Petition — Nekoosa Papers, Inc. v. Equal Employment Opportunity Commission

Supreme Court Of The United States |

OCTOBER TERM, 1977

EQuAL EMPLOYMENT OPPORTUNITY COMMISSION,

INTERVENOR, AND

LINDA JOHNSON AND THE UNITED PAPERWORKERS

INTERNATIONAL UNION, AFL-CIO,

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

E. LERoy Autrey, Esq.

Counsel for Petitioner

501 East Sixth Street

P.O. Box 960

Texarkana, Arkansas 75501

Of Counsel,

AUTREY, WEISENBERGER, LINGO & JOHNSON

501 East Sixth Street

P.O. Box 960

Texarkana, Arkansas 75501

_ - TREVATHAN PRINTING COMPANY, NEWPORT. ARKANSAS

————X —_——_———_S|CIIS>>>——eEe]_i—q~—q—q=zK==

SUBJECT INDEX

Page

OPINION BELOW ...... Vcc o 2

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QUESTIONS PRESENTEUU))ʒj)j)jhjj . 2

STATUTES, FEDERAL RULES AND

REGULATIONS INVOLVED ....................4.. 3

STATEMENT OF THE CASE ................... 0000 3

REASONS FOR GRANTING THE WRT. 6

I. Conflict With Decision of Other Courts

EE CAeads dtd daddesRrakesiecracccncceee 6

II. Important Questions of Federal Law

Which Have Not, But Should Be Settled

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CON LUSo0ů V7 y.. c 3

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AUTHORITIES CITED

CASES:

EEOC v. Continental Oil Co., 54 F. 2d 884, 14 FEP

r ⁰ð ceesedn 7

EEOC v. Hickey-Mitchell Co., 507 F. 2d 944, 8

FEP cases 1261 (CA 8, d h))ʒu ccc eee 9, 12

EEOC v. Huttig Sash and Door Co., 511 F. 2d

453, 10 FEP cases 529 (CA 5, 1975) ................ 7

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

10 FEP cases 38 (CA 6, 1975) cert. denied

423 U.S. 994, 11 FEP cases 930 (1975) .......... 7, 11

EEOC v. Missouri Pacific R. Co., 493 F. 2d 71,

7 FEP cases 177 (CA 8, 1974) .............. 6, 7, 9, 11

EEOC v. North Hills Passavant Hospital, 544

F. 2d 664, 672, 13 FEP cases 1129, 1135 (CA

% ˙ͤͤ¶cä——J K 7, 9

EEOC v. Occidental Life, 535 F. 2d 533, 536, 12

FEP cases 1300, 1302 (CA 9, 1976) (dicta)

cert. granted 45 LW 3431 (19760) 7

Jones v. Holy Cross Hospital, Silver Springs,

Inc., 64 FRD 586, 8 FEP cases 1024 (D. Md.

— ̃ ù—Ó¹m fr.. ̃ ̃ͤ RGké chee 0s 10, 11

NOW v. Minnesota Mining and Manufacturing,

11 FEP cases 720 (D. Minn. 1975) ................ 10

Occidental Life Insurance Co. v. EEOC, ——

We, ces, BD ee GUD BUM oh i cc cc ctbs deters vce 8

— Üvöa—2 ee

iii

Patterson v. American Tobacco Co., 535 F. 2d

257, 12 FEP cases 314 (CA 4, 1976), cert.

denied 45 LW 3330, 13 FEP cases 1808 (1976) ....... 9

Willis v. Allied Main Corp., 13 FEP cases 766

, 6.6 y RU uc 8 GO o dabhsc 64s euwees 10

STATUTES:

Title VII of the Civil Rights Act of 1964

(amended 1972) Section 706(b) ................... 3

r,, se docensesecéeunack 2

l 6

r eGiscdveebenteuves suns 3, 7, 9, 10

t 3

e ee 3, 7, 9

REGULATIONS:

EEOC Regulations:

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. cudececccdessveuveccrces 3, 9, 12

einne) . 3

. oo vse csceccccvcccersccccencsrseses 3

RULES:

, r 3, 8, 11

eee. esse es s ese 3

Supreme Court Of The United States

OCTOBER TERM, 1977

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

INTERVENOR, AND

LINDA JOHNSON AND THE UNITED PAPERWORKERS

INTERNATIONAL Union, AFL-CIO,

D Ü ²ĩů²Ü⸗⁰˙¼ʃ . cee. Respondents

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

Petitioner prays that a writ of certiorari issue to review

the judgment herein of the United States Court of Appeals

for the Eighth Circuit entered in the above entitled case

on June 2, 1977, petition for rehearing denied on June 24,

1977.

2

OPINIONS BELOW

The Opinion of the Court of Appeals dated June 2,

1977, is reported at 1§ FEP cases 1658 and is reprinted in

the Appendix “A” hereto. On June 24, 1977, Nekoosa’s

petition for rehearing en banc was denied as set forth in

Appendix “B” hereto. The Order of the District Court

dated June 8, 1976, was not reported but is printed in

Appendix “C” hereto. The issues presented for review by

the United States Court of Appeals were certified by order

of the District Court dated August 31, 1976 and are set forth

in Appendix “D” hereto.

JURISDICTION

The Judgement of the Court of Appeals was entered

on June 2, 1977. This Court has jurisdiction to review the

judgement by Writ of Certiorari under 28 USC §1254(1).

THE QUESTIONS PRESENTED

(1) Where private parties have pursuant to a “right

to sue letter” filed a Title VII action, may the EEOC at some

later date, either before or after the private action is con-

cluded, file a separate Title VII action covering matters not

included in the private action, or is the EEOC relegated to

permissive intervention in the pending private action?

(2) Where the EEOC has failed and refused to at-

tempt conciliation prior to a private Title VII action being

filed, may the EEOC be permitted to intervene in the

private action, and, after a stay of the action for sixty days

to permit the EEOC to attempt conciliation, expand the

scope of the action beyond the matters which the private

parties are permitted to pursue?

3

STATUTES, REGULATIONS AND RULES INVOLVED

The statutes involved are Title VII of the Civil Rights

Act of 1964 (amended 1972), Section 706(b), 42 USC

52000e-5 (b) and §706(f) (1), 42 USC §2000e-5 (f) (1), set

forth in Appendix “E” hereto. The regulations involved are

the Equal Employment Opportunity Commission Regula-

tions 29 CFR §1601.19b, §1601.22; $1601.23; §1601.25(a)

and 5160 1.25b set forth in Appendix F“. The Rules in-

volved are the Federal Rules of Civil Procedure, Rule

24(b), and Rule 42(a) set forth in Appendix “G” and Ap-

pendix H“ hereto.

STATEMENT OF THE CASE

On November 29, 1973, a charge of discrimination was

filed with the Equal Employment Opportunity Commission

by Plaintiffs Linda Johnson and United Paperworkers

International Union, acting through their attorney, against

Defendant Nekoosa Papers, Inc. in which the sole allega-

tions of unlawful discrimination were as follows:

“Female employees have been denied job opportunities,

wages and fringe benefits because of their sex, includ-

ing but not limited to the treatment of maternity

conditions by the employer.”

