union (local and International)

did not do anything wrong. As the District Court found, it

was the International (not any of the other parties) and its

counsel who were the “ring leaders ... in leading the de-

fense in this case” (5/19/86 RT 19-20).

Il.

EITHER THE NINTH CIRCUIT’S DECISION FOCUS-

ING ON THE WORDING OF STACHE’S EEOC

CHARGES RATHER THAN ON THE SCOPE OF THE

INVESTIGATION THAT REASONABLY COULD BE

EXPECTED TO GROW OUT OF THEM CONFLICTS

IN PRINCIPLE WITH THE FIFTH AND OTHER CIR-

CUITS’ HOLDINGS APPLYING THE SANCHEZ

TEST OR IT CONFLICTS WITH THE RULE THAT

DISTRICT COURT FINDINGS SHALL NOT BE SET

ASIDE ON APPEAL UNLESS “CLEARLY ERRONE-

OUS” :

In Sanchez v. Standard Brands, Inc., 431 F.2d 455, 466

(5th Cir. 1970), the Court of Appeals for the Fifth Circuit

established the rule that the scope of a Title VII civil action

is limited not by the wording of an administrative charge but

rather by the scope of the EEOC investigation that reason-

ably can be expected to grow out of that charge. It reasoned

as follows (431 F.2d at 466) (emphasis in original):

“(T]he ‘scope’ of the judicial complaint is limited to the

‘scope’ of the EEOC investigation which can reasonably

be expected to grow out of the charge of discrimination.

“The logic of this rule is inherent in the statutory

scheme of Title VII. A charge of discrimination is not

filed as a preliminary to a lawsuit. On the contrary, the

purpose of a charge of discrimination is to trigger the

investigatory and conciliatory procedures of the EEOC.

Once a charge has been filed, the Commission carries

out its investigatory function and attempts to obtain

voluntary compliance with the law. Only if the EEOC

fails to achieve voluntary compliance will the matter

ever become the subject of court action. Thus it is obvi-

ous that the civil action is much more intimately related

to the EEOC investigation than to the words of the

charge which originally triggered the investigation.

Within this statutory scheme, it is only logical to limit

the permissible scope of the civil action to the scope of

the EEOC investigation which can reasonably be ex-

pected to grow out of the charge of discrimination.”

The Fifth Circuit rule has been adopted and applied in other

circuits.2?

The Ninth Circuit, however, appears to follow a test that

would allow a Title VII complaint to be tried on its merits

only if it is “’like or reasonably related to the allegations of

the EEOC charge.’ App. A at 9315 (emphasis added),

quoting Brown v. Puget Sound Electrical Apprenticeship

& Training Trust, 732 F.2d 726, 729 (9th Cir. 1984), cert.

denied, 469 U.S. 1108 (1985), and Oubichon v. North Amer-

ican Rockwell Corp., 482 F.2d 569, 571 (9th Cir. 1973). This

test conflicts in principle with the Sanchez test because it

focuses on the allegations in an EEOC charge rather than

on the investigation that can reasonably be expected to

grow out of those allegations.

Fi. g., 3d Cir.: Ostapowicz v. Johnson Bronze Co., 541 F.2d 394,

398-99 (3d Cir. 1976), cert. denied, 429 U.S. 1041 (1977); 4th Cir.:

Chisholm v. United States Postal Service, 665 F.2d 482, 491 (4th

Cir. 1981); 6th Cir.: EEOC v. Kimberly-Clark Corp., 511 F.2d 1352,

1363 (6th Cir. 1975), cert. denied, 423 U.S. 994 (1976); 8th Cir.:

Johnson v. Nekoosa-Edwards Paper Co., 558 F.2d 841, 846 n.11

(8th Cir.), cert. denied, 434 U.S. 920 (1977); 11th Cir.: Turner v.

Orr, 804 F.2d 1223, 1226 (11th Cir. 1986).

Relying again on its prior decision in Brown, the Ninth

Circuit then posits a rule that a Title VII complaint and an

administrative charge are not closely enough related if ‘“‘a

second administrative investigation would be redundant.”

App. A at 9315. Under this formulation, the finder of fact

apparently would be asked to compare two investigations,

neither of which will ever actually have occurred, to deter-

mine whether the second would be “redundant” of the first.

The result is an unnecessarily confusing metaphysica! exer-

cise in which the finder of fact tries to compare two hypo-

thetical investigations. Surely, it is simpler and better, as the

Fifth Circuit directed in Sanchez, for the finder of fact to

examine the evidence at trial to determine the reasonable

scope of a single investigation and thus appropriately to

balance the policy of affording all of the relief that the

merits of a claim justify against the policy of providing no-

tice and promoting informal conciliation and voluntary com-

pliance. The Ninth Circuit test muddles the factual analysis

and fails to take proper account of the policies at stake.

Whether the Ninth Circuit test conflicts in principle with

the Sanchez test or not, the decision below conflicts with the

rule that findings of fact are not to be set aside on appeal

unless they are “clearly erroneous.” Fed. R. Civ. P. 52(a).

See Hamm v. Members of Board of Regents, 708 F.2d 647,

650 (11th Cir. 1983) (Anding that reasonable EEOC investiga-

tion would not have included individual defendant named in

complaint, while ‘not entirely free from doubt,” upheld as

not “clearly erroneous’’).

Here, the Court of Appeals did not even mention that the

District Court found as a fact that a reasonable investiga-

Here, if a reasonable EEOC investigation would have encom-

passed Stache’s claims against the International (as the jury and

the District Court both found), then a “second investigation”

would have been redundant.

ee LT en

tion of Stache’s charges would have included the Interna-

tional (App. C, Finding 48) and that all of Stache’s claims

were part of a pattern of continuing sex discrimination rea-

sonably related to her EEOC charges (App. C, Finding 50).”

The Court of Appeals also made no mention of the “clearly

erroneous” test.2° All it said was: “The International’s al-

leged inaction is not so closely related to Local 20’s active

discrimination as to render a second EEOC investigation re-

dundant.” App. A at 9316. The Court of Appeals’ ipse dixit

not only flies in the face of the District Court’s findings of

fact, but it is at best counter-intuitive since the underlying

injuries that Stache complained of against all defendants

were not only “closely related” but exactly the same. In any

event, setting aside the District Court’s factual findings sub

silentio and substituting its own interpretation of the facts

conflicts with one of the most basic tenets of limited appel-

late review.

27The Ninth Circuit did note without discussion (App. A at 9314)

that the District Court had instructed the jury that it could not

hold the International liable unless it first found that a reasonable

investigation of Stache’s charges would have included her claims

against the International.

The Ninth Circuit did not discuss what standard of review it

purported to apply.

CONCLUSION

For the reasons set forth above, this petition should be

granted.

