Petition — Universal Restaurants, Inc. v. Fellows

R 2 a 2 ] 0) 3 Office - Supreme Court, U.S.

FILED

JUN 24 1983

ALEXANDER L. STEVAS,

NO. CLERK

In THE

Supreme Court of the

Gnited States

OCTOBER TERM, 1982

UNIVERSAL RESTAURANTS, INC.,

Petitioner,

V.

LAURA FELLOWS,

Respondent.

Petition For A Writ of Certiorari To The

United States Court of Appeals

For The Fifth Circuit

MICHAEL V. ABCARIAN

JOHNSON, BROMBERG & LEEDS

4400 RepublicBank Dallas Tower

Dallas, Texas 75201

(214) 655-1500

Counsel of Record for Petitioner

June 1983

NO.

IN THE

Supreme Court of the

United States

OCTOBER TERM, 1982

UNIVERSAL RESTAURANTS, INC.,

Petitioner,

V.

LAURA FELLows,

Respondent.

Petition For A Writ of Certiorari To The

United States Court of Appeals

For The Fifth Circuit

QUESTION PRESENTED

Whether, in employment discrimination cases, a comp!

ant may permissibly bypass Title VII's voluntary com-

pliance and conciliation procedures with respect io claims of

across-the-board class-wide discrimination, by first raising

those class allegations in the court complaint, notwithstand-

ing that the complainant’s previously filed EEOC charge

alleged only isolated and personal harm affecting the com-

plainant alone, and the investigation of the charge was

reasonably limited by the EEOC to those purely individual

claims?

LIST OF ALL PARTIES TO THE PROCEEDING BELOW

1. Universa! Restaurants, Inc., Defendant-Appellee.*

2. Laura Fellows, Plaintiff-Appellant.

3. Equal Employment Advisory Council, Amicus Curiae.

4. Equal Employment Opportunity Commission, Amicus Curiae.

*Petitioner Universal Restaurants, Inc. has ownership interests in

Universal Restaurants of San Antonio, Inc., and VEW, Inc.

ii

TABLE OF CONTENTS

Page

es cause sedan duvntsevevevuscceaevess i

List of All Parties To The Proceeding Below ............ i

i bees stab eav scat ens eberwessvnes iii

kay eres ea ere reser cebaueedesesens 1

Circe erecta sy Vidcekesaese os 2

Applicable Statutory Provisions ..............0eeeeeeees 2

a we van cedes eer siceviencorerse 2

a Sr 5

A. The Fifth Circuit’s Holding That Claims Of Class

Discrimination Need Not Be Administratively Pre-

sented To The Employer Before Proceeding With

Them In Court Impermissibly Emasculates The

Congressional Mandate That During The EEOC

Review Phase Of Title VII Charges, An Employer

ls Entitled To An Informed Opportunity To Con-

sider Voluntary Settlement ..................5. 5

B. The Fifth Circuit’s Reasoning That Any Isolated

Act Of Employment Discrimination Reasonably Im-

plies A Pattern And Practice Of Purposeful Class

Discrimination Is Inconsistent With Title VII,

EEOC Enforcement Procedures, And Decisions Of

This Court Regarding Standards For Determining

The Nature And Extent Of Employment Discrimi-

SS a Oe 10

C. The Fifth Circuit's Holding Presents A Recurring

And Imperative Problem For Employers and The

Courts Because It Fosters Trial-By-Ambush, And

Encourages Improper And Unwarranted Prolifera-

tion of Title VII Class Actions As a Substitute For

The Statutorily Required Voluntary Compliance

che aN abate sewerees vee whos 13

ces ku Re sedvesewnncctenneveneeseuse 14

Appendix A (Opinion of Fifth Circuit Court of Appeals) .. A-1

Appendix B (Order and Memorandum Opinion of District

lca decs oeshvn dees sdnenvesicseense B-1

Appendix C (Judgment of Fifth Circuit Court of Appeals) C-1

Appendix D (42 U.S.C. §§ 2000e-2, 2000e-5(f)(1)) ........ D-1

ili

TABLE OF AUTHORITIES

Cases Page

Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974) 6

Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975) . 6

Crawford v. United States Steel Corp., 669 F.2d 663 (5th

Gee EE cineca dcaunws eeu oned cepeeeeieanenbeus 13

EEOC v. Mallinckrodt, Inc., 22 Fair Empl. Prac. Cas.

fee ee | Peer eee 9

Falcon v. General Telephone Co. of the Southwest, 626

F.2d 369, (5th Cir. 1980), vacated and remanded, 450

U.S. 1036 (1981), on remand, 697 F.2d 633 (5th Cir.

1981), rev’d and remanded 457 U.S. 147 (1982) .... 4

General Telephone Co. of the Southwest v. Falcon, 457

U.S. 147, 102 S.Ct. 2364 (1982) ......... 2, ll, 12, 14

Griggs v. Duke Power Co., 401 U.S. 424 (1971); ..... 11

Hubbard v. Rubbermaid, Inc., 436 F. Supp. 1184 (D.