On July 19, 1974, the EEOC concluded its investigation

and made the following finding in District Director’s letter

of determination:

“Having examined the entire record, I conclude that

there is reasonable cause to believe that Title VII of

the Civil Rights Act of 1964, as amended, has been

violated in the manner alleged.“

4

The District Director's letter of July. 19, 1974, further

stated that “I now invite the parties to join with the

Commission in a collective effort toward joint resolution

of the matter and to eliminate unlawful employment

practices” and that a representative of the Commission

would contact each party in the near future to begin con-

ciliation. When Nekoosa had heard nothing from the EEOC

by August 7, 1974, it had its attorney write the EEOC and

request an immediate conciliation meeting either at New

Orleans or at Ashdown. A telephone call from the EEOC

representative on August 12, 1974, to Nekoosa’s attorney

revealed that the EEOC did not have the files on this case

and could not then discuss the case. Nekoosa’s attorney

confirmed this conversation by letter dated August 12,

1974, in which he stated that it was his understanding that

the EEOC would review the files as soon as it received the

files and get back in touch with Nekoosa’s attorney regard-

ing the request for an early meeting on conciliation.

No further contact was made by the EEOC with

Nekoosa regarding conciliation. On August 19, 1974, the

EEOC issued a right-to-sue letter to the Plaintiffs, and on

September 9, 1974, Plaintiffs filed the subject action

against Nekoosa alleging that it was a “class action to

enjoin and redress sex discrimination in employment

on behalf of Linda Johnson and, pursuant to Rule 23 of the

Federal Rules of Civil Procedure, on behalf of a class of

persons composed of all of defendant’s women employees,

former women employees, and women applicants for em-

ployment, who have been denied, assigned to or refused

transfer or assignment to any job, and who have been

denied equal pay at the Ashdown, Arkansas, operation of

the employer because of their sex.”

5

On December 23, 1974, the EEOC filed a motion for

permission to intervene, and this motion was granted on

February 13, 1975, over the objection of Nekoosa. On Febru-

ary 26, 1975, at the conclusion of a hearing on a number of

motions, the District Court made the following ruling from

the bench:

“. . . I will make this as a temporary order to proceed

as a class action and identify the class as all female

employees as to treatment, including maternity leave

and work progression, and require the plaintiff within

seven days from this date to notify each female

employee of Nekoosa-Edwards that if they are to opt

out or opt in to respond so the Court will have the

benefit of their result by April Ist.

Nekoosa objected to the form of the notice mailed to

employees by the Plaintiffs on March 6, 1975, and on March

11, 1975, the Court, at Nekoosa’s request, entered an order

directing that another notice be mailed to all females by

the Clerk of the Court at Nekoosa’s expense. The Plaintiffs’

“Notice of Pendency of Class Action,” and the Clerk’s

“Notice of Pendency of Class Action” were each mailed to

all thirty-nine (39) of the female employees of Nekoosa.

A total of thirty-one (31) of the thirty-nine (39) female

employees of Nekoosa opted out of the tentative class suit

by mailing to the Clerk a request to this effect. Plaintiff

Linda Johnson and four other female employees of Nekoosa

opted in the tentative class action by mailing a notice to

the Clerk to this effect, and three female employees failed

to respond.

On June 8, 1976, the District Court entered an order,

which, among other things, (1) denied the class action, (2)

permitted each female employee the opportunity to inter-

vene in the action, (3) limited the scope of the action to

the allegations in the charge drawn and filed by Piaintiffs’

attorney, and (4) directed that the EEOC could not expand

the action beyond that which the Plaintiffs were permitted

to pursue. (See Appendix C“) Following this, the Court

permitted the Plaintiffs’ attorney to enter the appearance of

seventeen female employees as named Plaintiffs.

On July 2, 1976, the EEOC moved that the District

Court amend its order to permit appeal pursuant to 28 USC

§1292(b) on the issue of whether the court had properly

limited the scope of the EEOC’s action to that which the

private Plaintiffs could pursue, and Nekoosa requested that

the issues be framed to show that the Court had so limited

the EEOC because of its failure and refusal to attempt

conciliation in violation of the provisions of Title VII and

the EEOC’s own regulations. The issues certified for

appeal by the District Court are set forth in Appendix “D”

and in the Opinion of the Court of Appeals, Appendix “A”.

REASON FOR GRANTING THE WRIT

I. Conflict With Deeision of Other Courts of Appeal.

In EEOC v. Missouri Pacific R. Co., 493 F. 2d 71, 7 FEP

cases 177, (CA 8, 1974), the Eighth Circuit held “that once

the charging party has filed suit pursuant to a ‘right-to-

sue’ notice, the Commission is relegated to its right of

permissive intervention.” In the case here presented, the

Court of Appeals noted that in order to resolve the ques-

tions related to the permissible scope of the EEOC’s suit in

intervention, the Court was faced with the task of re-

conciling its holding in Missouri Pacific with “the EEOC’s

general obligation to conciliate.” While noting that the

Third, Fifth and Sixth Circuits had disagreed with its

7

holding in Missouri Pacific and had allowed the EEOC to

file a suit where the EEOC suit would be broader in scope

than the private action even though a private suit based

upon the same EFOC charge had already been filed,’ the

Eighth Circuit cited a holding by the Tenth Circuit and

dicta by the Ninth Circuit and reaffirmed its holding in

Missouri Pacific.

The decision of the Eighth Circuit in EEOC v. Missouri

Pacific R. Co., supra, is clearly in conflict with the decision

of the Third Circuit in EEOC v. North Hills Passavant Hos-

pital, supra, the decision of the Sixth Circuit in EEOC v.

Kimberly-Clark Corp., supra, and with the decision of the

Fifth Circuit in EEOC v. Huttig Sash and Door Company,

supra. Petitioner contends that the holding of the Eighth

Circuit in Missouri Pacific is an incorrect interpretation of

§706 (f) (1), 42 USC §2000e-5(f) (1), and the legislative

history of Title VII. As stated by the Third Circuit in EEOC

v. North Hills Passavant Hospital, 13 FEP cases 1129, 1135,

the plain words of the statute provide that the EEOC may

bring a civil action against a non-governmental respondent

and do not provide that the EEOC looses that power when a

private party brings a suit based on the same charge. Any

1In EEOC v. North Hills Passavant Hospital, 544 F. 2d 664, 672, 13

FEP cases 1129, 1135 (CA 3, 1976); EEOC v. Kimberly-Clark Corp.,

511 F. 2d 1352, 10 FEP cases 38 (CA 6, 1975), cert. denied, 423 U.S.

994, 11 FEP cases 930 (1975); and in EEOC v. Huttig Sash and Door

Co., 511 F. 2d 453, 10 FEP cases 529 (CA 5, 1975) the Third, Fifth and

Sixth Circuits held that the EEOC could file a suit where the EEOC

suit would be broader in scope than the private action even though

a private suit based upon the same EEOC charge had already been

filed.

2In EEOC v. Continental Oil Company, 54 F. 2d 884, 889-890, 14 FEP

cases 365, 369 (CA 10, 1977) and in EEOC v. Occidental Life, 535 F.