Respectfully submitted,

WILLIAM T. BISSET

555 South Flower Street

Los Angeles, California 90071

(213) 489-5140

Counsel for Petitioner

Of Counsel:

HUGHES HUBBARD & REED

555 South Flower Street

Los Angeles, California 90071

(213) 489-5140

May 16, 1989

A-1

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PATRICIA ANN STACHE,

Plaintiff-Appellant,

¥.

INTERNATIONAL UNION OF

BRICKLAYERS AND ALLIED

CRAFTSMEN, AFL-CIO; INLAND

EMPIRE BRICKMASON JOINT

APPRENTICESHIP COMMITTEE,

Defendants-Appellees,

PaTRIcia A. STACHE,

Plaintiff-Appellee,

BRICKLAYERS AND TILE SETTERS

UNION, LOCAL #20; INLAND EMPIRE

BRICKMASON JOINT APPRENTICESHIP

COMMITTEE; MASONRY BUILDERS,

_INGC.,

Defendants,

and

INTERNATIONAL UNION OF

BRICKLAYERS AND ALLIED

CRAFTSMEN, AFL-CIO,

Defendant-Appellant.

‘a

—

No. 86-6551

D.C. No.

CV-84-2022-WJR

No. 86-6576

D.C. No.

CV-84-2022-WJR

OPINION

Appeals from the United States District Court

for the Central District of California

William J. Rea, District Judge, Presiding

9309

A-2

9310 STACHE V. INT’L. UNION

Argued and Submitted

December 8, 1987—Pasadena, California

Filed August |, 1988

Before: Diarmuid F. O’Scannlain and Edward Leavy,

Circuit Judges, and Samuel P. King,* District Judge.

Opinion by Judge O’Scannlain

SUMMARY

Employment Discrimination/Courts and Procedure/Labor

The court reversed and remanded a judgment in this sex

discrimination action against an international union for the

actions of its local affiliate and held that if a complainant nei-

ther names a defendant in her administrative charges, nor

alleges facts implying that the defendant discriminated, a

Title VII action against such defendant is premature.

Appellee Bricklayers and Craftsmen International Union

directs its local affiliates to establish apprenticeship commit-

tees. Gender discrimination is prohibited. Appellant Patricia

Stache enrolled in the apprenticeship program and through-

out her apprenticeship was repeatedly sexually harassed.

Stache sought help four times from the EEOC and the Cali-

fornia Department of Fair Employment and Housing

(DFEH). The International learned of Stache’s dispute with

Local 20 through EEOC computer printouts. However, the

International did not participate in the EEOC or DFEH fact-

finding conferences held pursuant to Stache’s complaints.

Stache named the International for the first time in a com-

*The Honorable Samuel P. King, Senior United States District Judge for

the District of Hawaii, sitting by designation.

A-3

STACHE V. INT’L. UNION 9311

plaint against it in federal court claiming violations of the

California Fair Employment and Housing Act (FEHA) and

Title VII. The International raised the affirmative defense

that Stache’s failure to name it in her administrative com-

plaints barred her from pursuing her Title VII and FEHA

actions. A jury found that all defendants had violated the

FEHA. The judge found that all defendants violated Title

VIL.

[1] If, when an employee brings suit for incidents not listed

in his prior EEOC charge, the two claims are not so closely

related that a second administrative investigation would be

redundant, the EEOC must be allowed to investigate the dis-

pute before the employee may bring a Title VII suit. [2] The

International’s alleged inaction is not so closely related to

Local 20’s active discrimination as to render a second EEOC

investigation redundant. And the International had no direct

contractual relationship with Stache’s employer from which

Title VII liability could be imputed. [3] If a complainant nei-

ther names a defendant in her administrative charges, nor

alleges facts implying that the defendant discriminated, a

Title VII action against such defendant is premature at best.

COUNSEL

Joann Lach and William T. Bissett, Hughes, Hubbard &

Reed, Los Angeles, California, for the plaintiff-appellant/

cross-appellee.

Marsha S. Berzon, Altshuler & Berzon, San Francisco, Cali-

fornia, for the defendant-appellee/cross-appeliant.

Robert M. Weinberg, Washington, D.C., for amicus curiae

American Federation of Labor-Congress of Industria! Orga-

nizations.

A-4

9312 STACHE V. INT’L. UNION

OPINION

O’SCANNLAIN, Circuit Judge:

We review the interplay between state and federal adminis-

trative conciliation procedures on the one hand, and judicial

remedies on the other, in this sex discrimination action

against an international union for the actions of its !ocal affil-

iate. The international argues that the complainant’s failure

to name it in her administrative actions against the local ren-

dered her subsequent suit against the international procedur-

ally defective. We agree and reverse the decision of the

district court with respect to the international.

BACKGROUND

1. Relationship Between the Parties

The International Union of Bricklayers and Allied Crafts-

men, AFL-CIO (“International”) represents 103,000 workers

throughout the United States and Canada. The International

directs its local affiliates to establish apprenticeship commit-

tees; these committees regulate local apprenticeship matters

“except as otherwise provided in [the International’s]

constitution”, but must conform to national standards pro-

scribing gender discrimination.

Bricklayers and Tile Setters Local Union 20 of California

(“Local 20”) is a local affiliate of the International. Local 20

has its own constitution, signs its own collective bargaining

agreements, and calls its own strikes. Members of Local 20

pay dues to both Local 20 and the International.

Tne Inland Empire Brick Masons Joint Apprenticeship

Committee (“JAC”) conducts apprenticeship training pro-

grams for Local 20 members. The International takes no part

in the establishment, funding, administration, or supervision

of the JAC.

A-5

STACHE V, INT'L. UNION 9313

2. Stache's Claim

In 1980 Patricia Ann Stache became the first woman to

enroll in the apprenticeship program. Throughout her

apprenticeship, Stache was repeatedly intimidated, humili-

ated, and sexually harassed by JAC teachers, Local 20 off-

cials, and fellow workers. The record indicates that Local 20

concealed employment information from Stache, gave male

apprentices more job referrals, and took no action upon

learning that employers refused to hire Stache because of her

gender.

Stache sought help four times from the Equal Employment

Opportunity Commission (“EEOC”) and the California

Department of Fair Employment and Housing (“DFEH”).

Her first EEOC complaint named “Bricklayer Local No. 20,”

and charged that Local 20 (1) had not referred her to work;

(2) denied her a union card and a wage increase; and (3) told

her not to attend an orientation class. Stache’s second EEOC

complaint named “Bricklayers, Masons, and Tile Setters

Local No. 20.” It alleged that (1) “the Union has refused to

give me a rule book”; and (2) “the Union has failed to refer

me to jobs on the same basis as it refers the male apprentices.”

Stache’s third complaint, filed with the DFEH, named the

JAC and alleged discrimination in job referrals. Stache also

filed a complaint against her employer.

The International learned of Stache’s dispute with Local 20

through EEOC computer printouts and conversations with

Local 20 officials. However, the International did not partici-

pate in the EEOC or DFEH factfinding conferences held pur-

suant to Stache’s complaints.