We WEED etka ECA 4a a pede unrsleleeeeeeneacunD 7

International Brotherhood of Teamsters v. United

Shaien, GEE UD. TE GU osaiccscccvnnces 2, 10,

Jiron v. Sperry Rand Corp. (Sperry-Univac), 423 F.

ee ae ED vk kn wn pe ces tucsssieares 7

Land v. Dollar, 330 U.S. 731 (1947) .............0.. 5

Larson v. Domestic & Foreign Commerce Corp., 337

LE We CUED hohe dncdeaeenweensncateusbeeenes? 5

Macon v. Bailar, 451 F. Supp. 140 (E.D. Va. 1978) .. 9

Metcalf v. Omaha Steel Castings Co., 507 F. Supp. 679

(D. Neb. 1981), aff'd mem. 676 F.2d 703

CO Se SUED vcd vowewscteenedecrasavceevasueens 9

Pouncy v. Prudential Ins. Co. of America, 668 F.2d 795

ee ee EE cawnnvconteonedes aces actatn 3, ii

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

Ce TFN koe hs ei we aa ee ences eee eee eens 6

Stubbs v. Bendix Field Engineering Corp., 21 Fair

Empl. Prac. Cas. (BNA) 804 (D. Md. 1977) ....... 9

Texas Department of Community Affairs v. Burdine,

Ge RENE owaxsctavenceceudeachwacrenss 12

iv

TABLE OF AUTHORITIES — Continued

Cases, continued

United States v. General Motors Corp., 323 U.S. 373

ese asa a bees 5

Wheeler v. American Home Products Corp., 582 F.2d

a a sy 5 eee ee eR a aaa Meany 13

Statutes and Rules

i Mi gir sce wsnsreudead see Leneew be nene 5

I nT I > eae e oy 5

ee ey oe ee ee ll, 14

ee ee ee swe cevuneendidwcwsas 2

ey ee or os so eo oleh w cuca bhumeuees 4,5

ee oo las ta ialy we be wee wee a 3

eas ee 2 EE es yo uy ew. bw ole War ela eee 3

Civil Rights Act of 1964, Title VII, 42 U.S.C. § 2000e

de, Si SARE es eset mare me passim

Ne eee ee ee ew sateen 2

BET We SPOIL) gs ib meses berve erence cuniowaess 2,6

tet ey Cee. oc vs Ceo cid cred eek ha wince meee ate 10

ee ee = oy oS so eR oe eo eer as 10

Miscellaneous

D. Baldus & J. Cole, Statistical Proof of Discrimination

Ce ae Pe RD 8h be devicck vas cdcaedesubwes 11

R. Stern & E. Gressman, Supreme Court Practice (5th

ed. 1978) 5

1

IN THE

Supreme Court of the

United States

October Term, 1982

No.

UNIVERSAL RESTAURANTS, INC.,

Petitioner,

Ws

LAURA FELLOWS,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

UNIVERSAL RESTAURANTS, INC. petitions for

a writ of certiorari to review the judgment and opinion

of the United States Court of Appeals for the Fifth

Circuit entered in this proceeding on March 28, 1983.

OPINIONS BELOW

The opinion of the Court of Appeals was reported at

701 F.2d 447 (5th Cir. 1983) (Appendix A), reversing

and remanding the District Court’s June 16, 1981 Order

and Memorandum Opinion (Appendix B), which was

unofficially reported at 26 Fair Empl. Prac. Cas.

(BNA) 145 (N.D. Tex. 1981).

2

JURISDICTIONAL STATEMENT

The judgment of the United States Court of Appeals

was entered on March 28, 1983 (Appendix C). This

petition for a writ of certiorari was filed within 90 days

of that date. The jurisdiction of this Court is invoked

pursuant to 28 U.S.C. § 1254(1).

APPLICABLE STATUTORY PROVISIONS

Civil Rights Act of 1964, Title VII, as amended,

Title 42 United States Code, §§ 2000e-2, 2000e-5(f)(1)

(Appendix D).

STATEMENT OF THE CASE

Laura Fellows (“Fellows” or “Respondent”) began

employment with Universal Restaurants, Inc. (“Uni-

versal” or “Petitioner”) on January 18, 1980 as a wine

steward trainee. She was discharged from that position

several days later on January 23, 1980. Thereafter, she

filed an EEOC charge alleging (1) that she had been

discharged from her wine steward position because of

her sex; (2) that she had been paid less than male wine

stewards because of her sex; and (3) that she had been

rejected from initial hire as a waiter or captain at

restaurants owned by Universal because of her sex.

See Appendix A, 2.

In response to her charge, the EEOC made inquir-

ies for information from Universal. Most of the re-

quests related to the specific allegations of her EEOC

charge, but the Commiss’on included some pro forma

requests regarding general personnel matters unre-

lated to Fellows’ charge. With regard to those unre-

lated requests, Universal declined to provide informa-

tion on the ground that the inquiries were outside the

reasonable scope of the Fellows charge, and because

the EEOC had made no showing of their relevance to

3

it (See Appendix B, 2-3). The EEOC did not thereafter

pursue those data requests.!

The EEOC did not make an administrative deter-

mination on the merits of the charge, and subsequently

issued Fellows a right-to-sue letter. Fellows thereafter

brought suit in the District Court under Title VII of

the Civil Rights Act of 1964, as amended by the Equal

Employment Opportunity Act of 1972, 42 U.S.C.

§ 2000e et seq., and under 28 U.S.C. §§ 1337,

1343(a)(4). Fellows brought this action on her own be-

half with respect to the specific allegations of her

EEOC charge, as well as on behalf of a purported

class of females alleging that Universal maintains

across-the-board sex discriminatory policies and prac-

tices in employment matters including recruiting, hir-

ing, promotion and compensation.”

1 In its opinion, the Fifth Circuit took the position that these limited

requests for information suggested a class investigation which would satisfy

any requirement of notice to Universal regarding class claims. Appendix A,

10-11. This factually unsupported conclusion stands in unexplained deroga-

tion of uncontroverted record evidence consisting of an affidavit from the

Dallas District Director of the EEOC which established that the EEOC

never considered or investigated the Fellows EEOC charge on anything

other than a purely individual basis, and that the Commission's well defined

and substantial systemic case investigation unit and procedures, used for

class investigations, were never utilized in connection with her charge. See

the District Court's detailed findings at Appendix B, 9-10, 13. The Fifth

Circuit also erroneously concluded that Ms. Fellows’ EEOC charge impli-

cated a failure to promote her (See Appendix A, 3), a finding as to which

there is no record evidence whatsoever. Indeed, an allegation of failure to

promote would be absurd since Ms. Fellows was only employed by Univer-

sal for a few days prior to her discharge.