2d 533, 536, 12 FEP cases 1300, 1302 (CA 9, 1976) (dicta) cert. granted

45 LW 3431 (1976) the Courts of Appeal followed the reasoning of

the Eighth Circuit in Missouri Pacific.

8

concern which the Eighth Circuit might have had that the

EEOC might be barred by the provisions of Title VII or

some statute of limitations from bringing a Title VII action

after a private party has proceeded with such an action was

cleared up by the United States Supreme Court in its de-

cision of June 20, 1977, in Occidental Life Insurance Com-

pany v. EEOC., —— U.S. ——, 14 FEP cases 1718. The

Supreme Court there held that the EEOC was not required

to bring an action within 180 days of the filing of the charge

and that no state or federal statute of limitations had any

application.

The conflict in the Circuits on the first issue here pre-

sented is in urgent need of final determination. In the

Eighth and Tenth Circuits, and perhaps in the Ninth

Circuit, the EEOC is relegated to permissive intervention

once a private party has filed a Title VII action pursuant to

a “right-to-sue” letter. This interpretation means:

(1) that the EEOC is barred from further pursuit of

matters included in its determination on a discrimina-

tion charge which the EEOC has investigated unless

the EEOC makes timely application for intervention,

meets the other requirements of Rule 24(b) of the

Federal Rules of Civil Procedure, and convinces the

district court that intervention is appropriate, and

(2) that, as the Eighth Circuit has held in this case,

the EEOC may ignore, with impunity, the mandatory

requirements for conciliation, and proceed by way of

intervention in a private action to litigate (a) issues

broader than those issues permitted by the private

litigants, (b) issues never brought out in the EEOC’s

determination, and (c) issues never made the subject

9

of mandatory conciliation efforts by the EEOC with

the employer.

These problems caused by the Eighth Circuit’s holding in

Missouri Pacific can be avoided by the U. S. Supreme Court

following the holdings of the Third, Fifth and Sixth Circuits

to the effect that the EEOC is not relegated to permissive

intervention after a private party has brought a Title VII

suit pursuant to a “right-to-sue” letter. As stated by the

Third Circuit in EEOC v. North Hills Passavant Hospital,

13 FEP cases 1120, 1135:

“Any burden arising from the fact that Pope’s lawsuit

is also pending against the same defendant can be

resolved in proceedings under Fed. R. Civ. P. 42(a).”

II. Important Questions Of Federal Law Which Have

Not, But Should Be Settled By This Court.

In the case here presented, the Eighth Circuit held that

while the conciliation is mandatory prior to direct suit by

the EEOC, §706(f) (1) of Title VII, 42 USC §2000e-5 (f) (1);

29 CFR §1601.23; Patterson v. American Tobacco Co., 535

F. 2d 257, 12 FEP cases 314 (CA 4, 1976), cert. denied 45

LW 3330, 13 FEP cases 1808 (1976); EEOC v. Hickey-

Mitchell Co., 507 F. 2d 944, 8 FEP cases 1281 (CA 8, 1974),

it is not mandatory that conciliation be attempted prior to

intervention by the EEOC. For this proposition the Court

of Appeals cited §706(f) (1) of Title VII, 42 USC §2000e-5

(f) (1), and three U.S. district court cases in which the

EEOC was permitted to intervene even though the EEOC

had not prior to intervention attempted to conciliate. How-

ever, the Eighth Circuit correctly pointed out that in each

of the district court cases involving this issue, the EEOC

has not been permitted to expand the scope of the action

10

beyond that permitted by the private parties because of the

EEOC’s failure to attempt conciliation prior to intervention.“

The Petitioner contends that if the subject decision of

the Eighth Circuit is allowed to stand, the EEOC may

hereafter with impunity, ignore the mandatory statutory

requirements that it attempt settlement by conciliation

prior to involving an employer in expensive and time con-

suming litigation in the federal courts. The district court

cases in which this matter has been considered recognize

the effect of allowing the EEOC to violate the very law

which it is charged with enforcing.

In Jones v. Holy Cross Hospital, supra, the district

court not only refers to the mandatory provisions of Sec-

tion 706 (b) requiring that the EEOC attempt@® concilia-

tion, but points out that subsection 706(f) (1) which allows

the EEOC to intervene in a private suit is the same sub-

section that provides that the EEOC may not bring an

action itself unless it has (1) investigated the charge, (2)

determined that there is reasonable cause to believe that

the charge is true, and (3) been unable to secure from the

employer an acceptable conciliation agreement. The district

court there held that the EEOC must not be allowed to use

the right of intervention as “a device for circumventing the

prerequisites to the institution of an action by the EEOC

itself which have been included in the same section of the

statute which gives it the right to intervene.”

The only reported cases in which the EEOC has been permitted to

intervene in a private suit without having first followed the manda-

tory attempts at conciliation are: Willis v. Allied Maintenance Corp.,

13 FEP cases 767 (SD NY, 1976); NOW v. Minnesota Mining and

manufacturing, 11 FEP cases 720 (D. Minn. 1975); NOW, St. Paul

Chapter v. 3M Co., 14 FEP cases 1052 II Minn. 977); Jones v. Holy

Cross Hospital, Silver Springs, Inc., 64 FRD 586, 8 FEP cases 1024

(D. Md. 1974). In each of these cases the district court has directed

that the EEOC will not be permitted to expand the

11

In NOW, St. Paul Chapter v. 3M Co., 14 FEP cases

1052, 1055 (D. Minn. 1977) the district court stated that

had the EEOC been unsuccessful in conciliation attempts,

it could have enlarged the scope of the litigation beyond

that permitted by the private parties, but then went on to

hold:

The present case, however, is not an appropriate one

for allowing the EEOC to enlarge the scope of the

action. If the EEOC had investigated the charges of

discrimination against 3M, had determined after in-

vestigation that there was reasonable cause to believe

that the charges were true and had been unable to

secure from 3M an acceptable conciliation agreement,

it would be permitted to intervene and to enlarge the

scope of the action. See EEOC v. Kimberly-Clark Corp.,

supra; EEOC v. Huttig Sash & Door Co., supra; EEOC

v. Missouri Pac. R.R., supra; Jones v. Holy Cross Hos-

pital Silver Springs, Inc., 64 F.R.D. 586, 8 FEP cases

1024 (D. Md. 1974). Because the EEOC failed to at-

tempt conciliation, it will be limited to intervening and

assisting the private plaintiffs. The EEOC wll not be

permitted to use the mechanism of intervention to

circumvent the statutory prerequisites to the EEOC’s

institution of its own action.

Whether the U.S. Supreme Court allows the rule of

the Eighth Circuit in the EEOC v. Missouri Pacific R. Co.,

supra, to stand or not, the Supreme Court should decide the

remaining important questions of federal law here present-

ed. Where the EEOC has failed and refused to attempt

mandatory conciliation prior to a private Title VII action

being filed, it should be an abuse of discretion under Rule

24(b), FRCP, for the district court to permit the EEOC to

intervene, but, if intervention is allowed, the EEOC should

12

*

not be permitted, after a stay of the action for sixty days to

permit the EEOC to attempt conciliation, to expand the

action beyond the scope of the action permitted by the

private litigants.