Stache named the International for the first time in a com-

plaint against it, Local 20, and the JAC in federal court,

claiming violations of the California Fair Employment and

Housing Act, Cal. Gov. Code §§12900 et seg. (1980)

(“FEHA”), and Title VII of the Civil Rights Act of 1964, 42

A-6

9314 STACHE V. INT’L. UNION

U.S.C. §§ 2000e et seq. (1978) (“Title VII”). In its answer, the

International raised the affirmative defense that Stache’s fail-

ure to name it in her administrative complaints barred her

from pursuing her Title VII and FEHA actions.

At trial, the district court instructed the jury that:

If you find that Mrs. Stache filed charges with the

DFEH or EEOC and failed to name a particular

defendant as a discriminating party, then in order to

find that defendant liable, you must find that a rea-

sonable investigation of her charges would have

included claims against that defendant.

The jury found that all defendants had violated the FEHA

and awarded Stache compensatory and punitive damages.

The judge found that all defendants violated Title VII. He

granted Stache an injunction against future discrimination by

defendants, compensation for lost pay, attorney fees appor-

tioned among the International, Local 20, and the JAC in

proportion to damages, and costs. Stache appeals the appor-

tionment of attorney fees and urges that the total award

should be paid exclusively by the International. The Interna-

tional cross-appeals, urging lack of jurisdiction among other

issues. Local 20, presently undergoing bankruptcy proceed-

ings, has not appealed. The JAC has not appealed. The AFL-

CIO filed an amicus brief in support of the International.

DISCUSSION

We deal first with the International’s cross-appeal on the

jurisdictional issue. To encourage informal conciliation and

voluntary compliance with its precepts, Title VII places pri-

mary responsibility for employment discrimination cases

with the EEOC. Brown v. Puget Sound Elec. App. & Train.

Trust, 732 F.2d 726, 729 (9th Cir. 1984), cert. denied, 469

U.S. 1108 (1985). A private plaintiff must first file an EEOC

complaint against the allegedly discriminatory party before

A-7

STACHE V. INT’L. UNION 9315

bringing a Title VII suit in federal court. 42 U.S.C. § 2000e-5

(1978). However, a plaintiff's failure to file an EEOC com-

plaint does not bar her absolutely from filing a Title VII suit;

exhaustion of administrative remedies is not jurisdictional

but is merely a condition precedent to suit which a defendant

may waive or be estopped from asserting. Zipes v. Trans

World Airlines, Inc., 455 U.S. 385, 393 (1982); Boyd v. United

States Postal Serv., 752 F.2d 410, 414 (9th Cir. 1985); Fed. R.

Civ. P. 9(c).

Under California law, exhaustion of state administrative

remedies remains a jurisdictional prerequisite to a FEHA

action. Carter v. Smith Food King, 765 F.2d 916, 921 (9th Cir.

1985); Robinson v. DFEH, 239 Cal. Rptr. 908, 909 (Cal. App.

1987) (“Judicial review is unavailable until all administrative

remedies have been exhausted, and a court violating the rule

acts in excess of jurisdiction”).

The remedial purpose of Title VII and the paucity of legal

training among those whom it is designed to protect require

charges filed before the EEOC to be construed liberally.

Kaplan v. International Alliance of Theatrical Employees, 525

F.2d 1354, 1359 (9th Cir. 1975); Wrighten v. Metropolitan

Hosp., Inc., 726 F.2d 1346, 1352 (9th Cir. 1984). This stan-

dard also applies to FEHA charges filed before the California

DFEH. Carter, 765 F.2d at 924 n.10 (citing Stearns v. Fair

Employment Practice Comm'n, 6 Cal. 3d 205, 214, 98 Cal.

Rptr. 467, 472 (1971)).

[1] When an employee brings suit for incidents not listed in

his prior EEOC charge, a federal court may hear the new Title

VII claims if they are “like or reasonably related to the allega-

tions of the EEOC charge.” Brown, 75? F.2d at 729 (quoting

Oubichon v. Northern Am. Rockwell Corp., 482 F.2d 569, 571

(9th Cir. 1973)). But if the two claims are not so closely

related that a second administrative investigation would be

redundant, the EEOC must be allowed to investigate the dis-

pute before the employee may bring a Title VII suit. Brown,

A-8

9316 STACHE V. INT’L. UNION

732 F.2d at 730. See also Stallcop v. Kaiser Found. Hosp., 820

F.2d 1044, 1051 (9th Cir.)(applying same principle to DFEH

complaints), cert. denied, 108 S. Ct. 504 (1987).

[2] Stache’s Title VII complaint charged that the Interna-

tional failed to aid her when it learned of Local 20’s actions.’

But her EEOC claims were limited to charging Local 20 with

specific, active acts of discrimination. The International's

alleged inaction is not so closely related to Local 20’s active

discrimination as to render a second EEOC investigation

redundant. See Brown, 732 F.2d at 730. And the Interna-

tional had no direct contractual relationship with Stache’s

employer from which Title VII liability could be imputed.

Compare Kaplan, 525 F.2d at 1359. Even construing Stache’s

EEOC claims liberally, her charges do not encompass the

International. In any event, there was no triggering mecha-

nism by which the International was compelled to act.’

{3] If a compiainant neither names a defendan: in her

administrative charges, nor alleges facts implying that the

defendant discriminated, a Title VII action against such

defendant is premature at best. Bratton v. Bethlehem Steel

Corp., 649 F.2d 658, 666 (9th Cir. 1980). See also Kaplan, 525

'We decline to reach the issue of whether this conduct, by itself, violated

Title VII.

*Stache also mailed a letter to the International complaining of Local

20's conduct and requesting assistance, but the International denied receiv-

ing it. Under both federal and California law, the correct addressing, post-

ing, and mailing of a letter creates a presumption \hat the letter was

received by the intended party. /n re Carter, 511 F.2d 1203, 1204 (9th Cir.

1975); J. Wigmore & P. Tillers, Wigmore on Evidence § 95 n.4. However,

because Stache’s letter did not include any street address, no such presump-

tion of receipt arises. See Wagner Tractor, Inc. v. Shields, 381 F.2d 441, 446

(9th Cir. 1967); Leason v. Rosart, 811 F.2d 1322, 1325 (9th Cir. 1987)

(when receipt of improperly addressed letter is denied, trier of fact must

weigh the denial against the inference of receipt arising from proof of mail-

ing). Therefore, as a matter of law, the district court’s instruction to the jury

that the International was presumed to know of the Local's acts from

Stache’s letter is erroneous.

A-9

STACHE V. INT’L. UNION 9317

F.2d at 1359 (when EEOC complaint charged sex discrimina-

tion in a referral agreement negotiated by the international,

failure to name it in an EEOC charge against the local did not

bar Title VII suit against the international).