2 Fellows’ “across-the-board” complaint was filed before this Court's

decision in General Telephone Co. of the Southwest v. Falcon, 457 U.S. 147,

102 S. Ct. 2364 (1982). Her complaint embraces a theory of alleged class-wide

disparate treatment, but does not allege adverse impact arising out of appli-

cation of facially neutral decision-making criteria. See International Brother-

hood of Teamsters v. United States, 431 U.S. 324, 335, n. 15 (1977); Pouncy v.

Prudential Ins. Co. of America, 668 F.2d 795, 799-802 (5th Cir. 1982).

4

In response, Universal moved to dismiss the class

allegations for want of jurisdiction or failure to state a

claim on the merits, arguing that Fellows’ across-the-

board class claims did not “reasonably grow out of” her

inherently personal and specific EEOC charge allega-

tions (See Appendix B, 4), and because the EEOC

reasonably limited its investigation to the individual

allegations made by Fellows in her administrative

charge. Under these circumstances, Universal urged

that Title VII's preferred and intended method for

dispute resolution, informal discussion and conciliation

through the EEOC, was never given an opportunity to

function with respect to those class issues.

The District Court agreed with Universal's argu-

ments, and dismissed the class aspects of the case,

reasoning that in the absence of an EEOC charge or

investigation reasonably raising issues of a pattern and

practice of class-wide sex discrimination, there had

never been an opportunity for Title VII’s voluntary

compliance mechanism to meaningfully function with

respect to class issues, and accordingly, the trial court

lacked jurisdiction to proceed upon them.*? See Appen-

dix B, 11-14.

Fellows responded to the District Court’s class dis-

missal order by seeking discretionary interlocutory re-

view in the United States Court of Appeals for the

Fifth Circuit pursuant to the Interlocutory Appeals

Act, 28 U.S.C. § 1292(b). The Fifth Circuit agreed to

3 The District Court dismissed the class allegations on jurisdictional

grounds rather than for failure to state a claim because the Fifth Circuit

had earlier characterized as jurisdictional the appropriate legal standard:

“We find that the district court had jurisdiction ... under the Sanchez

standard.” Falcon v. General Telephone Co. of the Southwest, 626 F.2d 369,

377 (5th Cir. 1980), vacated and remanded on other grounds, 450 U.S. 1036

(1981), on remand, 697 F.2d 633 (5th Cir. 1981), rev'd and remanded on other

grounds, 457 U.S. 147, 102 S. Ct. 2364 (1982).

5

review the order,4 and after hearing, reversed and

remanded the District Court’s dismissal for further

proceedings.® The appeals court based its reversal

upon findings that (1) the jurisdictional basis for dis-

missal was improvident because the class claims were

not wholly insubstantial or frivolous, and (2) that on

the merits, the class claims were sufficently “like or

related to” Fellows’ individual claims so as to permit

them to preceed.® From this adverse judgment and

opinion, Petitioner seeks relief from this Court.

REASONS FOR GRANTING THE WRIT

A. The Fifth Circuit’s Holding That Claims Of Class

Discrimination Need Not Be Administratively

Presented To The Employer Before Proceeding

4 At this juncture, the Equal Employment Advisory Council entered the

case as an Amicus Curiae urging affirmance of the District Court's order,

and the Equal Employment Opportunity Commission entered as an Amicus

Curiae urging reversal.

5 While it is clearly this Court’s normal practice to deny interlocutory

review, in situations where there is a clear-cut and important issue of

federal law fundamental to further conduct of the case that would other-

wise qualify as a basis for certiorari, this Court has found interlocutory

review to be appropriate. United States v. General Motors Corp., 323

U.S. 373, 377 (1945); Land v. Dollar, 330 U.S. 731, 734 n.2 (1947); Larson

v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 685 n.3 (1949);

See also, R. Stern & E. Gressman, Supreme Court Practice, §§ 4.19,

4.20 (5th ed. 1978). Moreover, a primary focus on whether to grant

certiorari must include the broad public importance of the issue pre-

sented. See Rule 17, Rules of the United States Supreme Court. In the

instant case, thc ‘ssue presented undeniably involves a profound question

regarding basic requirements for the enforcement of Title VII.

6 Significantly, the second half of the Fifth Circuit’s opinion dealt with

whether Fellows stated class claims on the merits which could survive a

motion to dismiss under Fed. R. Civ. P. 12(b)(6). Since the District Court

dismissed the class allegations for lack of jurisdiction, and only certified

that basis for review under 28 U.S.C. § 1292(b), the Fifth Circuit questiona-

bly decided an issue which had not been put before it.

6

With Them In Court Impermissibly Emasculates

The Congressional Mandate That During The

EEOC Review Phase Of Title VII Charges, An

Employer Is Entitled To An Informed Oppor-

tunity To Consider Voluntary Settlement.

Congress and the courts have made clear that volun-

tary settlement through informal means of discussion

and conciliation is the intended and preferred method

for resolving Title VII employment discrimination

claims.? Alexander v. Gardner-Denver Co., 415 U.S.

36, 44 (1974); Albemarle Paper Co. v. Moody, 422 U.S.

405, 417-18 (1975). Resort to the courts is intended to

be the exception rather than the rule, to be utilized

only when Title VII’s comprehensive administrative

settlement and enforcement machinery, implemented

through the EEOC, has been exhausted. To that end,

the Fifth Circuit’s seminal decision in Sanchez v. Stan-

dard Brands, Inc., 431 F.2d 455 (5th Cir. 1970) set out

the fundamental proposition that Title VII “clearly

contemplates that no issue will be the subject of a civil

action until the EEOC has first had the opportunity to

obtain voluntary compliance.” 431 F.2d at 467. From

this basic postulation has emerged the standard that

Title VII complainants may only litigate those issues

which are “like or related to” or “within the reasonable

scope of” the issues raised before the EEOC, or which

arise as the result of the Commission's investigation.

