Petition — Blue Cross Mutual Hospital Insurance v. Jenkins

Ix Tus

Supreme Court of the United States

Oocroszr Tant, 1976

No. 76-448

BLUE CROSS MUTUAL HOSPITAL INSURANCE, Mo.

BLUE SHIELD MUTUAL MEDICAL INSURANCE, mo.

Petitioners,

BEVERLY JEANNE JENKINS,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Counsel for Petitioners

——

Midwest Law Printing Co., Chicago 60601, Financial 6-3988

TABLE OF CONTENTS

Opinions Below

we

Questions Presented

Federal Statutes Involved

Statement Of The Case

Reasons For Granting The Writ

I.

The Decision Of The Seventh Circuit Involves Im-

portant Questions Of Federal Law Which Hav

Not Been But Should Be Settled By This Court

II.

The Seventh Circuit Has Rendered A Decision

Conflict With The Decisions Of Other

Appeal On The Same Matter

Conclusion

or © WwW Ww 88

Appendices:

District Court Orders

Seventh Circuit Panel Decision

Seventh Circuit En Banc Decision

Statutory Provisions

42 U.S.C. §2000(e)-5(b)

42 U.S.C. §2000(e)-5(f) (1)

28 U.S.C. §$1292(a) (1)

Federal Rules of Appellate Procedure, Rule 4(a) — 31a

Cases

Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974) .. 13

Belcher v. Bassett Furniture Indus., 376 F. Supp. 593

(W. D. Va. 1974) .... 14

Bowes v. Colgate-Palmolive Co., 416 F.2d 711 (7th Cir.

1968) 10, 16

Danner v. Phillips Petroleum, Inc., 447 F.2d 159 (5th

Cir. 1971) 15

EEOC v. General Elec. Co., 532 F.2d 359 (4th Cir.

1976) 13, 14, 17

EEOC v. Hearst Corp., 10 C.C.H. E.P.D. 10246 (W. D.

Wash. 1974) 14

EEOC v. Mack Trucks, Inc., 10 F.E.P. Cases 1028 (D.

Md. 1974) 2 14

EEOC v. Mississippi Federal Co-op. Services, 8 F. E. P.

Cases 731 (S. D. Miss. 1974) 14

EEOC v. New York Times Broadcasting Service, Inc.,

346 F.Supp. 651 (W. D. Tenn. 1973) 14

EEOC v. Rexall Drugs Co., 9 C.C.H. E.P.D. 9936 (E.

D. Mo. 1974) 14

Johnson v. Railway Express Agency, Inc., 421 U.S. 454

(1975) 12

King v. Georgia Power Co., 295 F.Supp. 943 (N. D. Ga.

1968) 10

iii

Latino v. Rainbo Bakers, Inc., 358 F.Supp. 870 (D. Col.

1973) 14

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

Cir. 1970) 9, 11

. Miscellaneous

93 BNA Lab. Rel. Rep. 6 (Sept. 6, 1976) 10

28 U.S.C. Section 1292(a) (1) 8,9

Fed. Rules Appellate Procedure, Rule 4(a) 9

In Tus

Supreme Court of the United States

Ocrosper Term, 1976

No.

BLUE CROSS MUTUAL HOSPITAL INSURANCE, INC.,

BLUE SHIELD MUTUAL MEDICAL INSURANCE, INC.,

Petitioners,

BEVERLY JEANNE JENKINS,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

The Petitioners, Blue Cross Mutual Hospital In-

surance, Inc. and Blue Shield Mutual Medical In-

surance, Inc. (hereinafter “Blue Cross-Blue Shield”),

respectfully pray that a Writ of Certiorari issue to

review the decision and judgment of the United States

Court of Appeals for the Seventh Circuit (hereinafter

called “Seventh Circuit”) entered in this cause on July

21, 1976.

a

OPINIONS BELOW

The original opinion of a panel of the Seventh Circuit

is reported at 522 F.2d 1235 and printed in the Appen-

dix hereto at 8a. The opinion of the Seventh Circuit on

rehearing en banc with Judges Tone, Pell and Bauer dis-

senting is reported at ..... F.2d ....., 13 F. E. P. Cases 52,

and printed in the Appendix hereto at 18a. The perti-

nent orders of the United States District Court for the

Southern District of Indiana, Indianapolis Division, are

printed in the Appendix hereto at la, 2a.

JURISDICTION

The decision of the Seventh Circuit sitting en banc

with Judges Tone, Pell and Bauer dissenting was

entered on July 21, 1976. This Petition for Certiorari

was filed within ninety (90) days of that date. The

jurisdiction of this Court is invoked under 28 U.S.C. Sec-

tion 1254 (1).

QUESTIONS PRESENTED

1. Does a district court’s denial of a preliminary in-

junction make appealable an order of the district court

determining that the action not be maintained as a class

action where the time for appealing the class action

determination has run and where the order denying the

preliminary injunction was not necessarily based on the

class action order?

x

2. Can a Plaintiff in a Title VII action who filed suit

prior to any attempt at conciliation by the Equal

Employment Opportunity Commission (hereinafter

referred to as the “EEOC”) raise issues in her judicial

complaint which are in no way like or related to the

allegations in her charge to the EEOC, did not grow out

of an EEOC investigation and were not the subject of

EEOC conciliation efforts prior to the filing of the com-

plaint?

3. Can a Plaintiff in a Title VII action who filed suit

prior to any attempt at conciliation by the EEOC raise

issues in her judicial complaint which were not stated in

her charge to the EEOC, did not grow out of an EEOC

investigation and were not the subject of EEOC concilia-

tion efforts prior to the filing of the complaint?

4. Can a Plaintiff in a Title VII action who filed suit

prior to any attempt at conciliation by the EEOC raise

issues of sex discrimination in her judicial complaint

where she states no sex discrimination issues in her

EEOC charge and where sex discrimination issues did

not grow out of an EEOC investigation and were not the

subject of EEOC conciliation efforts prior to the filing of

the complaint?

FEDERAL STATUTES INVOLVED

The federal statutes involved are Title VII of the Civil

Rights Act of 1964, as amended, 42 U.S.C. Section 2000e

et seg., and more particularly 42 U.S.C. Sections 2000e-

5(b) and -5(fX1), Appendix 28a-30a, and 28 U.S. C.

1292(aX1), Appendix 3la, and Rule 4(a) of the Federal

Rules of Appellate Procedure, Appendix 31a (set out in

pertinent part).

*

STATEMENT OF THE CASE

Basis of Federal Jurisdiction. Plaintiff brought this

action in the United States District Court for the

Southern District of Indiana, Indianapolis Division, pur-

suant to 42 U.S.C. Section 2000 (e)-5(f) and 42 U.S.C.

Section 1981. Jurisdiction of the Seventh Circuit was in-

voked pursuant to 28 U.S.C. Section 1292 (a (I) when

Respondent appealed the denial of her requested

preliminary injunction by the District Court.

Facts of Case. Beverly Jeanne Jenkins filed a charge

of discrimination against Blue Cross-Blue Shield with

the EEOC on June 8, 1971. (Def. App. 1, Pl. App. Ial.)

She checked the box marked “race or color” and made

the following statement of her charge:

“I feel that I am being discriminated in the terms

and conditions of my employment because of my

race, negro. I have worked for Blue Cross and Blue

Shield approx. three years during which time I

had] no problem until May, 1970 when I got my

natural hair style. Later when I came up for promo-

tion, it was denied because my supervisor, Al

Frymier, said I could never represent Blue Cross

with my Afro. He also accused me of being the

leader of the girls on the floor. The pressures I was

working under kept me upset, therefore, I asked for

a leave of absence. I was told I had to take a vaca-

tion before I could be granted a leave of absence. I

was granted a week of vacation and on my return I

was asked to take a ninety day leave, quit, or be

fired, time they said to get myself together; and at

the end of this time they would be able to place me

on another job. A White employee who associated

with me might have been denied her promotion

because of her association with me.”

| References to “Def. App.” or “Pl. App.” refer to the appen-

dices filed by the parties in the Seventh Circuit.

—ͤ—ü—ũ— ̃ ——— — ae,

——ͤ—y—— — K¼

——

Before the EEOC could investigate or attempt to con-

ciliate her charge, Miss Jenkins’ attorneys filed the

broadest conceivable class action in the United States

District Court for the Southern District of Indiana, In-

dianapolis Division, on August 28, 1972. (Def. App. 1.)

The complaint included boilerplate class action

allegations of pattern and practice race and sex dis-

crimination in hiring, assignment, dress, pay, promo-

tion, recruitment, job requirements and testing.”