In EEOC v. Hickey-Mitchell, 507 F. 2d 944, 8 FEP

cases 1281, 1284, the Eighth Circuit upheld the trial court’s

dismissal of the EEOC’s Title VII action against the em-

ployer because of the EEOC’s failure tofellow 29 CFR

§1601.23. The Court there said:

„. . . the Commission offers no acceptable justification

for its breach of the regulation in this case, and we

cannot conclude that the Employer was not prejudiced

by it. The Employer’s letter refusing to conciliate is,

as we have noted, the event which should have

triggered the application of the regulation, not the

excuse for ignoring it. Compliance with the regulation,

a last gesture by the Commission of a conciliatory

attitude, may well give pause to the most (theretofore)

recalcitrant employer, now indubitably faced with

expensive and time-consuming litigation, and thus

lead to a resolution of these disputes in the congressio-

nally preferred forum.”

The ruling of the Eighth Circuit in the case here under

consideration ignores the wisdom of the Court’s decision in

EEOC v. Hickey-Mitchell, suprc. The effect of the Eighth

Circuit’s decision in the subject case is to allow the EEOC

to make some demand upon Nekoosa, either reasonable or

unreasonable, and then to proceed with this “expensive and

time consuming litigation” if Nekoosa will not, within 60

days, accept such demand of the EEOC, whether such de-

mand be reasonable or unreasonable. The proper remedy

for the EEOC’s failure and refusal to abide by the very Act

13

which it is charged with enforcing and its own regulations

is either (1) to affirm the District Court’s holding that the

EEOC may not expand this action beyond that which the

private Plaintiffs may pursue, or (2) to determine that it

was an abuse of discretion for the district court to permit

the EEOC to intervene in this action.

CONCLUSION

For the reasons set forth above, Petitioner respectfully

urges that the Petition for Certiorari be granted.

Respectfully submitted,

E. LeRoy Autrey, Esq.

Counsel for Petitioner

501 East Sixth Street

P.O. Box 960

Texarkana, Arkansas 75501

Of Counsel,

AUTREY, WEISENBERGER, Linco & JOHNSON

501 East Sixth Street

P.O. Box 960

Texarkana, Arkansas 75501

14

APPENDIX “A”

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

No. 76-1686

LINDA JOHNSON AND UNITED PAPERWORKERS

INTERNATIONAL UNION, AFL-CIO ............ Appellants

vs.

NEKOOSA-EDWARDS PAPER COMPANY ............ Appellee

Appeals from the United States District Court for the

Western District of Arkansas

No. 76-1819

LINDA JOHNSON AND UNITED PAPERWORKERS

INTERNATIONAL Unton, AFL-CIO .............. Plaintiffs

and

EQuaL EMPLOYMENT OPPORTUNITY

COMMISSION ............. Plaintiff-Intervenor-Appellant

(Ashdown, Arkansas) Defendant-Appellee

Submitted: February 17, 1977

Filed: June 2, 1977

Before CLARK, Associate Justice, Retired,“ GIBSON, Chief

Judge, and HEANEY, Circuit Judge.

TOM C. CLARK, Associate Justice, Retired, Supreme Court of the

United States, sitting by designation.

15

HEANEY, Circuit Judge.

This action was filed by Linda Johnson and the United

Paperworkers International Union against Nekoosa Papers,

Inc., alleging the existence of sex discrimination in its

employment practices at Nekoosa’s Ashdown, Arkansas,

facilities. The named plaintiffs sought to represent a class

including all past and present female employees and all

female job applicants who were denied employment oppor-

tunities because of their sex. The Equal Employment

Opportunity Commission (EEOC) was allowed to intervene.

The District Court initially certified the class to include

only present employees but later decertified the class

entirely and ruled that “the EEOC may not expand the

scope of this action beyond that which the Plaintiffs are

permitted to pursue.“ The District Court's decision to

decertify the class and to limit the scope of the EEOC’s

intervention is challenged in this consolidated appeal.

Prior to bringing this action, Johnson and the Union had

filed a charge with the EEOC alleging that “[f]emale

employees have been denied job opportunities, wages and

fringe benefits because of their sex, including but not

1Linda Johnson and United Paperworkers International Union,

AFL-CIO, and Equal Employment Opportunity Commission v.

Nekoosa Papers, Inc. (Ashdown, Arkansas), CA No. T-74-57-C (W.D.

Ark., order filed June 8, 1976). Thus, the Equal Employment Op-

portunity Commission (EEOC) would not be able to raise the claims

of those who were denied job opportunities because of their sex and

to challenge the virtual exclusion of females from production jobs.

The above entitled cases were consolidated by this Court for the

purpose of this opinion.

16

limited to the treatment of maternity conditions by the

employer.“ After an investigation, the EEOC found reason-

able cause to believe that Nekoosa discriminated against

women in violation of Title VII with respect to maternity

benefits, job opportunities and wages. The EEOC issued its

determination of probable cause on June 19, 1974, and

indicated that an EEOC representative would be in contact

with each party in the near future to begin conciliation.

In early August, 1974, the attorney for Nekoosa contacted

the EEOC by letter and telephone seeking to expedite the

conciliation process. The EEOC did not respond to Nekoosa’s

overtures. The EEOC issued a right-to-sue letter to Johnson

and the Union at their request on August 19, 1974. This

action was filed on September 9, 1974.

I.

We first consider the threshold question of whether we

have jurisdiction to hear an appeal from the order of the

District Court denying class certification. Under the

circumstances of this case we hold that the order is not

appealable and, therefore, dismiss the appeal in No. 76-1686.

As this Court recently noted, “nearly every court

which has considered the question has found that a

discretionary order refusing to certify a class is not in itself

appealable.” In Re Piper Aircraft Distribution System

Antitrust Litigation, No. 76-1360, slip op. at pp. 7-8 (8th

Cir., filed March 15, 1977). Appeals have been permitted,

however, under 28 U.S.C. §1291 when the denial of class

certification as a practical matter sounds the death knell

of the action, Cecil Livesay and Dorothy Livesay, etc. v.

The charge was filed with the EEOC on November 29, 1973, by

Johnson and the Union acting through their attorney.

17

Punta Gorda Isles, Inc., etc., Nos. 76-1881 and 76-1906,

slip op. at p. 5 (8th Cir., filed March 4, 1977); Eisen v.

Carlisle & Jacquelin, 370 F. 2d 119, 120-121 (2nd Cir. 1966),

cert. denied, 386 U.S. 1035 (1967); or under the collateral

order doctrine when the issue is “too important to be denied

review and too independent of the cause itself to require

that appellate consideration be deferred until the whole

case is adjudicated;” Cohen v. Beneficial Industrial Loan

Corp., 337 U.S. 541, 546 (1949); Eisen v. Carlisle & Jacque-

lin, 417 U.S. 156, 171-172 (1974); and under 28 U.S.C.