For more than a decade, a litany of cases have grap-

pled with defining precisely how to apply this rule to

the varying realities of Title VII cases. It is clear that

a focal point of conflict is balancing due process con-

cepts of notice to the employer as against the remedial

objective of protecting the victims of employment dis-

7 See 42 U.S.C. § 2000e-5(f)(1), set out in pertinent part in Appendix D.

7

crimination. The district court in Hubbard v. Rubber-

maid, Inc., 436 F. Supp. 1184 (D. Md. 1977) cogently

explained the basic problem:

When faced with the question of the proper scope

of a Title VII complaint, a court must balance two

competing statutory policies. The first is that Title

VII is a broad remedial statute designed to pro-

tect those who are least able to protect themselves

... The second policy is that Title VII plaintiffs

should not have an unrestrained ability to litigate

allegations of discrimination which are neither con-

tained in the EEOC charge nor investigated by

the EEOC, thereby frustrating the statutory

scheme of informal persuasion and voluntary com-

pliance ... Unrestrained expansion of the scope of

Title VII suits caused by judicial failure to honor

the second of the policies will result in valid claims

being lost in the ever-increasing number of Title

VII suits. If properly applied, the second policy

eliminates those portions of Title VII complaints

which are inappropriate for litigation because in-

vestigation and conciliation have not been accorded

their proper role. Unless the courts effectively

employ the second policy, which in the last analy-

sis is a restatement of traditional notions of fair-

ness and due process to the employer, the re-

medial aspects of Title VII will be destroyed.

436 F. Supp. at 1188-90.

In a similar balancing of interests, the district court

in Jiron v. Sperry Rand Corp. (Sperry-Univac), 423 F.

Supp. 155 (D. Utah 1975) synthesized the requirements

of Sanchez by focusing upon the due process concept of

notice to the employer regarding the nature and extent

of claimed discrimination, and then determining

whether there was in fact a reasonable opportunity to

exhaust Title VII’s voluntary compliance

mechanism over those issues before resort to the court.

8

In the instant case, the fundamental issue is

whether Title VII requires that claims of class discrim-

ination be accorded, at a minimum, a meaningful op-

portunity for informal discussion and voluntary adjust-

ment through the EEOC before such claims become

the subject of court action. Several courts have con-

fronted this precise issue and barred class claims, find-

ing that EEOC charges alleging isolated discrimina-

tory acts affecting single complainants do not imply

that a class of employees has been systematically dis-

criminated against, and certainly do not put the re-

spective employers on required notice of broad-based

® Petitioner does not argue that actual conciliation must take place, but

rather, that Title VII requires, at a minimum, due notice to the employer,

either through the charge itself or the EEOC investigation thereof, in order

that the employer be given an informed opportunity to consider settlement,

or in the alternative knowingly accept the risk of defending against such

issues in court.

9

class claims.® Nonetheless, the Fifth Circuit’s rule in

the instant case unquestionably and completely insu-

9 These concepts have been applied by several district courts for the

specific purpose of barring class claims where such were not presented

through the EEOC charge, or the resulting administrative investigation.

Thus in Metcalf v. Omaha Steel Castings Co., 507 F. Supp. 679 (D. Neb.

1981) aff'd mem. 676 F.2d 703 (8th Cir. 1981), the district court refused to

permit plaintiff to amend his complaint for the purpose of adding class

allegations of racially disparate treatment where his EEOC charge specifi-

cally alleged only an individual and isolated act of discrimination. In

deciding the issue, the district court interpreted the Fifth Circuit's Sanchez

decision to be fully applicable as a bar to the attempted expansion. See also,

Macon v. Bailar, 451 F. Supp. 140 (E. D. Va. 1978). Likewise in Stubbs v.

Bendix Field Engineering Corp., 21 Fair Empl. Prac. Cas. (BNA) 804

(D. Md. 1977), the district court opined:

In this case, the EEOC investigation was limited to the plaintiffs

specific charges regarding unfair job performance evaluation, a lack of

promotion or wage increases, and failure to be recalled from layoff. The

complaint in this court, however, contained the additional allegations

that defendant (1) failed to recruit black applicants for employment; (2)

established discriminatory educational requirements; (3) maintained

racially segregated work units; (4) utilized a seniority system; ... (5)

utilized discriminatory tests for promotion and acceptance into training

programs; and (6) excluded blacks from administrative, executive, and

supervisory positions. The EEOC was neither charged with investigat-

ing such allegations, nor did it, in the course of the investigation which

it did conduct, find reasonable cause to make such allegations sua

sponte. Asa result, no opportunity ever existed to effect conciliation as

to such matters. Since the statutory scheme of conciliation would be

nullified if a private plaintiff could raise such issues in court the first

time, the defendant’s motion to dismiss [specified] paragraphs . . of the

complaint is granted [Emphasis added]. 21 Fair Empl. Prac. Cas.

(BNA) at 806.

Similarly, in EEOC v. Mallinckrodt, Inc., 22 Fair Empl. Prac. Cas. (BNA)

311 (E. D. Mo. 1980), the EEOC filed a broad-based class action suit

jurisdictionally predicated upon an individual charge filed by an incumbent

black employee claiming discriminatory promotion denial. The charge

contained no class allegations or claim of discrimination affecting others.

The court found the charge jurisdictionally inadequate to support the class

suit, and therefore examined the EEOC'’s investigative file to determine

whether the investigation had included an analysis of anything more than

the isolated claims of the charging party. Since it had not, the district court

characterized Plaintiffs efforts as “dangerously akin to a ‘witch hunt”, and

granted summary judgment for the defendant dismissing the class allega-

tions. 22 Fair Empl. Prac. Cas. (BNA) at 314.