2 Specifically plaintiff's complaint alleged that Blue Cross-

Blue Shield discriminated on the basis of race and sex by:

“a. Maintaining requirements for office and clerical

positions which denied blacks equal opportunity for

employment in such positions which are neither By 7

rela nor necessary to the safe, efficient conduct of

defendant’s business.

b. uiring employees to within strictly delineated

colle of dress codes and hairstyles which, not only dis-

criminate against blacks because of their race, but more

invidiously 7 the ability of blacks to rid themselves

of a vestige of slavery by requiring them to white

hairstyles and dress styles as a term and condition of

employment.

c. Failing and refusing to hire, facilitate the hiring of, or

promote — Who 2 black A* 8 or

manageri itions in departmen r

where the 4— of workers are black.

d. Assigning blacks and women to the e of-

fice and clerical jobs and virtually excluding them from

higher-paying office and clerical and managerial

positions.

3 blacks less money than whites for identical

jobs.

f. Failing and refusing to promote blacks and women

because of their race and sex.

g. Failing and refusing to hire blacks because of their

race.

h. Failing to recruit blacks on the same basis for the

same jobs as whites.

i. Utilizing paper and pencil tests which deny and tend

to deny blac persons equal opportunity for hiring and

promotion, which tests are not job-related and are not

n to the safe and efficient conduct of the defen-

dants’ business.”

(Footnote continued on following page)

a om

In her initial answers to Defendants’ first in-

terrogatories more than six months after the suit was

filed Miss Jenkins admitted that she had no real factual .

support for her boilerplate class action allegations (Def.

App. 7) nor could she elaborate meaningfully on those

allegations in her deposition.

In January, 1974, Defendants moved the District

Court to determine that the action not be maintained as

a class action. At that time, after almost a year of dis-

covery on the broadest possible basis, Plaintiff was un-

able to name another single individual with a complaint

even remotely similar to hers, and the only named al-

leged class members were three individuals who sought

unsuccessfully to intervene in her lawsuit.

After Defendants filed their motion, Plaintiffs at-

torneys rushed to Court with a petition for a

preliminary injunction and/or partial summary judg-

ment. The motion sought to enjoin Defendants’ from us-

ing a supervisory performance review system.

On July 17, 1974, the District Court issued its order

determining that Plaintiff's action not be maintained as

a class action. Appendix 2a. The District Court applied

the “like and related” test and on the basis of that test

determined that the class Plaintiff could represent in a

Title VII suit was limited to persons denied promotion

continued

The complaint requested injunetive relief inst these al-

leged practices, as well as reinstatement of the plaintiff and

back pay and other restitutionary relief for the plaintiff and

other members of the alleged elass injured because of the al-

legedly discriminatory practices.

— —

3

or not hired for wearing an Afro hair style. Since no

evidence had been presented to show that this group

would be so large that joinder would be impracticable,

the class action was not allowed.

On January 21, 1975, the District Court denied Plain-

tiff's motion for preliminary injunction and/or summary

judgment and plaintiff appealed this denial pursuant to

28 U.S.C. Section 1292 (a1). Appendix la. On

September 8, 1975, a three member panel of the United

States Court of Appeals for the Seventh Circuit ruled

that:

“Upon careful examination of the complaint and the

charge, Judges Bauer and Tone agree that the Trial

Court properly construed the particular charge

here in light of the general principles, and that the

charge does not form a proper basis for the com-

plaint that the Defendant pursued a practice and

pattern of discrimination in the manner alleged in

the complaint. Judge Tuttle would hold that the

charge was sufficient under the announced stan-

dard to support the allegations of the complaint.

The Court is unanimously of the view that the

charge does not form a proper basis under Title VII

of any complaint of discrimination on the basis of

sex.”

Appendix 17a.

Plaintiff petitioned for rehearing en banc and rehear-

ing was granted. On July 21, 1976, the Seventh Circuit

sitting en banc overturned the three judge panel decision

by a vote of 4 to 3 ruling that:

“The majority of this court conclude that the Plain-

tiff sufficiently charged both racial and sex dis-

crimination in her EEOC form in order to be eligi-

ble to represent a class composed of ‘all black and

female persons who are employed, by Blue Cross-

Blue Shield, Inc.“

Appendix 25a, 26a.

The judgment of the District Court was reversed and

the case remanded for further proceedings not inconsis-

tent with the July 21, 1976 opinion.

*

REASONS FOR GRANTING THE WRIT

I.

THE DECISION OF THE SEVENTH CIRCUIT IN-

VOLVES IMPORTANT QUESTIONS OF FEDERAL

LAW WHICH HAVE NOT BEEN BUT SHOULD BE

SETTLED BY THIS COURT.

A.

The Plaintiff appealed to the Seventh Circuit under 28

U.S.C. Section 1292(aX1), which provides for appeal of

the denial of a preliminary injunction. Yet on appeal she

sought and the Seventh Circuit granted review of the

District Court’s determination that the action not be

maintained as a class action.

The panel decision of the Seventh Circuit recognized

that class action determinations are not appealable

orders except in rare instances not invoked by Plaintiff

in this case. The panel, however, allowed review because

it held the class determination directly controlled the

subsequent disposition of the request for preliminary in-

junction.’

However, if that were so then Plaintiff's right of

appeal matured at the time the district court issued its

class action order, July 17, 1974, and her notice of

appeal of that order, which was not filed until February,

1975, was clearly untimely.

Meanwile, the District Court’s order denying the mo-

tion for preliminary injunction makes no reference

whatever to the class action order. The preliminary in-

On this issue the panel was affirmed unanimously by the

Court en bance.

2

junction request could have been denied for failure to

meet the requirements for preliminary relief even if it

had not been outside the scope of the action.

Neither the Plaintiff nor the Seventh Circuit cite

authority for allowing review of a class action deter-

mination in such circumstances.‘

Permitting appellate review of such an order in the

circumstances is in direct conflict with the express

limitations of 28 U.S.C. Sec. 1292(aX1) and with the

time limits imposed by Rule 4(a) of the Federal Rules of

Appellate Procedure.

B.

No issue is more important and fundamental to the

administration and development of the law under Title

VII of the Civil Rights Act of 1964 than the scope of the

complaint which a charging party may file in federal

district court under that statute; and that issue is raised

squarely and unavoidably by the decision of the Seventh

Circuit Court of Appeals in this case.

Under Title VII’s statutory scheme the charge filed

with the EEOC serves first to activate the investigative

and conciliatory procedures of Title VII. If, and only if,

those procedures fail to effect voluntary compliance, the

charge defines the scope of the issues for purposes of

prompt adjudication. This basic scheme was specifically

recognized by the Court in Sanchez v. Standard Brands,

Inc., 431 F.2d 455, 466 (5th Cir. 1970):

The cases cited in the Seventh Circuit panel decision are

inapposite to the questions posed by this case. The cases cited

all involved appeals directly from the orders reviewed. In one

case the order appealed from was an order of dismissal, Oatis

v. Crown Corp., 398 F.2d 496 (6th Cir. 1968), and

in another 2 of a class action order was denied. Hackett

v. General Host. Corp., 455 F.2d 618 (3rd Cir. 1972). None of

the cases cited permitted a plaintiff to get review of a class

33 issued six months prior to the filing of the notice

of appeal.

_ oe

“A charge of discrimination is not filed as a

preliminary to a lawsuit. On the contrary, the pur-

pose of a charge of discrimination is to trigger the

investigatory and conciliatory procedures of the

EEOC. Once a charge has been filed the Commis-

sion 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 a court action.”

See also Bowes v. Colgate-Palmolive Co., 416 F.2d 711

(7th Cir. 1968).

To accommodate those situations where an EEOC in-

vestigation has raised issues not specified in the charge

to the EEOC but “like or related” to those issues

specified the courts created the “like and related” test.

In King v. Georgia Power Co., 295 F.Supp. 943, 947

(N.D. Ga. 1968), the source case for the test, the court

said:

“This rule, broadly speaking, in effect limits the

civil action to that range of issues that would have

been the subject matter of the conciliation efforts

between EEOC and the employer. F the civil action

were not so limited, then the primary emphasis of

this Title would be circumvented, 1.e., an emphasis

upon voluntary settlement of all issues without an ac-

tion in the District Court.” (Emphasis added.)

In fashioning the rule the court in King particularly

heeded the EEOC’s argument:5

“The practice of the Equal Employment Opportuni-

ty Commission is to follow this general principle

5 Now even the EEOC is backing away from expansion of

charges to include “like and related” issues. In its recent

memorandum on procedures for handling pre-FY 1974

charges, the EEOC said:

For all pre-F 1974 charges, any addition of any like-

.and-related or wing-out-of issues should be avoided.”