§1292 (a) (1) when the denial of class certification narrows

the scope of injunctive relief available. Jones v. Diamond,

519 F. 2d 1090 (5th Cir. 1975).

The death knell doctrine is not applicable in this case

because the District Court has permitted the joinder of

seventeen individual plaintiffs and has allowed the EEOC

to intervene, thus making it likely that the action will

proceed even though certification is not granted. Moreover,

the action is brought under Title VII which provides

attorney fees to the prevailing party. 42 U.S.C. §2000e-5(k).

This significantly undercuts the economic rationale for the

death knell doctrine. See Williams v. Mumford, 511 F. 2d

363, 368 (D.C. Cir.), cert. denied, 423 U.S. 828 (1975);

Hackett v. General Host Corporation, 455 F. 2d 618, 622-623

(3rd Cir.), cert. denied, 407 U.S. 925 (1972).

The collateral order exception is not applicable

because the order decertifying the class fails to satisfy

the tests set forth in Cohen v. Beneficial Industrial Loan

Corp., supra. See also 9 J. Moore, Federal Practice 110.10,

at 133 (2d ed. 1975). The order denying class certification

does not present a separate and collateral issue because

whether or not the class should have been certified involved

a consideration of the merits of the entire action. See In

18

Re Piper Aircraft Distribution System Antitrust Litigation,

supra at slip op. p. 7; Share v. Air Properties G. Inc.,

538 F. 2d 279, 284 (9th Cir.), cert. denied, 45 U.S.L.W. 330

(1976). Nor is a question of general significance presented

here. Instead, the decision of the District Court denying

certification of the class depended upon the narrow facts

of the case. A final reason that review of class certification

is inappropriate under the collateral order exception is

that it can usually be examined on appeal from final

judgment. Williams v. Mumford, supra at 368; Samuel v.

University of Pittsburgh, 506 F. 2d 355, 360 (3rd Cir. 1974).

Even if we were to extend the injunction exception and

allow appeals from orders denying class certification, it

would not be applicable here. A number of Circuits have

permitted appeals under 28 U.S.C. 51292 (a) (1) when the

denial of class certification narrows the scope of injunctive

relief available if the plaintiff later prevails on the merits.

Jones v. Diamond, supra; Price v. Lucky Stores, Inc., 501

F. 2d 1177 (9th Cir. 1974); Yaffee v. Powers, 454 F. 2d

1362 (Ist Cir. 1972); Brunson v. Board of Trustees of

School Dist. No.1, 311 F. 2d 107 (4th Cir. 1962), cert.

denied, 373 U.S. 933 (1963).* The Eighth Circuit has not

19

permit appeals from class certification orders, Donaldson v.

Pillsbury Co., 529 F. 2d 979, 981 (8th Cir. 197§), nor do we

need to reach that issue since only one of the two require-

ments for its application has been satisfied here. The first

requirement is that “the plaintiff’s prayer for an injunction

must constitute the heart of the relief he seeks.” Jones v.

Diamond, supra at 1095. The second is that “the practical

result of the order denying the proposed class must be to

deny the requested broad injunction.” Id. at 1096. It is

the latter requirement that is not satisfied here. Because

we are permitting the EEOC to intervene upon a broad

basis, the class will in effect be represented, see Part II,

infra, and the scope of relief available will be as broad as if

the class had been certified.

Since none of the exceptions discussed above apply,

the order of the District Court refusing to certify the class

is not appealable. Accordingly, the appeal in No. 76-1686

is dismissed for lack of jurisdiction.“

5In dismissing the appeal for lack of jurisdiction, we express no

opinion whether the District Court properly refused to certify the

class. See, e.g., Marceline Donaldson, et al v. The Pillsbury Company,

ete., No. 76-1288 (8th Cir., filed April 14, 1977), holding that the

District Court abused its discretion in denying class status even

though an earlier appeal challenging the denial of class status had

been dismissed for lack of jurisdiction. Donaldson v. Pillsbury Co.,

529 F. 2d 979 (8th Cir. 1976).

In this case, the District Court refused to order discovery with

respect to all applicants for employment with Nekoosa. While we do

not reach this issue, we note that broad discovery should usually be

permitted prior to class certification. See Yaffe v. Powers, 454 F. 2d

1362 (Ist Cir. 1972).

20

II.

We next consider whether the Distriet Court properly

held that the EEOC may not expand the scope of the action

beyond that of the charge filed by the plaintiffs with the

EEOC. The District Court certified the following questions

to this Court pursuant to 28 U.S.C. §1292(b).°

1. Whether the Commission’s suit in intervention

properly enlarges the scope of the private plaintiff's

suit so as to include all forms of discrimination

described in the Commission’s Determination of

Plaintiffs’ underlying charges.

2. Whether the Court properly held that “the EEOC

may not expand the scope of this action beyond

that which the Plaintiffs are permitted to pursue”

in view of the fact that the EEOC had not prior to

the filing of this Motion to Intervene endeavored

“to eliminate any such alleged, unlawful employ-

ment practice by informal methods of conference,

conciliation, and persuasion” as required by §706

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

U.S.C. 2000e-5(b) and that the EEOC had not as

required by its rules, 29 CFR §1601-23 (1974),

notified the Defendant in writing “that such

efforts have been unsuccessful and will not be

resumed except on the Respondent’s written

request within the time specified in such notice.”

3. Whether the Court abused its discretion in permit-

ting the EEOC to intervene in this action in view

of the fact that the EEOC had not, prior to the

®The EEOC was granted permission to appeal by this Court in an

order dated September 23, 1976.

=, ,

— —

21

filing of its Motion for Intervention, endeavored to

eliminate any alleged unlawful employment prac-

tice by informal methods of conference, concilia-

tion and persuasion as required by §706(b) of

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

2000e-5(b) and that the EEOC had not, as required

by its own rules, 29 CFR §1601-23 (1974), notified

the Defendant, in writing “that such efforts have

been unsuccessful and will not be resumed except

on the Respondent’s written request with the time

specified in such notice.”

In order to resolve these questions relating to the permis-

sible scope of the EEOC’s suit in intervention, we are faced

with the task of reconciling our holding in Equal Employ-

ment Op. Com’n v. Missouri Pacific R. Co., 493 F. 2d 71

(8th Cir. 1974), with the EEOC’s general obligation to

conciliate.

In Missouri Pacific, this Circuit held “that, once the

charging party has filed suit pursuant to a ‘right to sue’

notice, the Commission is relegated to its right of

permissive intervention.” Id. at 75. The Court relied upon

the express statutory scheme,’ 42 U.S.C. §2000e-5(f) (1),

The scheme of the statute itself * * * negates the Commission’s

double-barreled approach. Once either the Commission or the

charging party has filed suit, §2000e-5(f)(1) speaks only in

terms of intervention — the absolute right of the charging party

to intervene if the Commission elects to file suit within 180 days;

the permissive right of intervention on the part of the Commis-

sion in the private action. The statute cannot be read to warrant

duplicitous lawsuits when both actions find their genesis in one

unlawful employment practice charge.

Equal Employment Op. Com’n v. Missouri Pacific R. Co., 493 F. 2d

71, 74 (8th Cir. 1974).