10

lates the requirement of subjecting class claims to Title

VII's comprehensive voluntary compliance mechanism

for complainants who may prefer that their class

claims be presented in the first instance to a court

rather than the EEOC. This bypassing of the Congres-

sional enforcement machinery is not, Petitioner urges,

permissible under Title VII.

B. The Fifth Circuit’s Reasoning That Any Isolated

Act Of Employment Discrimination Reasonably

Implies A Pattern And Practice Of Purposeful

Class Discrimination Is Inconsistent With Title

VII, EEOC Enforcement Procedures, And Deci-

sions Of This Court Regarding Standards For

Determining The Nature And Extent Of Employ-

ment Discrimination.

The distinction between class versus isolated employ-

ment discrimination is fundamental to the fabric of

Title VII and its interpretive precedent. Title VIT it-

self makes this distinction by providing for two kinds

of lawsuits — individual and “pattern and practice”.!°

In either case, complainants cannot bypass the EEOC.

Moreover, EEOC has formal and specific procedures

for identifying cases requiring class investigation, and

employs separate enforcement units for individual ver-

sus systemic discrimination investigations."! Thus, like

the statute, the Commission recognizes this basic dis-

tinction, and exercises expertise in determining the

existence of systemic versus isolated instances of indi-

vidual discrimination. Similarly, in recognition of this

distinction, this Court explained the fundamental stat-

utory dichotomy in International Brotherhood of

Teamsters v. United States, 431 U.S. 324 (1977), noting

10 Compare Title VII §706 with §707, 42 U.S.C. §§ 2000e-5, 2000e-6.

1! See Appendix B, 10, 13.

ll

that Title VII’s “pattern and practice” language implies

repeated and routine discriminatory operating pro-

cedure, not isolated or sporadic incidents.” Finally, in

recently admonishing the Fifth Circuit with regard to

its failure to apply the procedural rigors of Fed. R.

Civ. P. 23 in Title VII class actions, this Court de-

clared that “(ilf one allegation of specific discriminatory

treatment were sufficient to support an across-the-

board attack, every Title VII case would be a potential

company-wide class action. We find nothing in the stat-

ute to indicate that Congress intended to authorize

such wholesale expansion of class-action litigation.”

General Telephone Co. of the Southwest v. Falcon, 457

U.S. 147, ___, 102 S. Ct. 2364, 2371 (1982).

The courts have acknowledged that the two very

different theories under which employment discrimina-

tion class actions may be litigated — disparate treat-

ment and adverse impact — involve totally divergent

requirements of proof, rebuttal and persuasion.!3 None-

2 431 U.S. at 336.

13 Under the adverse impact model, a complainant may attack employ-

ment selection criteria which, although facially neutral in form, fall more

harshly on protected classes of persons, and are not justified by business

necessity. Griggs v. Duke Power Co., 401 U.S. 424 (1971); Pouncy v.

Prudential Ins. Co. of America, 668 F.2d 795 (5th Cir. 1982). The model is

designed only to attack an “overt, clearly identified nondiscretionary

selection criter{ion] that [was] applied at a single point in a selection

process.” D. Baldus & J. Cole, Statistical Proof of Discrimination, §1.23 at

16 (1982 Supp.) approved in, Pouncy, supra at 800. The theory is, however,

improperly advanced in support of wide-ranging attacks upon the cumula-

tive effects of an employer's practices, or for simultaneously challenging

multiple employment practices. Jd. On the other hand, the disparate

treatment model is grounded upon the theory that “The employer simply

treats some people less favorably than others because of their race, color,

religion, sex, or national origin.” /nternational Brotherhood of Teamsters v.

United States, 431 U.S. 324, 335 n.15 (1977). In contrast with the adverse

impact model, a disparate treatment case requires proof of discriminatory

motive. Pouncy, supra at 801.

12

theless, under the Fifth Circuit’s rule, a single allega-

tion of isolated discriminatory treatment may permissi-

bly serve as the trojan horse for launching a class-wide

judicial assault based upon either or both class action

theories, without the employer being given prior ad-

ministrative notice, through the EEOC charge or the

resulting investigation triggered thereby, of such sys-

temic claims.!4 Petitioner submits that this distortion

of the “like or related” and “reasonable scope” stan-

dards is neither warranted nor necessary, and is a

conceptual first cousin to the Fifth Circuit’s historical

unwillingness to accord to the employer the procedural

and substantive rights which are implicit in the bal-

anced statutory scheme of redressing employment dis-

crimination under Title VII.!© Thus, like the Fifth

Circuit’s now invalid “across-the-board” class certifica-

tion presumption recently struck down by this

Court,!© adherence to the proposition that every iso-

lated EEOC charge implies purposeful class-wide dis-

crimination is outdated, inconsistent with decisions of

this Court as well as others, and wholly unfaithful to

the comprehensive and balanced enforcement system

devised by Congress for dealing with prohibited

discrimination.

14 Since this Court's decision in General Telephone Co. of the Southwest v.

Falcon, supra, the continuing viability of disparate treatment class actions

may be in doubt.

15 See, e.g., General Telephone Co. of the Southwest v. Falcon, 457 U.S.

147 (1982) [Title VII offers class litigants no exemption from compliance

with the strict requirements of Fed. R. Civ. P. 23); Texas Dep't. of

Community Affairs v. Burdine, 450 U.S. 248 (1981) [Once complainant

establishes a prima facie case of discriminatory disparate treatment, the

employer has an obligation to rebut that showing by introducing some

evidence of legitimate motivation, but the burden of persuasion, and the

risk of nonpersuasion, never shift from the complainant).

16 General Telephone Co. of the Southwest v. Falcon, supra.

13

C. The Fifth Circuit's Holding Presents A Recurring

And Imperative Problem For Employers And The

Courts Because It Fosters Trial-By-Ambush, And

Encourages Improper And Unwarranted Pro-

liferation of Title VII Class Actions As a Sub-

stitute For The Statutorily Required Voluntary

Compliance Machinery.