93 BNA Lab. Rel. Rep. 6 (Sept. 6, 1976).

| an

{recited in the above text] and ta e evidence, make

findings, and seek to obtain relief with respect to

those unlawful employment a which are like

and related to the charge filed and which grow out

of the proceedings before the Commission. In order

that respondent employers will be susceptible to the

conciliation process, we believe there should be con-

sistency between the scope of relief that is available

in court and that which is likely to flow from con-

ceiliation by the Commission, and that deference

should therefore be given the Commission’s inter-

pretation of the scope of inquiry.” Jd. at 947 n. 2.

The King rule and reasoning were later approved and

followed in Sanchez v. Standard Brands, Inc., supra.

The decision of the Seventh Circuit in the present case

turns its back totally on this recognized and well-

established relationship between the charge, investiga-

tion, and conciliation by the EEOC and repudiates the

whole concept of the “like and related” test. In the pres-

ent case Plaintiff filed her lawsuit before the EEOC

had processed her charge. Her charge itself had not

been investigated by the EEOC. At the time she filed

her lawsuit the EEOC had made no attempt whatsoever

at conciliation of any of the matters alleged in her

judicial complaint. Yet, the Seventh Circuit would

reward Plaintiff for bypassing the EEOC by permitting

her to raise in her judicial complaint matters far beyond

the allegations in her charge to the EEOC.

One cannot conceive a charge narrower or more

unique than that filed in this case by the Plaintiff with

the EEOC, nor can one conceive a complaint with

allegations broader than the boilerplate class allegations

in Plaintiff's complaint. Yet, the Seventh Circuit ruled

that Plaintiff's charge was sufficiently broad to support

her complaint.

Plaintiff's attorneys have argued that the voluntary

compliance policy is satisfied by letting the EEOC seek

conciliation after the lawsuit is filed. This is like sending

in the peacemakers after the war has started. This

Court has recognized properly that filing a lawsuit dis-

courages conciliation where the single biggest induce-

ment to conciliation is the avoidance of litigation. This

Court said in Johnson v. Railway Express Agency, Inc.,

421 U.S. 454, 461 (1975): “We recognize, too, that the

filing of a lawsuit might tend to deter efforts at concilia-

tion . .”. In addition, the EEOC would lose all control

of the conciliation procedure when, as was the case here,

the plaintiff filed a class action.

There may be some justification for permitting a

plaintiff to raise in court issues not specified or raised in

a charge to the EEOC where they are like and related

issues which were developed by the EEOC in its in-

vestigation and were the subject of EEOC efforts at con-

cilation since such expansion does not circumvent the

statutory policy favoring conciliation and voluntary com-

pliance. But there can be no justification for permitting

a plaintiff's attorneys to depart totally from her charge

in a situation where there has been no EEOC investiga-

tion or attempt at conciliation.

The Seventh Circuit’s decision in this case gives a

plaintiff's attorneys a blank sheet to write on if they file

suit without giving the EEOC opportunity to investigate

and conciliate. Such a rule frustrates totally the volun-

tary compliance policy of Title VII. The only conceivable

beneficiary of such a rule would be the Title VII plain-

tiffs’ bar, since the rule would obviously be fee-

generating by encouraging the filing of lawsuits and

frustrating voluntary compliance. It has never been a

policy of Title VII to encourage litigation at the expense

of voluntary compliance and since the 1972 amendments

to Title VII primary. reliance for enforcement has been

— —

only “. . . a preliminary to a lawsuit.

the ruling of the Seventh Circuit stands, then Title

VII has become little more than an amendment to 42

U.S.C. Section 1981 to allow attorneys’ fees. That was

courts which have since reviewed Title VII and

emphasized the voluntary compliance procedures. In

Alexander v. Gardner-Denver Co., 415 U.S. 36, 44 (1974),

this Court itself said regarding the elimination of dis-

crimination under Title VII:

“Cooperation and voluntary compliance were

selected as the preferred means for achieving this

goal.”

C.

The Seventh Circuit’s decision also involves the ques-

tion of whether a plaintiff whose charge to the EEOC

did not raise issues of sex discrimination may raise those

issues in her judicial complaint.

a=Sifion

In her charge to the EEOC the Plaintiff did not men-

tion or allude to sex discrimination in any way. The only

way sex got into her charge at all was through the fact

that in her narrative statement of her charge Plaintiff

used the word “girls” to refer to some other employees

and used two personal pronouns of the feminine gender.

The Seventh Circuit determined that this was suf-

ficient to raise issues of sex discrimination in hiring,

recruitment, job requirements, pay, promotion,

assignments, dress, and testing.

No other court has departed so far from reality in

assessing the scope of a charge. A few courts have per-

mitted a plaintiff to raise sex discrimination issues in a

judicial complaint when they were not raised in the

charge, but in those cases the sex discrimination issues

had been raised by the EEOC in its investigation of the

charge. See, e.g., EEOC v. Mack Trucks, Inc., 10 F.E.P.

Cases 1028 (D. Md. 1974); EEOC v. Mississippi Federal

Co-op. Services, 8 F.E.P. Cases 731 (S.D. Miss. 1974);

Latino v. Rainbo Bakers, Inc., 358 F. Supp. 870 (D. Col.

1973). However, most courts have not permitted sex dis-

crimination issues to be raised in a judicial complaint

even where they were developed by the EEOC in its in-

vestigation if the issues were not raised by the charge.

See, e.g., Belcher v. Bassett Furniture Indus., 376 F.

Supp. 593 (W.D. Va. 1974); EEOC v. Hearst Corp., 10

C. C. H. E.P.D. 10246 (W.D. Wash. 1974); EEOC v. Rexall

Drugs Co., 9 C.C.H. E.P.D. 9936 (E.D. Mo. 1974); EEOC

v. New York Times Broadcasting Service, Inc., 346 F.

Supp. 651 (W.D. Tenn. 1973).

Most importantly, prior to this decision no court had

ever permitted a plaintiff who did not allege sex dis-

crimination in her charge to the EEOC to raise sex dis-

—15—

crimination in a judicial complaint where issues of sex

discrimination were not developed by the EEOC in its

investigation.

In summary, under the Seventh Circuit’s unique view,

all charges apparently must raise issues of sex dis-

crimination so long as the charging party is of one sex

or another. The logical extension of this ruling is that all

charges also raise issues of race discrimination, since all

charging parties belong to one race or another. To put it

even more simply, the charge to the EEOC is

meaningless—a piece of paper. Once the charging party

has signed his name to the charge, even if he does

nothing else, he has standing to file suit in court after

180 days, regardless of what the EEOC does, and raise

any and all conceivable issues of race and sex dis-

crimination.

II.

THE SEVENTH CIRCUIT HAS RENDERED A DECI-

SION IN CONFLICT WITH THE DECISIONS OF

R. OF APPEAL ON THE SAME

The decision of the Seventh Circuit conflicts with the

very decision it purported to follow as well as other cir-

cuit court decisions on the same point.

In Danner v. Phillips Petroleum, Inc., 447 F.2d 159

(5th Cir. 1971), the plaintiff's charge fairly described sex

discrimination. In Danner, the charge stated:

“They took a young roustabout and gave him my job

and laid me off. Therefore due to the fact that my

position was not eliminated, just taken from me and

given to a man, I feel that I have been mistreated

and damaged.” Id. at 161.

=

When the charging party sued in court, she sued on the

basis of sex discrimination, which had been fully in-

vestigated, and her judicial complaint, which was an in-

dividual one, not a class action, was directed at the

specific wrong which affected her.

The Seventh Circuit relies on that decision to:

(1) Disregard entirely the policy of Title VII favor-

ing conciliation and voluntary compliance;

(2) Repudiate any requirement of a nexus between

the charge and the complaint.

The Seventh Circuit decision in this case abolishes the

“like and related” test as stated in Danner. As the dis-

senters in the present case so accurately concluded:

“If the relatedness or growing-out-of requirement is

to be abolished, I would have no objection. I cannot

agree, however, that if there is such a requirement

it has been satisfied with respect to the pattern and

practice charges described above.”

it is no exaggeration to say that the Seventh Circuit’s

decision in this case conflicts with all decisions in which

the “like and related” test has been applied.

The Seventh Circuit decision also conflicts squarely

with the policy stated in Sanchez in that the Seventh

Circuit’s application of the “like and related” test

abrogates entirely the Sanchez requirement that the

“like and related” issues first be the subject of an EEOC

investigation and efforts at compliance prior to the fil-

ing of a lawsuit.