22

and the legislative history of the 1972 amendments to Title

VII' in reaching its conclusion that duplicitous suits were

barred by the statute. Accord, E.E.0.C. v. Continental Oil

Co., 548 F. 2d 884, 889-890 (10th Cir. 1977); Equal Employ-

ment Opportunity v. Occidental Life, 535 F. 2d 533, 536

(9th Cir.) (dicta), cert. granted, 45 U.S.L.W. 3431 (1976).“

A problem arises, however, because different issues

may be raised by the private suit and the suit filed by the

EEOC even though the same charge originally filed with

the EEOC serves as the basis for both suits. In this case, in

8H. R. Rep. No. 92-238, 92d Cong., 2d Sess., 1972 U.S. Code Cong. &

Admin. News p. 2148.

Other Circuits have, however, developed different approaches to the

problem of duplicitous suits. The Fifth and Sixth Circuits allow the

EEOC to file suit if the EEOC suit would be broader in scope than

F. 2d 1007 (6th Cir. 1975); Equal Employment Op. Com’n v. Kimber-

ly-Clark Corp., 511 F. 2d 1352 (6th Cir. 1975), cert. denied, U.S.

994 (1976); Equal Employment Op. Com’n v. Huttig Sash & Door

Co., 511 F. 2d 453 (5th Cir. 1975). This approach was rejected by the

Tenth Circuit because it was unable to find any statutory basis for

defining the EEOC’s right to sue in terms of the scope of

E.E.0.C. v. Continental Oil Co., 548 F. 2d 884, 889 (10th Cir.

and

The Third Circuit reads the statute the legislative history

differently and places no limitation on the right of the EEOC to

bring suit after a private action has been filed. Equal Emp. Opp.

Com'n v. North Hills Passavant Hosp., 544 F. 2d 664, ’

1976). Any problem with duplicitous suits is to

Fed. R. Civ. P. 42(a) which provides for the consolidation of actions

involving common: questions of law and fact. Id. See generally

Reiter, The Equal Employment Opportunity Commission and ‘‘Dupli-

citous Suits”: An Examination of EEOC v. Missouri Pacific Railroad

Co., 49 N.Y.U.L. Rev. 1130 (1974).

We adhere to our decision in Equal Employment Op. Com’n v.

Missouri Pacific R. Co., 493 F. 2d 71 (8th Cir. 1974), for the reasons

stated in that opinion.

23

its suit in intervention, the EEOC seeks to raise the claims

of unsuccessful job applicants and to challenge the apparent

exclusion of females from production jobs.“ Thus, the

scope of the EEOC suit is broader than that of the private

suit which the District Court has limited to those issues

raised by the charge filed with the EEOC which only

alleged discrimination against present female employees.“

The Court in Missouri Pacific recognized that the scope of

the EEOC suit might be broader than that of the private

suit when it stated that it was “fully confident that [the

District Court] * * will permit intervention and enlarge-

ment of the scope of the action by the Commission if neces-

sary to the rendering of full and complete justice.” Equal

Employment Op. Com’n v. Missouri Pacific R. Co., supra

at 75. My concurring opinion went one step further and

would have required the District Court to broaden the scope

of the suit to include those issues raised by the EEOC

because the EEOC is charged with the responsibility of

eliminating discriminatory employment practices, and,

thus, must be allowed to bring the broader issues before

the court. Id. at 75 (J. Heaney concurring). Indeed, it would

10The EEOC investigation revealed that only 4.5% of Neoosa’s em-

ployees were female even though the community work force was

22.4% female. Moreover, 78.5% of the female Nekoosa employees

occupied clerical positions.

11We emphasize that we are without jurisdiction to review this

F

i

:

8

F

Fir

8

fies;

feat

Lealkf;

25571

24

be anomalous if we did not allow the EEOC’s suit in inter-

vention to broaden the issues beyond those raised by the

charge filed with the EEOC since the EEOC is not so

restricted if it brings a direct suit. See E.E.0.C. v. General

Elec. Co., 532 F. 2d 359 (4th Cir. 1976); Equal Employment

Op. Com’n v. Huttig Sash & Door Co., 511 F. 2d 453 (5th

Cir. 1975); cf. Equal Employment Op. Com’n v. Western

Pub. Co., Inc., 502 F. 2d 599 (8th Cir. 1974). We cannot,

however, simply order that the EEOC be permitted to

broaden the scope of its suit in intervention because we

must also consider the obligation of the EEOC to attempt

conciliation.

Because of the enormous backlog of cases pending

before the EEOC, a private party will usually be able to

bring an action before the EEOC has attempted conciliation

and completed the administrative process. When this

12A charging party cannot bring a private action unless permission

is received from the EEOC. However, the EEOC is required to

issue a right-to-sue letter if it either dismisses a charge or does not

bring suit within 180 days of the date the charge was filed. The

charging party then has 90 days in which to initiate his own court

action. 42 U.S.C. §2000e-5(f)(1). It is, thus, possible for a charging

party to bring suit within a short period of time after the charge

has been filed.

While the EEOC can bring an action within 30 days after the

charge has been filed, it can only do so if it finds reasonable cause

to believe the charge to be true and if conciliation has failed. Since

it has often taken the EEOC two to three years to attempt concilia-

tion, Equal Employment Op. .

at 1358; U.S. Comm’n on Civil Rights, The Federal Civil Rights

Enforcement Effort — 1974, 529 (1975), the EEOC

unable to bring its own action before a private

filed. The EEOC’s delay in processing cases is reflected by its

backlog of cases. As of June 30, 1975, over 126,000 cases were pend-

ing before the EEOC. As the following table indicates, some of the

pending charges date back to 1968.

(continued on next page)

occurs, as it did here, the EEOC is precluded from bringing

a direct action and is relegated to its right of permissive

intervention. If conciliation was required prior to interven-

tion, the EEOC’s motion to intervene might not be con-

sidered timely under Fed. R. Civ. P. 24 because the process

of conciliation is often time-consuming. While conciliation

is mandatory prior to direct suit by the EEOC, 42 U.S.C.

§$2000e-5 (f) (1); 29 C.F.R. §1601.23; Patterson v. Amercan

Tobacco Company, 535 F. 2d 257 (4th Cir.), cert. denied, 45

U.S.L.W. 3330 (1976); Equal Employment Op. Com’n v.

Hickey-Mitchell Co., 507 F. 2d 944 (8th Cir. 1974); it is not

mandatory under the statutory scheme prior to intervention

by the EEOC.” 42 U.S.C. §2000e-5(f) (1). Thus, the EEOC

12 continued.

Fiscal Year in Which Number of

Charge was Filed Open Charges

1968 2,213

1969 3,260

1970 4,245

1971 5,917

1972 8,114

1973 18,550

1974 30,812

1975 46,919

Unspecified 6,310

26

cannot be precluded from intervention because it failed to

conciliate.