If the Fifth Circuit’s rule is left intact, the door is

wide open for complainants to wholly bypass the

EEOC with respect to class discrimination issues. In

effect, a litigant may choose this circumvention for

reasons no better than to obtain the far greater settle-

ment firepower which a class action brings, or to avoid

an EEOC determination of meritless class issues. By

permitting this improper availability of class actions,

the EEOC’ role as the principal enforcer of Title VII

will be emasculated in favor of trial-by-ambush and

unfounded class action witch hunts. This distortion of

Title VII’s comprehensive enforcement scheme is nei-

ther statutorily sanctioned nor consistent with con-

cepts of judicial economy.

Finally, it is significant that the rule applied by the

District Court, requiring that employers be given

meaningful notice of class-based claims before class

litigation, denies no plaintiff his or her day in court.

All those who file charges or share a common harm

may institute original actions, or join into existing Ti-

tle VII actions.!’ Thus, by requiring that appropriate

notice of class issues be presented in order to trigger a

meaningful opportunity for voluntary compliance and

conciliation, this Court will unquestionably be effec-

17 Compare Wheeler v. American Home Products Corp., 582 F.2d 891,

897 (5th Cir. 1977) with Crawford v. United States Steel Corp., 660 F.2d 663,

665-66 (5th Cir. 1981).

14

tuating both the spirit and policy of Title VII, and will

foster judicial economy by reserving the class action

device only for those cases in which Title VII’s admin-

istrative enforcement scheme has been utilized to its

Congressionally mandated fullest.

CONCLUSION

Petitioner is guided by this Court’s recent admoni-

tion to the Fifth Circuit that there is no Congressional

intent that every isolated allegation of employment dis-

crimination be deemed sufficient to support an across-

the-board, company-wide class action against the em-

ployer. General Telephone Co. of the Southwest v.

Falcon, 457 U.S. at , 102 S. Ct. at 2371. Peti-

tioner submits that the Fifth Circuit's failure to re-

quire meaningful administrative notice and opportunity

for voluntary settlement to employers later charged

with class-wide discrimination in court is no less

egregious than the Fed. R. Civ. P. 23 distortion which

prompted this Court’s action in Falcon. For these rea-

sons, Petitioner requests that this Court grant its Pe-

tition for a Writ of Certiorari.

Respectfully submitted,

MICHAEL V. ABCARIAN

JOHNSON, BROMBERG & LEEDS

4400 RepublicBank Dallas Tower

Dallas, Texas 75201

(214) 655-1500

June 1983

A-1

APPENDIX A

Anited States Court of Appeals

For THE FIFTH CIRCUIT

No. 82-1125

LAURA FELLows,

Nietentee

Plaintiff-Appellant, Auseal Prom The United

v. > States District Court

For The Northern District

UNIVERSAL RESTAURANTS, INC.,

of Texas.

Defendant-Appellee.

Entered March 28, 1983

Before WISDOM, RUBIN and TATE, Circuit

Judges.

TATE, Circuit Judge:

Pursuant to 28 U.S.C. § 1292(b) certification, the

plaintiff Ms. Fellows appeals from an interlocutory

order dismissing the class action allegations of her suit

against the defendant, her former employer (“Univer-

sal”). Her complaint is founded upon employment dis-

crimination against her and other females in violation

of Title VII (“Equal Employment Opportunities”) of

the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et

seq. The district court held that it did not have juris-

diction over the class allegations of Ms. Fellows’ com-

plaint because she did not specifically state them in

her initial charge of employment discrimination filed

with the Equal Employment Opportunity Commission

(“the EEOC”), nor had the Commission’s administra-

tive investigation included them within its scope. We

reverse, finding that a dismissal for lack of jurisdiction

is inappropriate because a non-frivolous federal ques-

tion was presented that requires the exercise of juris-

A-2

diction by the district court, and because the initial

charges of discrimination before the EEOC were suffi-

ciently like or related to those asserted by the class

action as to support a Title VII cause of action for the

class.

The Factual Context

Ms. Fellows, after applying for a position with Uni-

versal Restaurants as a waiter or captain, was hired by

the restaurant as a wine steward. Shortly thereafter,

she was discharged from that position. Without coun-

sel she filed a charge with the EEOC as is provided

for under Title VII, 42 U.S.C. § 2000e-5(b), alleging

that she had been discriminated against on the basis of

sex in her hiring, pay, and discharge.' The charge was

filed within the delay provided by the statute, id.,

2000e-5(e), a prerequisite for subsequent administra-

tive or judicial action.

Pursuant to the Act, 42 U.S.C. § 2000e-5(b), the

EEOC instituted an investigation of her charge and

began attempts at conciliation between the parties.

‘Ms. Fellows’ charge alleged:

I believe that I have been discriminated against because of my sex,

female, in that:

1. Phil Varacharo paid the male Wine Steward $40.00 to $50.00 per

shift plus a percentage of 2% over $200.00 and I was paid only $3.10

per hour for performing the same duties.

2. I performed all of my duties in an outstanding manner, and the

discharge by Phil Varacharo was not justified.

3. I was the only female employed in the position of Wine Stewardess,

and I believe I was paid less and discharged because of my sex,

female.

4. Phil Varacharo denied my application for positions as a Waitress,

and Captain in Marios, Les Saisons, and the Old Warsaw Restau-

rant owned by the above named employer because of my sex,

female.

A-3

This investigation included requests for information

from Universal relating to Ms. Fellows’ employment,

and also relating to other applicants and employees of

the restaurant. Universal refused to answer the latter

questions as beyond the scope of the investigation. The

EEOC did not seek compliance from Universal and

confined its investigation solely to the claim of individ-

ual discrimination.

Shortly after the charge was filed, Ms. Fellows re-

tained counsel, and her attorney sent a letter to Uni-

versal stating that if an amicable settlement could not

be reached, a class action lawsuit would be filed. Al-

though attempts at conciliation were made, no settle-

ment was obtained.