The Seventh Circuit decision even conflicts with its

own holding in Bowes v. Colgate-Palmolive Co., 416 F.2d

at 720:

“The purpose of the section [42 USC § 2000e-5(e)]

(as observed above in discussing the Union) is to

provide for notice to the charged party and to bring

to bear the voluntary compliance and conciliation

3

functions of the EEOC. Also, as noted by this court

in Choate v. Caterpillar Tractor Corp., 402 F. 2d

357, 360 (7th Cir. 1968), and in Cox v. United States

Gypsum Co., 409 F.2d 289, 291 (7th Cir. 1969),

another important function of filing the charge is to

permit the EEOC to determine whether the charge

is adequate. Finally, the charge determines the

scope of the alleged violation and thereby serves to

narrow the issues for prompt adjudication and deci-

sion. Cf. Edwards v. North Amer. Rockwell Corp.,

291 F. Supp. 199 (C. D. Calif. 1968).”

The Seventh Circuit’s decision in this case ignores en-

tirely the notice-giving function of the charge and opens

the door to, even invites, litigation which expands the

scope of alleged violations beyond any recognition and

which nullifies the voluntary compliance and concilia-

tion functions.

Finally, the Seventh Circuit’s decision conflicts with

the recent decision in EEOC v. General Elec. Co., supra.

The G.E. court held:

. . . the original charge is sufficient to support ac-

tion by the EEOC as well as a civil suit under the

act for any discrimination stated in the charge itself

or developed in the course of a reasonable investiga-

tion of that charge, provided such discrimination

was included in the reasonable cause determination

of the EEOC and was followed by compliance with

the conciliation procedures fixed in the Act.”

(Court’s emphasis.) 532 F.2d at 566.

By contrast, the Seventh Circuit has permitted Plaintiff

to raise issues (1) not stated in her charge, (2) not

developed in the course of a reasonable in-

vestigation, (3) not ineluded in a reasonable cause

determination, and (4) not subject to conciliation

procedures prior to the filing of the lawsuit.

— 1

III.

CONCLUSION

For the reasons stated herein and those expressed by

Judges Tone, Pell and Bauer in their dissenting opinion,

Petitioners respectfully request that a Writ of Certiorari

issue to review the judgment and opinion of the Seventh

Circuit.

The question of the proper scope of a Title VII lawsuit

cries out for the attention of the Supreme Court. Until it

has been settled there is no due process under Title VII

and until it has been settled the conciliation machinery

of Title VII and the policy favoring voluntary com-

pliance remain regrettably compromised.

Respectfully submitted,

WILLIAM E. ROBERTS

D. REED SCISM

Suite 2020

One Indiana Square

Indianapolis, Indiana 46204

Counsel for Petitioners

—la—

APPENDIX

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

No. IP 72-C-398

BEVERLY JEAN JENKINS,

V.

BLUE Cross MUTUAL HOSPITAL INSURANCE, INC.

ORDER

This cause is before the Court upon the plaintiff's mo-

tion, pursuant to Rule 56, for partial summary judgment

and/or a preliminary injunction.

Whereupon the Court, having considered the motion

and the briefs in support and opposition thereto, the af-

fidavits and evidence presented, and now being duly ad-

vised in the premises, hereby finds that there are

material issues of fact to be litigated between the parties

and summary judgment would be inappropriate. Plain-

tiff's motion is, therefore, DENIED.

IT IS SO ORDERED.

Dated this 21st day of January, 1975.

/s/ James E. Noland

U. S. District Judge

—2a—

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

Cause No. IP 72-C-398

BEVERLY J. JENKINS,

Vv.

BLUE CROSS MUTUAL HOSPITAL INSURANCE, Inc.,

et al.

ORDER

This cause is before the Court on motions of both par-

ties, pursuant to Rule 23 (c\1), Federal Rules of Civil

Procedure, regarding certification of this action as a

class action under Rule 23 (b\2) and upon a petition by

three non-party persons to join this action as plaintiffs.

Whereupon the Court, having considered the briefs of

the parties filed in support and opposition to the

motions, the exhibits and affidavits, and having heard

counsels’ argument on those issues, and now being duly

advised in the premises, hereby

ORDERS:

(1) That this action not be maintained as a class ac-

tion for the reason that the alleged class is not so

numerous that joinder would be impracticable and, for

the reason that there has been no showing that the

defendant has acted or refused to act on grounds

applicable to a class as a whole.

(2) The motion to intervene filed herein by the three

non-party persons is DENIED.

(3) Defendant shall have ten (10) days from the date

of this order to respond to plaintiff's motion for sum-

*

mary judgment and to answer or object to plaintiff's se-

cond supplemental inspection notice.

Dated this 17th day of July, 1974.

/s/ James E. Noland

U. S. District Judge

MEMORANDUM ENTRY

This action has been brought by the plaintiff pursuant

to Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§ 2000e et seg., and under 42 U.S.C. § 1981. Jurisdiction

is founded on 28 U.S.C. 5 1343(4). She seeks a

declaratory judgment, pursuant to 28 U.S.C. § 2201-02,

that her civil rights under Title VII have been violated,

and she purports to bring this action as a class action

under Rule 23 (b\(2), Federal Rules of Civil Procedure.

Plaintiff is a black female person who originally

entered the defendant’s employ in May 1968. Her com-

plaint alleges that she seeks a permanent injunction

against the defendant’s policy, practice, custom or usage

of discriminating against her and other black and

female persons because of race and/or sex. She alleges

such discrimination has occurred with respect to terms

and conditions of employment, compensation, and

privileges of employment in such a way as to deny equal

employment opportunity because of race and/or sex.

Plaintiff further alleges that she performed her job

with the defendant satisfactorily until April 1971, when

she was forced to take vacation, and then a ninety (90)

day leave of absence, because of her race, sex, hair, and

dress style. She asserts that she returned to work for

defendant on September 19, 1971, and continued to work

—4a—

until May 26, 1972, when she was forced to resign

because of her race and sex. She asserts that she was

denied promotion because of her race, sex, hair and

dress style. She then proceeds to allege civil rights

denials in defendant’s hiring, testing, promoting, and

pay practices. She also seeks money damages as well as

injunctive relief.

Both parties have filed motions regarding the

maintenance of this suit as a Rule 23 (b)2) class action;

plaintiff requesting it to be certified and defendant re-

questing that it not be certified. In addition, counsel for

plaintiff has filed a motion on behalf of three other per-

sons to intervene as plaintiffs herein. The Court will con-

sider these motions seriatim.

I. CLASS ACTION

Rule 23 sets out the requirements which must be met

by the plaintiff to maintain a class action. Rule 23(a) has

four such requirements, all of which must be met, and

plaintiff must also establish one of the three re-

quirements of Rule 23(b). Plaintiff herein has alleged

this to be a (b)(2) action.

The first step, of course, is to look to the allegations of

the plaintiff's complaint to see if the prerequisites for a

class action have been alleged. However, in the instant

case, the Court must take an additional step in

relationship to the complaint.

It is clear that a Title VII complaint must be viewed

in relationship to the charges filed by the plaintiff

against the defendant before the Equal Employment

Opportunity Commission [EEOC]. This must be done

because it is generally recognized, both by the Circuit

Courts and the District Courts, that the scope of plain-

tiffs complaint, and thus the scope of any class action

28

founded thereon, is necessarily limited to the scope of

the plaintiff's charges filed with the EEOC and any dis-

crimination like or reasonably related to those charges.

Oubichow v. North American Rockwell Corp., 482 F. 2d

569 (9th Cir. 1973); Macklin v. Spector Freight Systems,

Inc., 478 F. 2d 979 (D.C. Cir. 1973); Tipler v. E.I. duPont

deNemours & Co., 443 F.2d 125 (6th Cir. 1971); Sanchez

v, Standard Brands, Inc., 431 F.2d 455 (5th Cir. 1970);

Bowe v. Colgate-Palmolive Co., 416 F.2d 711 (7th Cir.

1969); EEOC v. Mobil Oil Corp., 362 F. Supp. 783 (W.D.

Mo. 1973); Latins v. Rainbo Bakers, Inc., 358 F. Supp.

870 (D. Colo. 1973); Phillips v. Columbia Gas of West

Virginia, 347 F. Supp. 533 (S.D. W.Va. 1972); Hd., 474

F.2d 1342 (4th Cir. 1973); Hecht v. CARE, Inc., 351 F.

Supp. 305 (S.D. N.Y. 1972); Beckum v. Tennessee Hotel,

341 F. Supp. 991 (W. D. Tenn. 1971); Sciaraffa v. Oxford

Paper Co., 310 F. Supp. 891 (D. Me. 1970); Burney v.

North American Rockwell Corp., 302 F. Supp. 86 (C. D.

Calif. 1969); King v. Georgia Power Co., 295 F. Supp.

943 (N. D. Ga. 1968); Reyes v. Missouri-Kansas-Texas

R. R. Co., 53 F. R. D. 293 (D. Kan. 1971); Smith v. North

American Rockwell Corp.-Tulsa Division, 50 F. R. D. 515

(N.D. Okl. 1970). Such is necessary not only to provide

for possible conciliatory action by the EEOC, but also to

“narrow the issues for prompt adjudication and deci-

sion.” Bowe v. Colgate-Palmolive Co., 416 F.2d 711, 720

(7th Cir. 1969).