In its answer to Stache’s complaint, the International

timely asserted Stache’s noncompliance with the conditions

precedent to Title VII claims. See Fed. R. Civ. P. 9c).

Compare Gibson, 543 F.2d at 1263 n.1 (international waived

condition precedent when it waited until second trial to assert

procedural claim).

We conclude that Stache failed to meet the conditions pre-

cedent to a Title VII suit, and the International has not

waived them. Nevertheless, we remain mindful of the public

policy favoring liberal construction of EEOC and DFEH

complaints. However, imputing Stache’s administrative com-

plaints against Local 20 to the International would offend the

underlying purpose of Title VII — to encourage informal

conciliation and to foster voluntary compliance. See Brown,

732 F.2d at 729. And, of course, failure to name the Interna-

tional in the DFEH complaint was a jurisdictional bar to a

FEHA claim. See Carter, 765 F.2d at 921. We therefore

reverse the judgment of the district court against the Interna-

tional and remand with instructions to dismiss the complaint

against it.

Review of the other issues raised by the International on

appeal is unnecessary because of our disposition of the juris-

diction issue.

ATTORNEY FEES

Stache’s appeal claims that the district court abused its dis-

cretion in apportioning the award of legal fees among the

defendants in relation to the damages assessed by the jury.

Because we hold her Title VII action against the International

procedurally defective, we must also vacate that portion of

A-10

9318 STACHE V. INT’L. UNION

the district court’s award of attorney fees to Stache which was

payable by the International, as to which defendant she is no

longer a prevailing party. See 42 U.S.C. § 2000e-5(k); United

States v. Washington, 813 F.2d 1020, 1024 (9th Cir. 1987).

We remand to the trial court the matter of whether the alloca-

tions against Local 20 and JAC should be reconsidered in

light of this opinion.

REVERSED and REMANDED.

Nn Whale ds et nal ete CR a et ae Rw Si Rak ei Gi iit ei RO ieee ii) be Lie os:

B-1

United States Court of Appeals

FOR THE NINTH CIRCUIT

PATRICIA ANN STACHE, No. 86-6551

Plaintiff-Appellant, DC No. CV-84-2022-WJR

INTERNATIONAL UNION FILED

OF BRICKLAYERS AND FEB 27 1989

ALLIED CRAFTSMEN, Cathy A. Catterson,

AFL-CIO; INLAND age

.S. Court of Appeals

EMPIRE BRICKMASON

JOINT APPRENTICESHIP

COMMITTEE,

Defendants-A ppellees,

PATRICIA A. STACHE, No. 86-6576

— Plaintiff-Appellee, DC No. CV-84-2022-WJR

BRICKLAYERS AND TILE

SETTERS UNION, LOCAL

#20; INLAND EMPIRE

BRICKMASON JOINT

APPRENTICESHIP

COMMITTEE; MASONRY

BUILDERS, INC.,

ORDER

Defendants,

and

INTERNATIONAL UNION OF

BRICKLAYERS AND ALLIED

CRAFTSMEN, AFL-CIO,

Defendant-Appellant.

Before: O’SCANNLAIN and LEAVY, Circuit Judges, and

KING,* District Judge

* The Honorable Samuel P. King, Senior United States

District Judge for the District of Hawaii, sitting by des-

ignation.

B-2

The panel has voted to deny the petition for rehearing.

Judges O’Scannlain and Leavy have voted to reject the sug-

gestion for rehearing en banc, and Judge King has so rec-

ommended.

An active judge of the court requested an en banc vote.

Having failed to receive a majority of the votes in favor of

en banc consideration, the petition for rehearing is DENIED

and the suggestion for rehearing en banc is REJECTED.

he.

Steep

at sad

. ~

‘

;

United States District Court

Central District of California

PATRICIA ANN STACHE, CV84-2022-WJR

Plaintiff, ENTERED

v. JAN 13 1986

BRICKLAYERS AND TITLE FINDINGS OF

SETTERS LOCAL UNION 20 OF FACT AND

CALIFORNIA, INTERNATIONAL CONCLUSIONS

UNION OF BRICKLAYERS AND OF LAW

ALLIED CRAFTSMEN, AFL-CIO;

INTERNATIONAL UNION OF

BRICKLAYERS AND ALLIED

CRAFTSMEN, AFL-CIO; INLAND

EMPIRE BRICKMASONS JOINT

APPRENTICESHIP COMMITTEE,

Defendants.

After trial by the Court of plaintiff’s claim for sex dis-

crimination under Title VII of the Civil Rights Act of 1964,

42 U.S.C. 8§ 2000e, et seg. (“Title VII’’), the Court makes the

following findings of fact and conclusions of law pursuant

to Rule 52 of the Federal Rules of Civil Procedure.

Findings of Fact

1. Defendant International Union of Bricklayers and Al-

lied Craftsmen Local 20, California (‘‘Local 20’’),* is a labor

organization affiliated with Defendant International Union

of Bricklayers and Allied Craftsmen, AFL-CIO (“the Inter-

*Local 20 is sued herein under the name Bricklayers and

Tile Setters Local Union 20 of California, International Un-

ion of Bricklayers and Allied Craftsmen, AFL-CIO.

C-2

national’) and chartered by it to operate in San Bernardino

and Riverside Counties. Defendant Inland Empire

Brickmasons Joint Apprenticeship Committee (“the JAC’’) is

a joint management-labor committee, half of whose mem-

bers are members and officers of Local 20. The remaining

JAC members are representatives of employers who are sig-

natories to Local 20’s collective bargaining agreement.

2. At all relevant times, Local 20 and the JAC have ad-

ministered an apprenticeship program for bricklayers in San

Bernardino and Riverside Counties (“the apprenticeship pro-

gram’”’). The JAC’s duties include overseeing the apprentice-

ship teachers and facilities, investigating the training pro-

vided to apprentices and taking appropriate action. As stated

in their apprenticeship standards filed with the State of Cali-

fornia, it is Local 20’s and the JAC’s function, duty and re-

sponsibility to see that continuous employment is provided,

insofar as possible, to all apprentices.

3. Emanuel J. Puglisi (‘Puglisi’) was Local 20’s Busi-

ness Agent and a JAC member in 1980 and 1981 and has been

Local 20’s Business Manager from the beginning of 1982 to

the present. Louis McAteer (‘‘McAteer’’) has been Local 20’s

Business Agent and the JAC’s Secretary from the beginning

of 1982 to the present. One of the duties of Local 20’s Busi-

ness Agent is to be aware of all job opportunities for Local

20’s members and to try to match up members with jobs.

Local 20’s Business Agent and Business Manager also are

responsible for policing the collective bargaining agreement

which, among other things, prohibits discrimination on the

basis of sex.

4. In 1980, the State of Califernia began compliance ef-

forts to enforce requirements that apprenticeship programs,

such as Local 20’s and the JAC’s, admit women. At the time,

Local 20 and the JAC had no women in their apprenticeship

program.