After failing to process Fellows’ charge within 180

days, 42 U.S.C. § 2000e-5(f)(1), the EEOC issued a

right-to-sue letter, and she filed this individual and

class action suit alleging that Universal had discrimi-

nated against herself and other women on the basis of

their sex in its recruitment, hiring, promotion, and

compensation policies, all of which disciminatory con-

duct is implicated by Ms. Fellows’ charge to the EEOC

(at least as having affected her personally). See note 1

supra. On motion to dismiss by Universal for lack of

jurisdiction, submitted with affidavits, the district

court dismissed the class aspects of the suit, finding

that the presence of either a class allegation in the

EEOC charge or a class investigation by the EEOC

was a jurisdictional prerequisite to a class action suit

under Title VII, and that the conciliation policies of

Title VII would not be served if the initial charge did

not by its terms afford an opportunity for the em-

ployer to defend against, and the Commission to inves-

A-4

tigate, class discrimination not specifically complained

of by the employee's initial EEOC charge.

Jurisdictional Test: In General

When a party files suit for relief under the United

States Constitution or under federal statute, a federal

district court may not dismiss the suit on jurisdictional

grounds unless the court finds (1) that the federal

claim is immaterial and made solely for the purpose of

obtaining jurisdiction, or (2) that the federal claim is

wholly insubstantial and frivolous. Bell v. Hood, 327

U.S. 678, 682-83, 66 S.Ct. 773, 776, 90 L.Ed. 939

(1946); Miller v. Stanmore, 636 F.2d 986, 989 (5th Cir.

1981); Suthoff v. Yazoo County Industrial Development

Corporation, 637 F.2d 337, 339 (5th Cir. 1981), cert.

denied, sub nom Yazoo County Industrial Develop-

ment Corporation v. Suthoff, 454 U.S. 1157, 102 S.Ct.

1032, 71 L.Ed. 2d 316 (1982). Jurisdiction “is not de-

feated by the possibility that the averments might fail

to state a cause of action on which the petitioners

could actually recover. ... Whether the complaint

states a cause of action on which relief could be

granted is a question of law and just as issues of fact it

must be decided after and not before the court has

assumed jurisdiction over the controversy.” Bell v.

Hood, supra, 327 U.S. at 682, 66 S.Ct. at 776.

Here, Ms. Fellows clearly states a material federal

claim of class employment discimination in violation of

a federal statute, Title VII, the sole basis of her suit.

Considering the allegations of the complaint as true (as

required for review of a dismissal thereof for lack of

jurisdiction, Miller v. Stanmore, supra, 636 F.2d at

988), they would show that the defendant Universal

discriminates against females as a class in its employ-

ment practices, in violation of federal law.

A-5

Thus, under Bell v. Hood, supra, her claim could be

dismissed for lack of jurisdiction only if her federal

class claim were wholly insubstantial and frivolous. In

determining whether a federal claim meets this crite-

rion, a two-prong test is used,

a federal question may be insubstantial either (1)

because it is obviously without merit, or (2) because

it is clearly foreclosed by previous decisions of the

Supreme Court.

Miller v. Stanmore, supra, 636 F.2d at 989. We find

neither of these criteria for dismissal are here met

and, further, that for reasons to be noted the showing

made shows sufficient basis for the district court’s ju-

risdiction of the class action under Title VII as to

require it to maintain its jurisdiction of this aspect of

the suit.

Title VII Action: Cause of Action

The basic two statutory requirements (although

these are not necessarily “jurisdictional”) for a Title

VII suit are (1) the filing of a complaint with the

EEOC and (2) the receipt of the statutory notice of

right to sue. See McKee v. McDonnell Douglas Techni-

cal Services Co., Inc., 700 F.2d 260 (5th Cir. 1983). In

contending that the district court lacked jurisdiction of

the class action aspects of the suit, the defendant em-

ployer contends that the class subject matter of the

lawsuit was not made the subject matter of a timely

charge before the EEOC, because Ms. Fellows’ initial

complaint to the EEOC of sex discrimination related

only to herself individually, not to women as a class.

It may well be that gender or “racial discrimination

is by definition class discrimination”, General Tele-

A-6

phone Company of Southwest v. Falcon, U.S.

; , 102 S.Ct. 2364, 2370-71, 72 L.Ed.2d

740 (1982),2 and that we could end our jurisdictional

inquiry there. See also Zipes v. Trans Worid Airlines,

Inc., 455 U.S. 385, 102 S.Ct. 1127, 71 L.Ed.2d 234

(1982). However, we prefer to rest our ruling upon

decisions of this circuit that indicate to us that a class

cause of action in this suit may be maintained in dis-

trict court, despite the circumstance that on its face

the initial EEOC charge by the employee literally con-

strued may have manifested only an individual

complaint.

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

(5th Cir. 1970), as in the present instance, the em-

ployee’s initial charge and amended charge to the

EEOC only alleged individual acts of discrimination

against her on the basis of her sex and national origin.

Subsequent to failure of EEOC efforts to secure concil-

iation and compliance, the employee filed suit for her-

self individually and for others of the class. The dis-

trict court dismissed for failure to state a claim as to

those allegations that went beyond the terms of the

employee's initial EEOC charge. In reversing the dis-

trict court’s dismissal, Sanchez held that, inter alia,

the scope of the employee’s cause of action could in-

clude not only those charges specifically made before

2 In approving this principle in Falcon with relation to maintaining class

actions, the Court further noted the distinguishable merit issues that relate

to maintenance of a Title VII class action:

We cannot disagree with the proposition underlying the across-the-

board rule — that racial discrimination is by definition class discrimi-

nation. But the allegation that such discrimination has occurred

neither determines whether a class action may be maintained in

accordance with [Fed.R.Civ.P.] Rule 23 nor defines the class that may

be certified. U.S. at , 102 S.Ct. at 2370-71.