Plaintiff filed her charges with the EEOC alleging

that she felt she had been discriminated against because

of race. Specifically, she asserted that she was denied

promotion because her supervisor told her she could not

represent the defendant with her Afro hair style. She

also alleged that her supervisor accused her of being the

leader of the girls on the floor. Finally, she stated that

she was required to take a vacation before the defendant

—ba—

gave her a leave of absence. These charges were filed

June 14, 1971, under the EEOC’s case number TINI-

0339. Thereafter, plaintiff filed this suit in August 1972.

The Court stayed the case pending conciliation discus-

sion on her EEOC charges. Plaintiff had received her

right to sue letter in August 1972.

Clearly plaintiff's complaint raises many issues and

makes many allegations neither like nor reasonably

related to her EEOC charge against this defendant. It is

clear that she did not raise sex before the EEOC, nor

can the Court see any reasonable relationship between

hiring, testing or many of the other allegations of the

complaint, as compared to her EEOC allegation that she

was not promoted because she had an Afro hair style.

While there is an arguable connection to race by the

allegation of hair style discrimination, such is not suf-

ficient to raise the panorama of alleged evils plaintiff

seeks to adjudicate in her complaint. Her class could,

therefore, only be composed of those persons denied

promotion or not hired for wearing an Afro hair style.

Therefore, the next question is whether such a group of

persons is so numerous as to require a class action.

No proof has been presented to the Court to show that

this group of people would be so large that joinder of

them in this action would be impracticable. Further,

there has been no allegation or proof that any other per-

sons have undergone plaintiffs alleged deprivation as

would be necessary to maintain the class under Rule 23

(b 2). Consequently, the Court must conclude that this

action would not be appropriate for class treatment and

the motion to certify the class must be DENIED.

—Ta—

II. INTERVENTION

Three persons have moved, pursuant to Rule 24(b),

Federal Rules of Civil Procedure, to intervene in this ac-

tion as plaintiffs. None of the three have filed charges

with the EEOC relating to the allegations they raise in

their motion. Further, none of the three have asserted

that they were fired, not hired or not promoted because

of their hair style. Two of them no longer work for the

defendant and allege racial discrimination in hiring and

promotion. The third is a female who still is employed

by the defendant. She seeks to join the sex discrimina-

tion portion of the plaintiff's complaint.

The Court must refuse permissive intervention in this

instance because the applicants claims do not have com-

mon questions of law and fact with the main action.

Further, as this is not a class action, the failure of these

plaintiffs to file charges with the EEOC prevents them

from raising these claims at this time. Local 179, United

Textile Workers of America, AFL-CIO v. Federal Paper

Stock Co., 461 F.2d 849 (8th Cir. 1972).

In the

United States Court of Appeals

For the Seventh Circuit

No. 75-1231

BEVERLY JEANNE JENKINS,

Plainti ff-A ppellant,

v.

Buus Cross Mutua. Hosrrral. Insurance, Ixc.,

BLux SID Morvat Mepica, Insurance, Ino.,

N Defendants-Appellees.

Appeal from the United States Distriet Court for the

Southern District of Indiana, Indianapolis Division

No. IP 72-C-398

James E. Nolan, Judge.

Arcuep May 28, 1975 — Decipep Serremsrr 8, 1975

Before Torri,“ Tone and Bauer, Circuit Judges.

Turtie, Circwt Judge. The plaintiff Beverly Jeanne

Jenkins brought this action on her own behalf and for a

class she purported to represent, charging the defendants,

Blue Cross Mutual Hospital Insurance, Inc., Blue Cross

Medical Insurance, Inc. (Blue Cross-Blue Shield), her

former employer, with racial and sex discrimination in

violation of Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000e et seg. and 42 U.S.C. § 1981. The district

court determined that the action could not as a

class action; thereafter the court denied the plaintiff’s mo-

tion for a preliminary injunction to enjoin the defendants’

promotion and employee evaluation practices, which were

alleged to have discriminatory effect.

Hon. Elbert P. United States Circuit Fifth

x Tuttle, Judge, Ctreuit,

2 *

The plaintiff appeals the denial of her requested i-

minary’ injunction, pursuant to 28 USC. § 1292 (1).

The — 12 ion which was requested would

have enjoined endants’ current employee evalua-

tion promotion practices. As the ntiff was no

Se eta co hes

cou ege irreparable inj

herself resulting from the continued use of these — 25

Rather, as the plaintiff candidly admits, it is the harm

all vy suffered by the class of present employees

which the plaintiff argues justifies enjoining the defen-

dants’ supervisory performance rating system.

Thus, the real issue which the plaintiff seeks to ap-

peal is whether she should be permitted to maintain

her suit as a class action; only if the district court erred

in denying the plaintiff the right to proceed as a repre-

sentative of a class of all past and present employees

could its subsequent refusal to grant a preliminary in-

junction be seriously challenged.

I. APPEALABILITY.

Generally a trial court’s decision that a suit is in-

appropriate to proceed as a class action is not a “final

decision” and thus cannot be appealed under 28 U.S.C.

§ 1291, 3B Moore’s Federal ice, 923.97 at 23—

1951-52. While certain limited exceptions to 28 U.S.C.

§ 1291’s uirement of a final order of the district

court have — permitting interlocutory appellate

i action determinations where those

decisions have in some sense a final effect on the action,’

these exceptions have been rejected in this circuit as a

basis for permitting an appeal from an order refusing

*

class status,“ and the plaintiff does not attempt to invoke

them. Rather, the plaintiff seeks to review the district

court’s class action determination the limited inter-

locutory appeal permitted by 28 U.S.C. § 1292(a)(1) which

provides:

“The courts of appeals shall have jurisdiction of

appeals from: (1) interlocutory orders of the dis-

trict courts . .. granting, continuing, modifying, re-

fusing or dissolving injunctions, or refusing to dis-

solve or modify injunctions, except where a direct

review may be had in the Supreme Court

While the plaintiff cites no authority for this approach,

a substantial body of case law has in fact developed

for the view that

“when injunctive relief is sought and the denial

of class action treatment has the effect of denying the

broad injunctive relief requested in the complaint,

the order is appealable under 28 U.S.C. § 1292 fa) (1)

as an order denying an injunction.”

3B Moore’s Federal Practice, {| 23.97 (1973 Supp.) at 130.

See Price v. Lucky Stores, Inc., 501 F.2d 1177 (9th Cir.

1974); Hackett v. General Host Corp. 455 F.2d 618, 622

(3rd Cir. 1972); Yaffee v. Powers, 454 F.2d 1362 (Ist Cir.

1972); Spangler v. United States, 415 F.2d 1242 (9th Cir.

1969); Oatis v. Crown Zellerbach Corp., 398 F.2d 496

(5th Cir. 1968); Shapiro v. Burnstein & Co., 386 F.2d 426

(2d Cir. 1967); Brunson v. Board of Trustees, 311 F.2d

107 (4th Cir. 1962), cert. denied, 373 U.S. 933 (1963).*

We find these authorities convincing. Certainly in

this case there is an order denying a preliminary injunc-

tion, which would permit review under the terms of

§ 1292(a)(1). Further, there can be no doubt that the

district court’s earlier refusal to certify the suit as a

class action directly controlled its subsequent decision on

the requested preliminary injunction.‘

Because the class action determination of the district

court directly controlled the subsequent disposition of

~ Kansas City Southern Industries, Inc., 479 F.2d 1259 (7th

Cir. 1973).

*See generally Note, Interlocutory from Order Striking Class

Action Allegations, 70 Colum_L.Rev. (1970).

he district court summarily denied the plaintiffs motion for

8 ry injunction without assigning any reasons for its decision.

e believe the reason the court dealt with the motion in the manner

—lla—

the request for a preliminary injunction, we believe it,

too, 22 under 28 8.0 292(a) (1). By re

fusing to certify the action as a class action, the dis-

trict court effectively precluded a grant of prelimina

injunction relief; as the plaintiff was no longer emplo

by the defendants, Blue Cross-Blue Shield, she clearly

suffered no continuing harm from the challenged pro-

motional and employee evaluation practices. r

in our view, the refusal to certify the suit as a

action limited the potential injunctive relief which the

ay obtain, and accordingly can be appealed

at this time.

Pipe & Ceramics Corp., 410 F.2d 295 (2d Cir. 1969);

Trustees, 311 F.2d 107 (4th Cir.