C-3

5. Also in 1980, the Southern California Area Construc-

tion Opportunity Program (‘“SCACOP’”), a federally-funded

program whose mandate was to get more women and minor-

ities into the construction trades, requested that Local 20

and the JAC admit the plaintiff, Patricia Ann Stache

(“Stache’’), into their program.

6. In response, Local 20 and the JAC accepted Stache

into their apprenticeship program and she was to begin at-

tending bricklaying classes in September 1980 starting with

the first class of the semester, an orientation class. A day or

so later, Local 20 and the JAC requested that Stache not

come to the September orientation class because “‘it’s just

for the boys” and start instead at the next class, thereby

missing the orientation. At the orientation class, apprentices

are told about the assistance that Local 20 can provide them

in getting employment and, specifically, the employment list

from which Local 20 makes job referrals. Puglisi specifically

directed his secretary not to send notice of the orientation

class to Stache.

7. On October 4, 1980, Stache arrived at the apprentice-

ship classroom with a SCACOP representative, and met

Puglisi, who was introduced as Local 20’s Business Agent,

and the teacher, Dick Michalides (‘‘Michalides’’). In fact,

Local 20 controlled the labor representatives of the JAC

directly and controlled the employer representatiaves indi-

rectly through its power to enforce the collective bargaining

agreement. Puglisi and Michalides gave Stache a blank form

entitled “Apprenticeship Agreement” and asked her to sign

it, which she did. A month or so later, Stache received a copy

of the Apprenticeship Agreement signed by Puglisi and a

representative of the Division of Apprenticeship Standards

of the California Department of Industrial Relations

(“DAS”), which as required by law, approved and filed the

Apprenticeship Agreement. The Apprenticeship Agreement

recited that Stache had become an apprentice on October 4,

ia ie

C-4

1980, would complete her training in approximately three

years and that the JAC and Puglisi would “use their best

endeavors to secure [Stache] employment and training.” As

an apprentice, Stache was required, in accordance with the

terms of the Apprenticeship Agreement, to perform satis-

factorily all work and learning assignmenis.

8. The Apprenticeship Agreement also recited that

Stache was employed by Ford Masonry Inc. In fact, Stache

was not then and had never been employed by Ford Mason-

ry, and neither Local 20 nor the JAC ever referred her there.

Puglisi admitted on cross-examination that he lied to Mrs.

Stache and to the State of California about her being em-

ployed by Ford Masonry. When Stache questioned

Michalides, he told her that the listing of Ford Masonry in

the Apprenticeship Agreement was “just union business.”

9. Stache is the only person who has ever been inden-

tured into Local 20’s and the JAC’s apprenticeship program

without a job. All other apprentices were actually employed

by the employers listed by the JAC on their apprenticeship

agreements when they were filed with the State.

10. Stache regularly attended apprenticeship class and

quickly learned that she was the only apprentice who was

unemployed. Stache asked Michalides and Puglisi how and

when she would get a job. They repeatedly told her that they

would get her a job when they thought she was ready and

that she was not to try to get a job on her own by contacting

employers directly. Another apprentice, Curtis Thibodeaux,

heard Puglisi tell Stache, “don’t find work. We’ll find it for

you.” Not until May 1981 at a conference with the Equal

Employment Opportunity Commission (“EEOC’’) seven

months after Stache had been admitted into the apprentice-

ship program, did Puglisi tell that Stache that she could con-

tact employers directly for work.

11. At all relevant times, Puglisi and McAteer knew that

contractors on publicly-funded (state, federal and local gov-

C-5

ernment) projects were required to hire a certain percentage

of women and minorities. Puglisi also knew in late Novem-

ber or early December 1980 that bricklayers would be need-

ed at the site of a new state agricultural building, and he

informed Stache that she would be going to work soon and

should purchase bricklaying tools costing over $200. In reli-

ance cn Puglisi’s representations, Stache used her husband’s

Christmas bonus to pay for bricklaying tools.

12. The bricklaying job promised by Puglisi never mate-

rialized. In March 1980, after prodding from Stache and a

call from Ann Quick (“Quick”), a recruiter for SCACOP,

Stache and Puglisi visited the site of the state building under

construction to ask Fireside Construction Company, a signa-

tory to the collective bargaining agreement, to hire Stache.

Puglisi spoke with the foreman of Fireside outside of

Stache’s hearing, and when Fireside did not hire Stache,

Puglisi explained to Stache privately that ‘contractors don’t

like to hire women because they will leave work when their

kids get sick.” Despite his stated belief that Fireside was

refusing to hire Stache because of her sex and his knowl-

edge that Fireside was required by law to hire a woman at

this publicly-funded site, Puglisi took no action to obtain this

job for Stache.

13. By the end of April 1981, when Stache filed her first

charge of discrimination with the EEOC, Stache had been

going to bricklaying class for almost seven months but had

never been employed or referred to a job. When Stache reg-

ularly asked Puglisi about work, he told her that there were

no jobs available. Neither Puglisi nor Michalides ever told

Stache about Local 20’s weekly employment list, from which

Local 20 referred unemployed bricklayers to work.

14. At all relevant times, with the exception of a 12-week

period in 1982 when she was recovering from minor surgery,

Stache had been physically able and capable of doing appren-

C-6

tice bricklayer’s work. Her skills and classroom attendance

were as good as those of other apprentices and never pre-

vented her from being employed.

15. Within two weeks after Stache filed her first EEOC

charge, she started work as an apprentice bricklayer. It was

principally through the efforts of SCACOP, not Local 20 or

the JAC, that Stache obtained her first job.

16. Puglisi knew that Stache wanted to be a union mem-

ber from the time that he first met her. When she asked

before starting her first job why she did not have something

to prove she was in the union, Puglisi replied that he would

not give her a union card because Stache would not stay in

the program and if he took her dues money, he could not

return it. Stache protested that she was not going to drop

out, but she still got no union card. While working on her

first job, the foreman told Stache she could not continue

working without a union book. When Stache explained the

situation to Puglisi and again asked him for a union card, he

told her that he would give her one when he was ready.

17. Local 20 did not accept dues from Stache until one

month after she began work and then only because the

EEOC intervened. Local 20’s collective bargaining agree-

ment requried, as a condition of employment, the tendering

of union dues within seven days after work begins and

Puglisi never refused union membership to a man who had

been working as a bricklayer more than seven days. In addi-

tion, Local 20 continued to deny Stache a copy of the union’s

by-laws and constitution and collective bargaining agree-

ment provided to all members upon request despite Stache’s

repeated requests for the documents during the next two

years.

_18. At the EEOC fact-finding conference at the end of

May 1981, Puglisi told the EEOC investigator that local con-

C-7

tractors did not want to hire women bricklayers. The EEOC

investigator told Puglisi that the union should help Stache

file charges of discrimination against any employer that re-

fused to employ her, and Puglisi promised Stache and the

EEOC to do this.