Conciliation is nonetheless an integral part of Title VII,

Equal Imployment Op. Com’n v. Hickey-Mitchell Co.,

supra, and is desirable for a variety of policy reasons in-

cluding giving the defendant notice and an opportunity to

respond to any additional claims revealed by the EEOC

investigation and in order to avoid expensive and time-

consuming court actions.“ Because we believe strongly in

the value of conciliation, we hold that while the EEOC is

not barred from intervention by its failure to attempt to

conciliate, it is under a continuing obligation to attempt

to conciliation even after it has intervened in the action.

To this end, we order the District Court to stay the action

for sixty days and to require the EEOC to make a prompt

offer to conciliate. If the offer is accepted by Nekoosa and

if thereafter EEOC fulfills its obligation to conciliate in

good faith and if no settlement is forthcoming by the end

of the sixty-day period, the District Court is directed to

then enter an order permitting the EEOC to expand its

intervention in accordance with its petition. If Nekoosa

refuses to conciliate, then the District Court’s order permit-

ting the EEOC to expand the scope of its intervention shall

be issued forthwith.

14We are aware that the conciliation process has to date been relatively

unsuccessful. See Peck, The Equal Employment Opportunity Com-

mission: Developments in the Administrative Process 1965-1975, 51

Wash. L. Rev. 831, 852-853 (1976); Report to Congress by the

Comptroller General of the United States, supra at 7-37. Action by

the legislative and executive branches of the fedral government is

apparently necessary to make the process a more effective one.

—— —

27

We believe such a stay is not so long as to unduly

prejudice the individual claimants. We realize that requir-

ing the EEOC to expedite its conciliation process after

intervention might be difficult for them because of their

backlog of cases. We feel, however, it is the best balance

between the right of the EEOC to intervene, the obligation

of the EEOC to attempt conciliation and the right of the

individual claimants to proceed with their action.

Accordingly, we reverse and remand this action to the

District Court for action consistent with this opinion.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS,

EIGHTH CIRCUIT.

28

APPENDIX 3“

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

76-1819

September Term, 1976

NEKOOSA Papers, Inc. (Ashdown, Arkansas) .... Appellee

Appeal from the United States District Court for the

Western District of Arkansas

The Court having considered petition for rehearing en

banc filed by counsel for appellee and, being fully advised

in the premises, it is ordered that the petition for rehearing

en banc be, and it is hereby, denied.

Considering the petition for rehearing en banc as a

petition for rehearing, it is ordered that the petition for

rehearing also be, and it is hereby, denied.

June 24, 1977

—— —ͤ:ß ee AAR atl

APPENDIX c“

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

TEXARKANA DIVISION

CA NO. T-74-57-C

LINDA JOHNSON AND UNITED PAPERWORKERS

INTERNATIONAL Unton, AFL-CIO .............. Plaintiffs

and

EQuaL EMPLOYMENT OPPORTUNITY

, . Intervenor

vs.

Nexoosa Papers, Inc. (Ashdown, Arkansas) Defendant

ORDER

After considering the oral testimony and exhibits

introduced into evidence and the briefs and oral arguments

made by counsel for the parties in this case, the Court makes

the following order:

(1) That the Motion of the EEOC, in which the Pl -

tiffs joined, requesting the Court to reconsider its Order of

March 6, 1975, in which the Court refused to include

applicants for employment in the temporary class is hereby

denied;

30

(2) That a class action may not be maintained because

of the failure to meet the prerequisites to a class action as

set forth in Rule 23(a) of the Federal Rules of Civil

Procedure;

(3) That the female employees of the Defendant who

have opted in this suit and any other female employees of

the Defendant who care to become plaintiffs in this suit

may, at their request within fifteen (15) days of this date,

be joined as parties plaintiff in this action, it being under-

stood that even those female employees who have previous-

ly opted out of this action may be permitted to become

parties plaintiff upon filing a written request to this effect

with the clerk of the Court within fifteen days of this date;

(4) That the scope of this action is limited to the

matters within the scope of the Plaintiffs’ charge that

“female employees have been denied job opportunities,

wages and fringe benefits because of their sex, including

but not limited to the treatment of maternity conditions by

the employer”;

(5) That the EEOC may not expand the scope of this

action beyond that which the Plaintiffs are permitted to

pursue;

(6) That the scope of discovery by the parties in this

action is limited to the matters which are reasonably

calculated to lead to the discovery of admissible evidence

in the trial of an action within the scope of Plaintiffs’

charge that the Defendant has denied femaie employees

“job opportunities, wages and fringe benefits because of

their sex, including but not limited to the treatment of

maternity conditions.

31

(7) That counsel for all the parties are directed to

meet within ten days of this date and attempt to resolve all

pending matters regarding discovery; that rulings on

Defendant’s Motions for Protective Order and EEOC’s

Motion to Compel Answers to Interrogatories are deferred

until after the counsel for the parties have met in an attempt

to resolve all disputes involving discovery; and that any

unresolved disputes involving discovery will be heard by

the Court on the 12th day of July, 1976; and

(8) That except for good cause shown, the parties

shall complete all discovery in this case within seventy-five

days from this date and be prepared at the end of the

seventy-five day period to go to trial on all claims that

have not then been resolved, the parties to give the Court

notice prior to the end of the seventy-five day period of all

unresolved claims.

Dated this 8th day of June, 1976.

/s/ Paul X Williams,

United States District Judge

32

APPENDIX D“

STATEMENT OF ISSUES PRESENTED FOR REVIEW

By Order of the District Court dated August 31, 1976,

the Court certified the following questions to the Court of

Appeals pursuant to 28 USC §1292(b):

(1)

(2)

(3)

Whether the Commission’s suit in intervention

properly enlarges the scope of the private

plaintiffs’ suit so as to include all forms of

discrimination described in the Commission's

Determination of Plaintiffs underlying charges.

Whether the Court properly held that “the EEOC

may not expand the scope of this action beyond

that which the Plaintiffs are permitted to

pursue” in view of the fact that the EEOC had

not prior to the filing of its Motion to Intervene

endeavored “to eliminate any such alleged, un-

lawful employment practice by informal methods

of conference, conciliation, and persuasion” as

required by §706(b) of Title VII of the Civil

Rights Act of 1964, 42 U.S. C. 2000e-5(b) and

that the EEOC had not as required by its rules,

29 CFR §1601.23 (1974), notified the Defendant

in writing “that such efforts have been unsuccess-

ful and will not be resumed except on the

Respondent’s written request within the time

specified in such notice.”

Whether the Court abused its discretion in

permitting the EEOC to intervene in this action

in view of the fact that the EEOC had not, prior

to the filing of its Motion for Intervention,

—— — ee — —

33

endeavored to eliminate any alleged unlawful

employment practice by informal methods of

conference, conciliation and persuasion as re-

quired by §706(b) of Title VII of the Civil Rights

Act of 1964, 42 U.S.C. 2000e-(b) and that the

EEOC had not, as required by its own rules, 29

CFR 5160 1.23 (1974), notified the Defendant, in

writing “that such efforts have been unsuccess-

ful and will not be resumed except on the

Respondent’s written request with the time

specified in such notice.”