1962}, cert. denied, U.S. 933 (1963). We note, how-

—12a—

II. CLASS ACTION.

The —— attempted to bring this action on behalf

of a class composed of “all black and female persons

who are employed, or might be employed, by Blue Cross-

Blue Shield, Inc.,” alleging discriminatory patterns and

practices in employee 8 and job evalua-

tion. The plaintiff's Title claim asserted both racial

and sex discrimination, while her § 1981 claim asserted

racial discrimination. The district court refused to cer-

tify the action as a class action because it found that

the plaintiff’s original complaint to the EEOC was too

narrow to permit the type of broad claims of racial

and sex discrimination presented in the complaint, and

accordingly held that the plaintiff was limited by the

terms of her prior EEOC charge.’

The district court noted that nowhere in the EEOC

charge did the plaintiff specifically raise the question

of sex discrimination; the court noted that the plaintiff

in her EEOC charge did not challenge the hiring and

testing practices of Blue Cross-Blue Shield, and while

her charge that she was denied a _— because of

her Afro hairstyle had an “arguable connection to race

by allegation of hairstyle discrimination, such is not suffi-

cient to raise the panorama of alleged evils the plain-

tiff seeks to adjudicate.”

The district court determined that any class which

the plaintiff could represent must be limited by the terms

of her EEOC charge, that is, to a class of persons

denied promotion due to wearing a natural Afro hair-

style. Accordingly, the district court held that because

there was no allegation of numerosity of class members

or commonality of legal claims of a class so defined,

the plaintiff failed to allege a class which could be main-

— under Rule 23 of the Federal Rules of Civil Proce-

ure.

The district court appears not to have considered what

effect the plaintiff’s second claim based on 42 U.S.C.

§ 1981 should have on its class action determination.

In her charge to the EEOC the plaintiff all in part that

“I feel that I am being discriminated in terms and conditions

of m eupieyment botause of my san, Doge. 5 Deve wormed

for Blue Cross

42

8

In our view, the plaintiff was entitled to make the

broad allegations of racial discrimination she did, under

§ 1981. In our view this action provides a sufficient basis

for adjudicating the claims 1 in the plaintiff’s

complaint. We agree with the district court, however,

that the failure of the plaintiff to allege sex discrimina-

tion in her charge before the EEOC precludes her from

raising the issue in this proceeding.

A. 42 U.S.C. § 1981.

42 U.S.C. § 1981 provides that:

“All persons within the jurisdiction of the United

States shall have the same right in every state...

pA make and enforce contracts . . enjoyed by white

citizens

This provision has been uniformly construed to prohibit

private discrimination in ore ent. Waters v. Wtscon-

sin Steel Works, 427 F.2d 376 (7th Cir. 1970), cert. denied,

400 U.S. 911 (1970); Sanders v. Dobbs House, Inc., 431

F.2d 1097 (5th Cir. 1970), cert. denied, 401 U.S. 948

(1971); Macklin v. Spector Freight Systems, Inc., 478

F. 2d 979 (D.C. Cir. 1973). See generally Comment, Racial

Discrimination and Employment Under the Civil ts

Act of 1866, 36 U. Chi. L. Rev. 615 (1969). This court has

held that the passage of Title VII in no way impliedly

repealed § 1981, Waters v. Wisconsin Steel Works, a,

427 F. ad at 485, noting that “the legislative history of Title

VII strongly demonstrates an intent to preserve pre-

viously existing causes of action.” Id. See also Alexander

v. Gardner-Denver Co., 415 U.S. 36, 48 (1974). Indeed,

in this court’s second Wisconsin Steel Works decision,

502 F.2d 1309, 1315 (7th Cir. 1974), this court concurred

in the views of the five other cirenits which have con-

sidered the question in holding that § 1981 is available

even to those plaintiffs who have failed to pursue their

Title VII administrative remedies. See Long v. Ford

Motor Co., 496 F. 2d 500 (6th Cir. 1974); Young v. In-

ternational Telephone & Telegraph Co., 438 F.2d 757

(3rd Cir. 1971); Caldwell v. National ing Co., 443

F.2d 1044 (5th Cir. 1971); Brady v. Bristol-Myers Co.,

—l4a—

459 F.2d 621 (8th Cir. 1972); Macklin v. ae Freight

Systems, Inc., 478 F.2d 979 (D.C. Cir. 1973).

Thus, in our view, the plaintiff’s claim based upon

42 U.S.C. § 1981 alleging racial discrimination would prop-

erly state a class claim even if her other claim based

upon Title VII is impermissibly broad in light of her

EEOC charge.“ “§ 1981 is available to plaintiff without

regard to Title VII limitations.” Alpha Portland Cement

Co. v. Reese, 507 F.2d 607, 610 (5th Cir. 1975).

On the limited record before us on this appeal there

appear to be unresolved factual questions as to whether

the action can proceed as a class action. These questions

were not considered by the district court in its earlier

order denying class action treatment, based upon the

EEOC charge. Two questions appear to us to have im-

portance in determining whether plaintiff can serve as a

representative for those black employees who allegedly

have been injured by the defendants’ discriminatory em-

ployee evaluation and promotion practices, First, the

plaintiff resigned her employment—but alleges that she

did so due to some form of coercion; secondly, it ap-

pears that many of the evaluation and promotion prac-

tics complained of in the complaint were instituted after

the plaintiff left the defendants’ employ.

The plaintiff must be a member of the class which

she seeks to represent, with sufficient interest in the out-

come to assure that she will adequately and fairly repre-

sent the class. Fed.R.Civ.P. 23(a). e plaintiff cannot

meet these standards if she in fact voluntarily resigned her

employment for reasons unrelated to the employee evalua-

tion and promotion practices of which she now com-

plains. On remand the district court should consider these

500, 503 (6th Cir. 1974); A „ 487 216, 217 (9th

Ss. OD. ont, Gee SS a oS Se

chester Terminal Corp., 498 F.2d G41 ( . 1974).

=

8 in determining whether the requirements of

ule 23 are met.

B. Title VII.

This litigation began when the E Beverly Jeanne

Jenkins, completed an EEOC charge form on June 8,

1971 naming her former employer, Blue Cross-Blue Shield,

as the party which had discriminated against her. She

checked the box marked Race or Color“ and made the

following statement to explain what in her view con-

stituted the “unfair thing“ which had been done to her.

“I feel that I am being discriminated in the terms

and conditions of my employment because of my race,

Negro. I have worked for Blue Cross and Blue

Shield approx. three years during which time I

no problem until May, 1971 when I got my natural

hairstyle. Later when I came up for promotion

it was denied because my supervisor, Al Frymier, said

I could never represent Blue Cross with my Afro.

He also accused me of being a leader of the girls

on the floor. The pressure I was working under Kept

me upset, therefore, I asked for a leave of absence.

I was told I had to take a vacation before I could

be granted a leave of absence. I was granted a

week vacation and on my return I was asked to

take a 90-day leave, quit, or be fired, time they said

to get myself together; at the end of this time they

would be able to place me on another job. A White

employee who associated with me might have been

denied her promotion because of her association with

me.

The plaintiff received her statutory notice of her right

to sue from the EEOC on August 4, 1972.

Plaintiff filed this suit on August 28, 1972 alleging

a broad-based pattern and practice of racial and sex

discrimination against her and the class she purported

to represent in hiring, assignment, pay and promotion.“

rr

—16a—

The district court found that because the plaintiff’s

EEOC charge limited the scope of the complaint she

could subsequently file in federal court under Title VU,

any — Title VII action in federal court must be

limited to the specific issue of denial of promotion oppor-

tunities due to wearing an Afro hairstyle. On that basis,

the district court found that the plaintiff had failed to

allege that others were injured due to the same discri-

minatory practice, and accordingly the suit could not be

maintained as a class action.

Although this court has not previously enunciated a

precise rule for purposes of determining what is the

proper scope of the allegations in a complaint when com-

pared against the original charge filed with the EEOC,

we are in agreement that the rule as stated in the case of

Danner v. Phillips Petroleum Co., 447 F.2d 159 (5th

Cir. 1971), should be followed. The court in that case said:

“the correct rule to follow in construing EEOC

charges for purposes of delineating the proper scope

of a subsequent judicial inquiry is that ‘the complaint

in the civil action . . may properly encompass any

. . . discrimination like or — related to the

—17a—

allegations of the charge and growing out of such

allegations.”

Danner v. Phillips Petroleum Co., supra, 447 F.2d at 162.

Upon careful examination of the complaint and the

charge, Judges Bauer and Tone agree that the trial court

properly construed the particular charge here in light of

the general principles, and that the charge does not form

a proper basis for the complaint that the defendant pur-

sued a practice and pattern of discrimination in the man-

ner alleged in the complaint. Judge Tuttle would hold

that the charge was sufficient under the announced stan-

dard to support the allegations of the complaint.

The Court is unanimously of the view that the charge

does not form a proper basis under Title VII for any

complaint of discrimination on the basis of sex.