19. At the EEOC conference, Puglisi admitted that

Stache’s Apprenticeship Agreement misrepresented that

Stache was employed. He promised Stache and the EEOC to

do his best to see that Stache was employed and completed

her apprenticeship, and Puglisi and McAteer repeated this

promise to Stache many times over the following years.

20. Despite these promises, Local 20 and the JAC dis-

criminated against Stache in access to job opportunities. As

Puglisi told the EEOC in May 1981, Local 20 refers members

to jobs from a list of those unemployed who sign up weekly.

When a contractor calls for employees, they are dispatched

from the top of the list, unless members are requested by

name. Although Stache signed up on the employment list,

Local 20 refused to refer her to jobs for which she was qual-

ified. In September 1981, when Stache was listed on the em-

ployment list, Local 20 referred out male apprentices who

were below her on the list or not on the list at all to a job at

Kaiser Steel. Stache repeatedly telephoned Puglisi to ques-

tion why everyone but she was working at the site and to

request the union referral necessary to gain access to the

site. Only after three weeks passed and all available male

apprentices had been referred did Local 20 refer Stache to

the jobsite.

21. Local 20’s and the JAC’s refusal to refer Stache to

jobs continued from 1982 through 1984. For over five contin-

uous months in 1982, Stache was the apprentice at the top

of Local 20’s employment list but received no job referrals.

Stache also received no referrals for the entire 12-month

period from May 1983 until May 1984 despite the fact that

C-8

she was always on Local 20’s employment list and for six of

those months was the top-listed apprentice.

22. In addition to refusing to refer Stache to jobs on an

equal basis with male apprentices, Local 20 and the JAC

denied Stache information regarding where others were

working so that she could approach emplcyers directly for a

job. Local 20’s and the JAC’s practice is to tell male members

of Local 20 what jobs are in progress even if the union has

received no requests for bricklayers. McAteer also kept his

own list of ongoing bricklaying jobs which he would show to

any male member who asked about jobs. Before Stache filed |

this action, Puglisi and McAteer never suggested an employ-

er for her to contact or show her any list of possible jobs.

They consistently told her that there was no work and that

they had done everything they could to help her.

23. Local 20 and the JAC have admitted that two em-

ployers, Dave Wilshire and the Piccoli Brothers, refused to

consider Stache for employment because of her sex. Despite

their promise to the EEOC, Local 20 and the JAC did not

assist Stache in filing charges of discrimination against

these employers and did not inform Stache of the facts so

that she could complain to the EEOC.

24. The foreman of another employer, Masonry Build-

ers, Inc., told Stache and McAteer that Stache was hired and

would be called to work by Masonry Builders. When Stache

learned that the bricklaying work was being completed with-

out her, contrary to the foreman’s promises, she appealed to

McAteer for assistance. McAteer told Stache that “the vice-

president of Masonry Builders said he’s not having any

goddam women on his job site, that women were nothing but

trouble.”’ McAteer knew it was a violation of the collective

bargaining agreement for an employer to refuse to employ

Stache because of her sex, but he told Stache that he could

do nothing about Masonry Builder’s refusal to call her to

work.

C-9

25. The statistics confirm that without Local 20’s and the

JAC’s job referrals and assistance in finding jobsites given

to male apprentices and without Local 20’s and the JAC’s

help in opposing employers’ discrimination, Stache lost job

opportunities. Male apprentices worked an average of six

times more hours than Stache worked during 1982 (adjusted

for the period of Stache’s unavailability as a result of sur-

gery), an average of two-and-one-half times more hours than

she worked during 1983 and an average of twice as many

hours as she worked during 1984. Throughout the last five

years, Stache has consistently ranked low among appren-

tices in hours worked, and the likelihood that her hours

would be so low randomly, without the influence of an ex-

ternal force such as discrimination, is one in 1,000. Out of the

last five years, Stache has been unemployed at least three

full years (October 1980 to May 1981, all of 1982, May 1983

to May 1984, September to December 1984) as well as small-

er periods of weeks and months between jobs. No male ap-

prentice has been unemployed a full year, let alone three

such years. Had she not been discriminated against, Stache

would have worked at least as many hours as the average

male apprentice and most likely would have worked substan-

tially more because of the preference accorded women on

publicly-funded jobs.

26. On more than one occasion, Stache specifically asked

Puglisi and McAteer if she was required to be hired on pub-

licly-funded jobs, and both denied this despite their admitted

knowledge of this fact. McAteer specifically knew that wom-

en were required to be hired on state and local government

public works jobs, and though he received lists of such jobs

from the Department of Apprenticeship Standards, he never

advised Stache of the list or any job on the list.

27. In addition to being denied work, Stache was the

target of abuse and intimidation at work and in class be-

cause of her sex. Officials of Local 20 and the JAC singled

C-10

out Stache and stressed to her in a manner never done to

men the “horrors” of bricklaying work, telling her that she

would break her back, cut off her hands, fall off scaffolding

or become a hunchback doing bricklaying work. On one job

site, McAteer told Stache she had to be careful around the

guys because she could be raped.

28. At the Kaiser Steel jobsite, Michalides, Stache’s ap-

prenticeship teacher, repeatedly gathered at breaks with

other apprentice and journeymen bricklayers at the tunnel

where Stache was emerging and threatened to rape her. On

at least one occasion, Michalides repeatedly screamed

“screw you” to Stache. Michalides testified that, because of

his authority as an apprenticeship teacher, the apprentice

bricklayers at the Kaiser Steel jobsite would have listened

to him. However, instead of stopping the harassment,

Michalides participated in and encouraged it, with the result

that Stache’s work environment became intimidating, hostile

and offensive. When Stache told Puglisi and McAteer about

this incident at a fact-finding conference before the EEOC

on her second charge of discrimination, they laughed.

28. The Chairman of the JAC, Stephen Winegardner, a

local masonry contractor who had work for apprentices, re-

peatedly responded to requests to hire Stache by saying that

he would hire her only “if he was ten years younger and she

was good in bed.” Stache repeated Winegardner’s comment

to Puglisi, Local 20’s attorney and her apprenticeship teach-

er at an apprenticeship class, but Winegardner’s refusal to

hire on the basis of sex was never investigated by anyone at

Loca! 20 or the JAC. When, after the filing of this lawsuit,

Winegardner finally agreed to hire Stache on a publicly-

funded job, McAteer told Stache that Winegardner did so

reluctantly and would “make her life a living hell.”

29. Throughout the five years of her apprenticeship, of-

ficials of Local 20 and the JAC stated to Stache and others

that women are not physically able to do bricklaying work

C-11

(despite the lack of any physical requirements for admission

into the apprenticeship program, stated cr othewise), that

women belonged at home and that employers would not hire

women.