34

APPENDIX E“

TITLE Vil OF THE CIVIL RIGHTS ACT OF 1964 (AMENDED

1972), SECTION 706(b), 42 U.S.C. §2000e-5(b)

AND SECTION 706(f)(1), 42 U.S.C. §2000e-5(f)(1)

§706(b): Whenever a charge is filed by or on behalf

of a person claiming to be agrieved, or by a member of the

Commission, alleging that an employer, employment

agency, labor organization, or joint labor-management

committee controlling apprenticeship or other training or

retraining, including on-the-job training programs, has en-

gaged in an unlawful 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, employment agency, labor

organization, or joint labor-management committee (here-

inafter 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

information and be in such form as the Commission

requires. Charges shall not be made public by the Commis-

sion. 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 respon-

dent 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 pur-

suant to the requirements of subsections (c) and (d) of

this section. 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 unlawful employment practice by in-

—

—ää— . —E— ————— — —

35

formal 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 of the persons

concerned. Any person who makes public information in

violation of this subsection shall be fined not more than

$1,000.00 or imprisoned for not more than one year, or both.

The Commission shall make its determination on reason-

able cause as promptly as possible and, so far as practicable,

not later than one hundred and twenty days from the filing

of the charge or, where applicable under subsection (c) or

(d) of this section, from the date upon which the Commis-

sion is authorized to take action with respect to the charge.

RT X *

§706(f)(1): 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 (e) or (d) of

this section, the Commission has been unable to secure from

the respondent a conciliation agreement acceptable to the

Commission, the Commission may bring a civil action

against any respondent not a government, governmental

agency, or political subdivision 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 Commission, the Commission

shall take no further action and shall refer the case to the

Attorney General who may bring a civil action against such

respondent 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 involving a government,

—

36

governmental agency, or political subdivision. If a charge

filed with the Commission pursuant to subsection (b) of

this section is dismissed by the Commission, or if within

one hundred and eighty days from the filing of such charge

or the expiration of any period of reference under sub-

section (c) or (d) of this section, whichever is later, the

Commission has not filed a civil action under this section

or the Attorney 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 Commis-

sion, by any person whom the charge alleges was aggrieved

by the alleged unlawful employment practice. Upon

application by the complainant and in such circumstances

as the court may deem just, the court may appoint an

attorney 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 Commission, or the Attorney

General in a case involving a government, governmental

agency, or political subdivision, to intervene in such civil

action upon certification that the case is of general public

importance. Upon request, the court may, in its discretion,

stay further proceedings for not more than sixty days

pending the termination of State or local proceedings de-

scribed in subsections (c) or (d) of this section or further

efforts of the Commission to obtain voluntary compliance.

a

ee eee

37

APPENDIX F“

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

REGULATIONS 29 CFR §1601.19b(a); §1601.22;

§1601.23; §1601.25(a); §1601.25b

§1601.19b: Determination as to reasonable cause.

(a) If the Commission determines that a charge fails

to state a valid claim for relief under Title VII, or that there

is not reasonable cause to believe that a charge is true, the

Commission shall dismiss the charge. Where, however, it

determines that there is reasonable cause to believe that an

unlawful employment practice has occurred or is occurring,

it shall endeavor to eliminate such practice by informal

methods of conference, conciliation, and persuasion.

R X *

§1601.22: Conciliation; settlements.

In conciliating a case in which a determination of

reasonable cause has been made, the Commission shall

attempt to achieve a just resolution and to obtain assurances

that the respondent will eliminate the unlawful employ-

ment practice action. Disposition of a case pursuant to this

section shall be in writing, and notice thereof shall be sent

to the parties. Proof of compliance with Title VII will be

obtained by the Commission before the case is closed.

$1601.23: Refusal of respondent to cooperate.

Should a respondent fail or refuse to confer with the

Commission or its representative, or fail or refuse to make

a good faith effort to resolve any dispute, the Commission

may terminate its efforts to conciliate the dispute. In such

event, the respondent shall be notified promptly, in writing,

38

that such efforts have been unsuccessful and will not be

resumed except upon the respondent’s written request

within the time specified in such notice.

S 2.

$1601.25: Notice to respondent, person filing a

charge on behalf of the aggrieved person and ag-

grieved person.

(a) In any instance in which the Commission is un-

able to obtain voluntary compliance as provided by Title

VII, as amended it shall so notify the respondent, the person

filing a charge on behalf of the aggrieved person, the

aggrieved person or persons, and any State or local agency

to which the charge has been previously deferred pursuant

to $1601.12 or §1601.10. Notification to the aggrieved person

shall include:

(1) A copy of the charge.

(2) A copy of the Commission’s reasonable cause or

no reasonable cause determination as appropriate.

(3) Advice concerning his or her rights to proceed in

court under Section 706(f) (1) of Title VII.

R X *

§1601.25b: Processing of cases, when notice issues

under 8 1601.25.

(a) The Commission may bring a civil action against

any respondent named in a charge, not a government,

governmental agency, or political subdivision, after thirty

(30) days from the date of the filing of a charge with the

Commission unless a conciliation agreement acceptable to

the Commission has been secured.

——— —— — —

Where the person claiming to be aggrieved is not a

party to such an agreement, the agreement shall not extin-

guish or in any way prejudice such person's right to

proceed in court under Section 707 (f) (1).

(b) The Commission shall not issue a notice pursuant

to 5160 1.25 prior to a determination under 51601. 19d or

where reasonable cause has been found, prior to efforts at

conciliation with respondent, except as provided in para-

graph (c) of this section.

(e) At any time after the expiration of one hundred

and eighty (180) days from the date of the filing of a

charge or upon dismissal of the charge at any stage of the

proceedings an aggrieved person may demand in writing

that a notice issue pursuant to 5160 1.25, and the Commis-

sion shall promptly issue a notice, and provide copies

thereof and copies of the charge to all parties.

(d) Issuance of notice pursuant to paragraph (c) of

this section shall suspend further Commission proceedings

unless the Field Director determines that it is in the public

interest to continue such proceedings, or unless, within

twenty (20) days after receipt of such notice, a party

requests the Field Director, in writing, to continue to

process the case.

40

APPENDIX VG“

FEDERAL RULES OF CIVIL PROCEDURE, RULE 24(b)

(b) Permissive Intervention. Upon timely applica-

tion anyone may be permitted to intervene in an action:

(1) when a statute of the United States confers a condi-

tional right to intervene; or (2) when an applicant’s claim

or defense and the main action have a question of law or

fact in common. When a party to an action relies for ground

of claim or defense upon any statute or executive order

administered by a federal or state governmental officer or

agency or upon any regulation, order, requirement, or

agreement issued or made pursuant to the statute or execu-

tive order, the officer or agency upon timely application

may be permitted to intervene in the action. In exercising

its discretion the court shall consider whether the interven-

tion will unduly delay or prejudice the adjudication of the

rights of the original parties.

—— ——— — ——

tna. —— tn ie —y„—-—

41

APPENDIX H

RULE 42. Consolidated; Separate Trials.

(a) Consolidation. When actions involving a common

question of law or fact are pending before the court, it may

order a joint hearing or trial of any or all the matters in

issue in the actions; it may order all the actions consoli-

dated; and it may make such orders concerning proceedings

therein as may tend to avoid unnecessary costs of delay.