III. CONCLUSION.

In light of the fact that the trial court dismissed the

complaint hecause of the failure of the named plaintiff

to qualify as representative of her class under Title VII,

without giving consideration to the claim based on § 1981,

and since we conclude that the relief claimed under § 1981

need not be based on any form of claim filed with the

EEOC, we hold that the judgment of the trial court must

be reversed for further consideration of the questions

raised under Section II, A of this opinion—that is, whether

the named plaintiff terminated her employment volun-

tarily, and if she did not, whether she can qualify as a

representative of the class under Fed.R.Civ.P. 23(a).

The court, under such circumstances, will then give

consideration to what equitable relief the plaintiff may

be entitled to.

The judgment is reversed and the case is remanded

for further proceedings not inconsistent with this opinion.

A true Copy:

Teste:

iert of the United States Court of

Appeals for the Seventh Circuit

In the

United States Court of Appeals

For the Seventh Circuit

No. 75-1231

BEVERLY JEANNE JENKINS,

Plaintiff-Appellant,

V.

Bive Cross Mutrvat Hosrrral Insurance, Inc.,

Bive Sm Mutrvat Mepicat Insurance, Ixc.,

Defendants-A ppellees.

Ap from the United States District Court for the

Southern District of Indiana, Indianapolis Division —

No. IP 72-C-398

James E. Noianp, Judge.

Renearp In Banc Janvary 26, 1976

Deciwwep Jury 21, 1976

Before Faircuitp, Chief Judge, Swycert, CuMMINGs,

Pett, Sprecner, Tone and Baver, Circuit Judges.

SprecHer, Circuit Judge. This appeal reheard in banc

concentrates on whether the alle victim of racial and

sex discrimination made sufficiently like or reasonably

related allegations in her charges to the Equal Employ-

ment Opportunity Commission to support, and out of

which could grow or reasonably be expected to , the

racial and sex allegations in her judicial complaint.

—19a—

I

The plaintiff brought this action on her own behalf

behalf of other —— similarly situated as a class

ing the — her former ——

with denying her promotions better assignments,

i terminating her employment because of

her “ sex, black styles of hair dress,” in viola-

tion of Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000e et seg. and 42 U.S.C. § 1981. The plaintiff

sought declaratory and injunctive relief, reinstatement

with backpay and other money damages.

On July 17, 1974, the district court denied the plain-

tiff's motion seeking an order pursuant to F. R. Civ. P.

23(c) (1) de i that the action be maintainable

as a class action.“ The court stated that “a Title VII

int must be viewed in relationship to the charges

DIT.

Imploymen i mmission. e court’s

reasoning in denying certification of a class action was

that: (1) (lit is clear that she did not raise sex be-

fore the EEOC .. .”; 2?) “(while there is an —>

e allegation of hair style discri

prelimi

notice of appeal was from both the July 17, 1974 and

January 21, 1975 orders.

—20a—

Upon this appeal a panel of this court reversed the

district court’s judgment “[iJn light of the fact that

the trial court dismi the complaint because of the

failure of the named plaintiff to qualify as representa-

tive of her class under Title VII, without giving considera-

tion to the claim based on § 1981, and since we conclude

that the relief claimed under § 1981 need not be based

on any form of claim filed with the EEOC . . .” Jenkins

v. Blue Cross Mutual Hospital Insurance, Inc., 522 F. 2d

1235, 1241 (7th Cir. 1975). The case was remanded for

the district court to give consideration to whether the

plaintiff could qualify as a representative of the class

upon her § 1981 claim, which alleged only racial discri-

mination, and thereafter to consider “what equitable re-

lief the plaintiff may be entitled to.” Jd. at 1242.

II.

A petition for rehearing in banc was granted. Every

At least seven circuits, including this one, have held

that § 1981 is independent of Title VII, that Title VII

creates no procedural barriers to § 1981 actions, and that

§ 1981 is available regardless of whether one has pursued

his Title VII administrative remedies. Macklin v. Spec-

tor Fretght Systems, Inc., 478 F.2d 979, 996 (D.C. Cir.

het Or deus sete fee eS n the

s as [here

moved for a — 2 —

1

12 ; the plaintiff's A from that

whether an appeal may lie from the certify a as a class

i

—2la—

1973); Gersham v. Chambers, 501 F.2d 687, 691 (2d Cir.

0., . : Portland

Cement Co. v. Reese, 507 F.2d 607, 610 ro 1975) ;

(Sth Cir. 1974); Hill v. Americon Airli Inc., 479 F. ad

a

be b » cert

405 U.S. 916 2); Long v. Ford Motor Co., 496 F.2d

equitable relief should depend at the minimum upon

resolution of the § 1981 question. *

and remanded not only because of the § 1981 claim but

also because the plaintiff's EEOC adequately

support her judicial complaints of and sex dis-

nati

The plaintiff's charge form, filed on June 8, 1971 with

the showed a check mark in the box on the form

to indicate that the discrimination was because of “Race

1

3

or Color” but no check mark appeared in the

ceded by the word “Sex.” The explanation the

gave on the form for the discrimination was:

I feel that I am being discriminated in the terms

and conditions of my employment because of my

race, Negro. I have worked for Blue Cross and Blue

E

was denied because my rvisor, Al ier, said

I could never represent Blue Cross with my Afro.

He also accused’ mé of being the leader of the girls

the floor. The pressures I was working under

kept me upset, therefore, I asked for a leave of ab-

Nee

ve o

— 45 who associated with me might have been

denied her promotion because of her association with

me.

The plaintiff received her statutory notice of her right

to sue from the EEOC on August 4, 1972 and filed her

complaint in the district court on August 28, 1972.

The entire court accepts the standard referred to in

the panel decision as the guiding principle in its deter-

mination, namely that set forth in Danner v. Phillips

Petroleum Co., 447 F.2d 159, 162 (5th Cir. 1971):

The 2 rule to Py = wd in 1 EEOC

charges for purposes o elineating the proper scope

of a subsequent judicial inquiry is that “the com-

—23a—

plaint in the civil action . . . may properly encom-

„ discrimination like re.

[ated ‘to de allegations of the charge and growing

The majority parts with the panel in its application

of the standard. a

i | 7 S. 519, 520 (1972), the

In Haines v. Kerner, 404 U = (19 oot “ee

eas ease also unanimously decided a few

Save inter, Love v. Pullman Co., 404 US. 522, 527 (1972),

involving EEOC procedure, the Court said that “techni-

held that Title VII is to “be construed and

pled broadly „Motorola, Inc. v. McLain, 484 F.2d 1339

7th Cir. 1973), and in doing so, we have recognized

unt OC

chase are in leymen) Bee

United States Gypsum Co., 409 F.2d 289, 1 (7th —

or unable to thoroughly describe the discriminatory

FP me

The EEOC charges simply stated in laymen’s la

fuage the “unfair thing that ened” to the plain-

tiff, that is, the discriminatory sews

This policy of being “solicitous of the Title VII plain-

tiff” hep bout expressed by many courts. Gamble v. Bir-

—24a—

mingham Southern R.R., 514 F.2d 678, 687-689 (5th Cir.

1975); Danmer v. Phillips Petroleum Co., supra, at 161-2;

2 v. Standard Brands, Inc., 431 F. 2d 455, 463 (Sth

ir. 1970).

In the present case the plaintiff checked the EEOC

form box stating that the «diseriminati imination [was] because

of . . . Race or Color.” She describing the “unfair

thing done” to her by saying that “I feel that I am be-

ing discriminated in the terms and conditions of my

employment because of my race, Negro.” She said that

ber supervisor denied her a promotion because she “could

never represent Blue Cross with my Afro.” A layperson’s

description of racial discrimination could hardly be more

explicit. The reference to the Afro hairstyle was merely

the method by which the plaintiff’s supervisor allegedly

expressed the employer’s racial discrimination. The plain-

tiff stated that for three years prior to wearing her

Afro hairstyle, she had no problem. As we have said,

„a] single charge may ‘launch a full scale inquiry’” in-

to racial discrimination. Motorola, Inc. v. McLain, supra,

at 1346.

The majority agrees with Judge Tuttle’s minority posi-

tion in the panel decision that the EEOC charge was

sufficient to support the racial discrimination allegations

of the complaint. 522 F.2d at 1241. Judge Tuttle reached

the same conclusion speaking for the Fifth Circuit in

Smith v. Delta Air Lines, Inc., 486 F.2d 512 (5th Cir.

1973), where the court held that a charge alleging dis-

-rimination stemming from grooming requirements which

applied particularly to black persons constituted a suf-

ficient charge of racial discrimination when accompanied

by substantially the same general allegation of racial dis-

crimination as here.