30. In early 1984, after Stache had indicated her inten-

tion to sue Local 20 and the JAC, a male apprentice urinated

on Stache’s bricklaying work during class in front of her, her

apprenticeship teacher and her classmates, yelling, at one

point, “Women don’t belong in the union because they can’t

take the shit.”’ The apprenticeship teacher failed to discipline

the male apprentice so as to prevent the incident from recur-

ring, and when the full JAC later considered the incident, it

decided not to discipline the apprentice or request an apolo-

gy. Stache asked an official of Local 20 and the JAC to file a

grievance against the offending apprentice. The response

was that there was “no reason to file a grievance. We’re not

going to do anything.”

31. Stache began to fear for her physical safety in the

apprenticeship program. Though she had told only Puglisi

and McAteer of her intention to bring this lawsuit, other

bricklayers learned of her intent to sue, presumably from

Local 20 and JAC officials, and reacted angrily. One appren-

tice threatened her, asking first “Are you the broad suing

the Union?” and then telling her “you know the Union has a

contract out on you.” Stache was concerned enough to raise

this matter with her teacher, who laughed it off and took no

action, although he knew that Stache took the matter seri-

ously. On another occasion, McAteer told Stache that all the

contractors in California knew of this case and that she

would never work again. He also said that everyone in the

union knew about Stache’s lawsuit and that she should be

careful on the jobsite. McAteer also told the apprenticeship

class that Local 20 and the JAC could not afford materials

for the class because Stache was suing the union, turning

—————————————————

C-12

the other apprentices against Stache and causing at least

one to demand that she drop her lawsuit.

32. Based on a 1970 census of women in the workforce,

the State of California set 18.3% women as the goal for the

JAC to achieve in its apprenticeship program. Despite at

least seven written applications of women seeking entry into

Local 20’s and the JAC’s apprenticeship program since 1980

and the admission of over 35 new apprentices during that

time, Stache has remained the only woman apprentice in the

apprenticeship program. From 1980 until after the filing of.

this lawsuit, Stache has remained the only woman member

of Local 20, which has had between 500-700 members.

33. Local 20 has articulated no legitimate, nondiscrimi-

natory reason for its differential treatment of Stache in ad-

mission to the union.

34. Local 20 and the JAC have articulated no legitimate

nondiscriminatory explanation for their differential treat-

ment of Stache in admission to the apprenticeship program.

35. Local 20 and the JAC have articulated no legitimate

nondiscriminatory reason for their failure to refer Stache to

jobs on an equal basis with male apprentices and to advise

her of possible job opportunities. The evidence indicates that

Local 20 and the JAC attempted to conceal from Stache the

avenues available to her to obtain work. While Local 20 and

the JAC contend that no work in fact existed, the employ-

ment of male apprentices belies this. Regardless of whether

males were employed as a result of union referrals, Local

20’s and the JAC’s knowledge of where other apprentices

were employed was never communicated to Stache. Because

of her sex, Local 20 and the JAC concealed from Stache

information about publicly-funded jobs on which they knew

she was required to be hired. Local 20 and JAC officials told

Stache that if she wanted to be a bricklayer, she could not

C-13

accept part-time work in any other field and would be

dropped from the apprenticeship program if she did.

36. Local 20 and the JAC have articulated no legitimate,

nondiscriminatory reason for the sexual harassment of

Stache by the JAC Chairman and her apprenticeship teacher.

In addition, Local 20 and the JAC failed to remedy known

harassment and threats against Stache made by their offi-

cers and supervisors and by other apprentices made because

of her sex or in retaliation for this lawsuit. This harassment,

along with statements of discriminatory or retaliatory intent

by agents and officers of Local 20 and the JAC and the ab-

sence of any other woman in the apprenticeship program

during the last five years, establish that any reason stated

by Local 20 and the JAC for their actions is a pretext for

discrimination.

37. From 1980 to the present, on the basis of sex, Local

20 and the JAC have continuously treated Stache differently

from male apprentices and have denied her benefits to which

she was entitled. This occurred as part of a policy, pattern

and practice designed to force her to drop out of their ap-

prenticeship program.

38. Stache is a member of the International, and the

International receives a portion of the dues money she pays

to Local 20.

39. The International’s Constitution mandates that all

affiliated local unions must conform to the Constitution and

to the National Apprenticeship and Training Standards for

Bricklaying subscribed to by the International. Both the

International’s Constitution and the National Apprentice-

ship Standards prohibit discrimination on the basis of sex by

an affiliated local union, and the International can remove

the officers and revoke the charter of a local union which

knowingly violates this prohibition.

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40. The International learned about Stache’s first charge

of sex discrimination shortly after it was filed in April 1981.

Prior to the EEOC’s fact-finding conference on May 28, 1981,

Puglisi mentioned the charge to Erich Paarsch (“Paarsch’’),

a Vice President of the International. Paarsch advised

Puglisi to appear at the EEOC fact-finding conference and

to present his case, which Puglisi did. The International later

received a computer printout, dated June 30, 1981, reporting

that Stache had filed with the EEOC a charge of sex discrim-

ination naming Local 20.

41. Stache wrote to the International in July 1982 ex-

plaining the facts of her situation and asking for the

International’s help in stopping discrimination against her.

The letter was addressed and mailed to the International at

the Bowen Building, wherein International had its headquar-

ters. The letter was never returned to plaintiff. This gives

rise to an inference that International had notice of the con-

tents of the letter. The International did not follow its gen-

eral practice and policy to respond to a specific complaint of

discrimination received from a member of a local union by

investigating that complaint, and it did not treat the letter

as a formal charge under procedures established in the

International’s Constitution.

42. In 1983, the International received a second comput-

er printout, dated September 30, 1983, reporting Stache’s

second charge of sex discrimination filed September 27, 1983.

43. In January 1984, Francis M. Bachofer, a Vice Presi-

dent of the International, was told by Puglisi that Stache

was going to commence a lawsuit, which she in fact did two

months later.

44, Even without considering its receipt of the computer

printouts, the International knew or should have known that

Local 20 was discriminating against Stache on the basis of

sex.

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45. The International had the power to stop the Local 20

from discrimination against Stache, but it took no remedial

action. Contrary to its policy to treat as a formal charge

under procedures established in the International’s Consti-

tution any complaint that could not be satisfactorily resolved

informally, the International never treated Stache’s unre-

solved allegations as formal charges. The only explanation

offered by the International for the differential treatment of

Stache was that it treats members who have filed charges

of discrimination with the EEOC differently than other com-

plaining members because it “feels” that they already have

legal counsel. The International has not articulated a legiti-

mate, nondiscriminatory reason for this different treatment

of Stache.

46. Stache filed her first charge of discrimination with

the EEOC on April 17, 1981, alleging sex discrimination in

the apprenticeship program beginning in October 1980.