In regard to sex discrimination, it is true that the

— 4 did not check the sex discrimination hex on the

KOC form. In Sanchez v. Standard Brands, Inc., supra,

at 462-464, the reverse situation had occurred. The plain-

tiff had checked only the box labeled “sex” and in her

judicial complaint alleged discrimination beeanse of her

“national origin.” The Fifth Cireuit said:

15

b

i

125

5

0

SR

7

8

2

2

=

.

—

ö

‘

:

f

Aap

5

8 F

25

iF

“ef

;

criminated t both black persons and females since

it could not be made to either a white person or a male.

Id., at 1089.

In Danner v. Phillips Petroleum Co., supra, at 161-163

the case relied upon the panel here in its original

decision, the court that the alleged victim of sex

discrimination adequately it to the EEOC where

= oe See Se Set ee Su te oe fact

that ition was not eliminated, jus en from me

and given to ¢ man, I fee that f have been mistreated

and -

—26a—

class composed of “all black and female persons who are

employed, or might be employed, by Blue Cross-Blue

Shield, Inc.” The panel referred to the fact that the plain-

tiff was no longer employed by the defendants at the

time the suit was filed and then’ alluded to the fact that

upon remand the district court could consider “whether

e named plaintiff terminated her employment volun-

tarily, and if she did not, whether she can qualify as a

representative of the class. Upon remand these

uestions should be considered by the district court in

e light of Franks v. Bowman Transportation Co., 44

U.S.L.W. 4356, 4357-4358 (March 24, 1976).

The judgment is reversed and the case is remanded for

further proceedings not inconsistent with this opinion.

Tone, Circuit Judge, with whom Pl. and Bauxn, Cir-

cuit Judges, join, dissenting. I agree with the majority’s

statement of the governing legal principles. My only dis-

agreement is in the reading of plaintiff’s charge filed

with the KEOC, which is quoted in full in the majority

opinion. The reader of these opinions can judge for him-

self whether the present challenges to defendant’s re-

cruitment and promotion practices, including testing, pay-

scale, and job-qualification standards (see 522 F.2d at

1240 n. 9), are “like or reasonably related to the allega-

tions of the [EHEOOC] charge and growing out of such

allegations.”* See Danner v. Phillips Petroleum Co., 447

F. 2d 159, 162 (5th Cir. 1971). It a rs to me that plain-

tiff made it clear she was not complaining about such prac-

tices when she said in her EEOC charge:

“IT have worked for Blue Cross and Blue Shield ap-

proximately 3 years during which time I [had] no

— until May 1970 when I got my natural hair

style.”

I can find nothing elsewhere in the charge that contradicts

or qualifies this statement and nothing that suggests a

*I do not include among the allegations which are not supported by

rr

observe white hair styles and dress styles (item b in footnote 9, 522 F.2d

5

:

E

1

5

e

|

i

—274a—

ttern and practice charge based on race or sex. (I at.

toh oe ignificance to the failure to check the box marked

Sex.“) e seems to me to be sa that after three

years of employment about which she has no complaints

she had ae Se Ir fashi — gta thn

fairly treated because of that. e ess -

ing out-of requirement is to be abolished, I would have

no objection. I cannot however, that if there is

to be such a requirement it has been satisfied with respect

to the pattern and practice charges described above.

—28a—

Statutory Provisions

Title VII, Civil Rights Act of 1964, Section 706(b), 42

U.S.C. Section 2000(e)-5(b):

(b) Whenever a charge is filed by or on behalf of

a person claiming to be aggrieved, or by a member

of the Commission, alleging that an employer,

employment agency, labor organization, or joint

labor-management committee controlling appren-

ticeship or other training or retraining, including

on-the-job training programs, has engaged in an un-

lawful employment practice, the Commission shall

serve a notice of the charge (including the date,

place and circumstances of the alleged unlawful

employment practice) on such employer, employ-

ment agency, labor organization, or joint labor-

management committee (hereinafter referred to as

the “respondent”) within ten days, and shall make

an investigation thereof. Charges shall be in writing

under oath or affirmation and shall contain such in-

formation and be in such form as the Commission

requires. Charges shall not be made public by the

Commission. If the Commission determines after

such investigation that there is not reasonable cause

to believe that the charge is true, it shall dismiss

the charge and promptly notify the person claiming

to be aggrieved and the respondent of its action. In

determining whether reasonable cause exists, the

Commission shall accord substantial weight to final

findings and orders made by State or local

authorities in proceedings commenced under State

or local law pursuant to the requirements of subsec-

tions (c) and (d). If the Commission determines after

such investigation that there is reasonable cause to

believe that the charge is true, the Commission

shall endeavor to eliminate any such alleged unlaw-

ful employment practice by informal methods of

conference, conciliation, and persuasion. Nothing

said or done during and as a part of such informal

endeavors may be made public by the Commission,

its officers or employees, or used as evidence in a

subsequent proceeding without the written consent

—29a—

of the persons concerned. Any person who makes

public information in violation of this subsection

shall be fined not more than $1,000 or im risoned

for not more than one year, or both. The mis-

sion shall make its determination on reasonable

cause as promptly as possible and, so far as prac-

ticable, not later than one hundred and twenty days

from the filing of the charge or, where applicable

under subsection (e) or (d), from the date upon

which the Commission is authorized to take action

with respect to the charge.

Title VII, Civil Rights Act of 1964, Section 706 (f)(I),

42 U.S.C. Section 2000(e)-5(f (1).

((i) If within thirty days after a charge is filed

with the Commission or within thirty days after ex-

piration of any period of reference under subsection

(e) or (d), the Commission has been unable to secure

from the respondent a coneiliation agreement

acceptable to the Commission, the Commission may

bring a civil action against any respondent not a

government, governmental agency, or political sub-

division named in the charge. In the case of a

respondent which is a government, governmental

agency, or political subdivision, if the Commission

has been unable to secure from the respondent a

conciliation agreement acceptable to the Commis-

sion, the Commission shall take no further action

and shall refer the case to the Attorney General

who may bring a civil action against such respon-

dent in the appropriate United States district court.

The person or persons aggrieved shall have the

right to intervene in a civil action brought by the

Commission or the Attorney General in a case in-

volving a government, governmental agency, or

political subdivision. If a charge filed with the Com-

mission pursuant to subsection (b) is dismissed by

the Commission, or if within one hundred and

eighty days from the filing of such charge or the ex-

piration of any period of reference under.subsection

—30a—

(c) or (d), whichever is later, the Commission has

not filed a civil action under this section or the At-

torney General has not filed a civil action in a case

involving a government, governmental agency, or

political subdivision, or the Commission has not

entered into a conciliation agreement to which the

person aggrieved is a party, the Commission, or the

Attorney General in a case involving a government,

governmental agency, or political subdivision, shall

so notify the person aggrieved and within ninety

days after the giving of such notice a civil action

may be brought against the respondent named in

the charge (A) by the person claiming to be

aggrieved or (B) if such charge was filed by a

member of the Commission, by any person whom

the charge alleges was aggrieved by the alleged un-

lawful employment practice. Upon application by

the complainant and in such circumstances as the

court may deem just, the court may appoint an at-

torney for such complainant and may authorize the

commencement of the action without the payment

of fees, costs, or security. Upon timely application,

the court may, in its discretion, permit the Commis-

sion, or the Attorney General in a case involving a

government, governmental agency, or political sub-

division, to intervene in such civil action upon cer-

tification that the case is of general public impor-

tance. Upon request, the court may, in its discre-

tion, stay further proceedings for not more than six-

ty days pending the termination of State or local

proceedings described in subsections (c) or (d) of

this section or further efforts of the Commission to

obtain voluntary compliance.

—3la—

28 U.S.C. § 1292:

(a) The courts of appeals shall have jurisdiction of

appeals from:

(1) Interlocutory orders of the district courts of the

United States, the United States District Court for the

District of the Cane! Zune, the District Court of Guam,

and the District Court of the Virgin Islands, or of the

judges thereof, granting, continuing, modifying, refus-

ing or dissolving injunctions, or refusing to dissolve or

modify injunctions, except where a direct review may be

had in the Supreme Court;

Federal Rules of Appellate Procedure

Rule 4:

(a) APPEALS IN CIVIL CASES. In a civil case (including

a civil action which involves an admiralty or maritime

claim and a proceeding in bankruptcy or a controversy

arising therein) in which an appeal is permitted by law

as of right from a district court to a court of appeals the

notice of appeal required by Rule 3 shall be filed with

the clerk of the district court within 30 days of the date

of the entry of the judgment or order appealed from; but

if the United States or an officer or agency thereof is a

party, the notice of appeal may be filed by any party

within 60 days of such entry. If a timely notice of appeal

is filed by a party, any other party may file a notice of

appeal within 14 days of the date on which the first

notice of appeal was filed, or within the time otherwise

prescribed by this subdivision, whichever period last ex-

pires.

ss „ „ *