Shortly after conducting the fact-finding conference on her

first charge, the EEOC wrote to Stache asking her to contact

the agency. She immediately spoke with the EEOC investi-

gator by telephone and did not hear anything further from

the agency until approximately four months later, in Octo-

ber 1981, when she received a notice of right to sue on her

first charge. The notice indicated that the EEOC was closing

its investigation solely because Stache had failed to respond

to the notice sent more than 30 days earlier. Since she had

never failed to respond to an EEOC notice, Stache contacted

the EEOC and explained that she had _ responded

telephonically to the notice. At that time, she requested that

the investigation be reopened. Based on assurances from the

EEOC that the investigation would be reopened, Stache rea-

sonably believed that the EEOC had withdrawn the notice

of right-to-sue, had reopened Stache’s case, and from Feb-

ruary 1982 to August 1983 was investigating the charge.

Stache’s failure to sue within 90 days of receiving the right-

C-16

to-sue notice on her first charge was reasonable given the

assurances of the EEOC.

47. In August 1988, when Stache learned for the first

time that the EEOC’s investigation of her first charge had

not been reopened and was not pending, she filed a second

charge of discrimination. In doing so, Stache reasonably re-

lied on the EEOC’s advice to file a charge of continuing dis-

crimination seeking relief for all the discrimination she

claimed to have suffered and to be continuing to suffer. Be-

cause discrimination was continuing at all times, both of

Stache’s EEOC charges were timely. Stache received her

notice of right to sue on her second charge sometime after

December 29, 1983, and timely filed this lawsuit within 90

days.

48. The International was adequately named in Stache’s

first and second charges. Stache was not represented by an

attorney at any time before 1984, and she reasonably did not

know to name the International expressly in either charge.

The International suffered no prejudice because it knew of

the first EEOC charge expressly naming its affiliated local

before the first fact-finding conference. Reasonable investi-

gation by the EEOC of Stache’s first charge (which did not

occur through no fault of Stache) would have disclosed that

Paarsch knew of Stache’s charge from oral discussions with

Puglisi and that the International did not exercise its powers

to take action. A reasonable investigation of Stache’s second

charge (which did not occur because Stache requested her

notice of right to sue) would have included the International.

49. The JAC was adequately named in Stache’s first and

second charges because representatives of the JAC actually

participated in the corresponding fact-finding conferences

and a reasonable investigation by the EEOC of the allega-

tions of discrimination in the apprenticeship program would

have included the JAC.

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50. All of Stache’s claims are part of a pattern of con-

tinuing sex discrimination reasonably related to her charges. ,

Stache’s sexual harassment claims are not sufficiently differ-

ent from her EEOC charges as to preclude suit. Stache ap-

prised the EEOC of her harassment claims when her second

charge was filed and investigated, thereby doing everything

necessary to bring them within the scope of the administra-

tive process.

51. The fact that Stache is a woman or had asserted her

Title VII rights was a factor that made a difference in each

of defendants’ acts and omissions in controversy. As a direct -

and proximate result of defendants’ discrimination, Stache

has suffered financial losses, which include lost wages (in-

cluding wage increases and overtime) and contributions for

her pension and medical insurance. Some of these lost

wages, including future wages, should be calculated at

journeyman’s rates because, but for defendants’ discrimina-

tion, she would have been earning wages at those rates.

CONCLUSIONS OF LAW

1. The Court has jurisdiction over each defendant as a

labor organization or a joint labor-management committee

within the meaning of Title VII and over all claims asserted

by Stache. 42 U.S.C. 88 2000e(d), 2000e-2(d), 2000e-5(e).

2. As more fully described herein, Stache has estab-

lished a prima facie case of sex discrimination against all

defendants. Defendants have failed to articulate a legiti-

mate, nondiscriminatory reason for their different treatment

of her. To the extent that defendants have articulated rea-

sons for their actions or failures to act, Stache has estab-

lished that those reasons are mere pretexts for sex discrimi-

nation.

8 In violation of Title VII, Local 20 and the JAC discrim-

inated against Stache on the basis of sex in admission to

———E

C-18

their apprenticeship program and in providing employment

opportunities. 42 U.S.C. § 2000e-2(d).

4. In violation of Title VII, Local 20 excluded Stache

from membership because of her sex. 42 U.S.C. § 2000e-

2(c)(1).

5. In violation of Title VII, Local 20 failed and refused

to refer Stache for employment in a way which deprived her

of employment opportunities on the basis of sex. 42 U.S.C.

§ 2000e-2(d).

6. In violation of Title VII, Local 20 acquiesced in em-

ployers’ discrimination against Stache by refusing to take

available action against employers which Local 20 actually

knew had refused to hire Stache because of her sex. Bonilla

v. Oakland Scavenger Co., 697 F.2d 1297, 1304 (9th Cir.

1982); Romero v. Union Pacific R.R., 615 F.2d 1308, 1310-11

(10th Cir. 1980).

7. In violation of Title VII, Local 20 and the JAC retali-

ated against Stache because she opposed practices prohibit-

ed by Title VII. 42 U.S.C. § 2000e-3(a).

8. Under Title VII, Local 20 and the JAC are liable under

the doctrine of respondeat superior for the sexual harass-

ment of Stache by their agents and supervisors. Miller v.

Bank of America, 600 F.2d 211, 213 (9th Cir. 1979). In addi-

tion, Local 20 and the JAC knew or should have known of

this harassment and harassment by other apprentices but

failed to take any corrective action, thereby subjecting

Stache to an intimidating, hostile and offensive work envi-

ronment.

9. In violation of Title VII, the International discriminat-

ed against Stache on the basis of sex because it knew or

should have known of the discrimination against Stache by

Local 20 and, despite the power to do so, failed to act.

Kaplan v. International Alliance of Theatrical & Stage

Employees, 525 F.2d 1354, 1359-60 (9th Cir. 1975).

C-19

10. In violation of Title VII, the International discrimi-

nated against Stache because of her sex and because she

opposed practices prohibited by Title VII. 42 U.S.C. 8§ 2000e-

2(c)(1), 2000e-38(a).

11. Stache is entitled to injunctive relief against defen-

dants prohibiting discrimination against her in the future.

12. The 90-day period within which to file suit on

Stache’s first EEOC charge was equitably tolled for pur-

poses of computing back pay.

13. Because defendants’ violations of Title VII are of a

continuing nature, Stache is entitled to back pay from Octo-

ber 1980 to the present and to front pay (the present value

of lost earnings reasonably certain to occur between the

date of trial and the date when Stache becomes a journey-

man bricklayer) for wages lost as a result of defendants’

discrimination, in the total amount of $90,518.00, to be paid

in the amount of $45,259.00 by the Local 20, $27,157.00 by the

JAC, and $18,102.00 by the International. This award shall

be concurrent with the jury’s award which also included

back pay and front pay. Plaintiff is not entitled to recover

twice for the same damages.

14. As the prevailing party, Stache is entitled to reason-

able attorneys’ fees and costs.

DATED: January 9, 1986.

/s/ William J. Rea

WILLIAM J. REA

United States District Judge

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.