A-7

the EEOC but also “‘may encompass any kind of dis-

crimination like or related to allegations contained in

the charge’”, 431 F.2d at 466. The court stated: “The

‘scope’ of the judicial complaint is limited to the ‘scope’

of the EEOC investigation which can reasonably be

expected to grow out of the charge of discrimina-

tion.” Id.

A similar test was applied in Gamble v. Birmingham

Southern Railroad Company, 514 F.2d 678 (5th Cir.

1975). There, the EEOC charge by black switchmen

and the subsequent EEOC investigation had only com-

plained of the denial of promotion opportunities to con-

ductor, but not also of the denial of promotion to

higher supervisory positions, as additionally alleged by

their suit’s complaint. The district court held that,

therefore, the latter claim was outside the “permissible

scope” of the cause of action based upon the initial

EEOC charge and the EEOC investigation. Even

though neither the initial charge nor the actual EEOC

investigation had included the broadened charge of dis-

crimination asserted by the lawsuit’s complaint, we

reversed and held that the broadened claim of discrimi-

nation was sufficiently “like or related to” the initial

charge that an investigation “could reasonably be ex-

pected to grow from it,” 514 F.2d at 688 — although

none had in fact —, so that this broader charge of

A-8

discrimination was properly asserted as part of the

cause of action based upon the initial EEOC com-

plaint. /d.3

As in Sanchez, in Gamble we pointed out that the

underlying policies of the Title VII Equal Employment

Opportunity Act are not served by limiting judicial

relief to technical niceties of the language used by an

often unlettered or unsophisticated employee in filing

his or her initial grievance with the EEOC. In Gam-

ble, quoting with approval from a district court opin-

ion, we stated

[T]he Civil Rights Act is designed to protect those

who are least able to protect themselves. Com-

plainants to the EEOC are seldom [represented]

by lawyers. To compel the charging party to speci-

fically articulate in a charge filed with the Com-

mission the full panoply of discrimination which he

may have suffered may cause the very persons

Title VII was designed to protect to lose that

protection because they are ignorant of or unable

to thoroughly describe the discriminatory prac-

tices to which they are subjected.

514 F.2d at 689.

3 The able district court was concerned that the alleged lack of notice of a

class basis for the discrimination charges deprived the EEOC of an

opportunity to conciliate the class grievances, a preferred mode of resolu-

tion. In Gamble, we addressed the conciliation issue and found that the

conciliation purposes of the act must yield to its more basic purposes to

protect persons against employment discrimination, indicating that protect-

ing a merely theoretical right to conciliation (that might not be accepted) by

dismissing a subsequent suit, is outweighed by more fundamental purposes

of the Act to afford the possibility of administative and judicial relief to

employees who are subject to employment discrimination. Gamble, supra,

514 F.2d at 688-89.

A-9

Sanchez and Gamble, then, are authority for holding

that a cause of action for Title VII employment dis-

crimination may ke based, not only upon the specific

complaints made by the employee’s initial EEOC

charge, but also upon any kind of discrimination like or

related to the charge’s allegations, limited only by the

scope of the EEOC investigation that could reasonably

be expected to grow out of the initial charges of dis-

crimination. Other circuits apply a similar test. Hicks

v. ABT Associates, Inc., 572 F.2d 960, 966 (3d Cir.

1978); McBride v. Delta Airlines, Inc., 551 F.2d 113,

115 (6th Cir.) vacated on other grounds, sub nom.

Delta Airlines, Inc. v. McBride, 4384 U.S. 916, 98

S.Ct. 387, 54 L.Ed.2d 273 (1977).

EEOC Complaint as to Individual Discrimination:

Basis for Class Action?

The defendant Universal would distinguish Sanchez

and Gamble, insofar as applying to the present facts,

because Gamble’s initial EEOC charge included class

complaints (although not all of those additionally al-

lowed to be sued upon) and because, it is suggested (it

is not clear from the opinion), Sanchez by actual

EEOC investigation subsequent to the initial charge

extended its investigation of the individual’s charge to

include class discrimination. As we appreciate Univer-

sal’s argument, it does not contest that under Sanchez

and Gamble the class action could be properly asserted

had the unlawyered employee, Ms. Fellows, checked a

“class” complaint box or had she more broadly phrased

her charge to inclue classwide instead of only individ-

ual gender discrimination. “[A] class action can be

maintained under the Act even though only one mem-

ber of the class has filed a charge of discrimination.”

Sanchez, supra, 431 F.2d at 631.

A-10

We are not persuaded by the argument that the

present EEOC charge by Ms. Fellows could not sup-

port a suosequent cause of action for a class of women

subjected to the same discrimination or to discrimina-

tion like or related to those described by the allega-

tions of that initial charge.

In the first place, for instance, among Ms. Fellows

initial charges is that she “was paid less and dis-

charged because of my sex, female”, and that her ap-

plication for various superior positions in the establish-

ment were denied “because of my sex, female.” See

note 1 supra. Had she stated, instead, that “I was paid

less because women are paid less,” or “my applications

for the superior positions were denied because no

women were considered for them,” her allegations

would have been of class as well as of individual dis-

crimination, so as clearly to justify a class action.

Given the liberal construction accorded EEOC

charges, especially those by unlawyered complainants,

we are inclined to believe that the wordings of her

actual and of our hypothetical charges could equally be

understood to complain of discriminatory employment

treatment of all women applicants and employees, as

well as of Ms. Fellows herself.

In any event, the allegations of Ms. Fellows’ EEOC

charge that she was paid less and denied eligibility for

most other paying positions in the business, solely

because of her female sex, quite clearly meet the

Sanchez-Gamble test, in our opinion. The scope of Ms.

Fellows’ judicial complaint could include class action

allegations, since EEOC investigation of class discrimi-

nation against women could reasonably be expected to

grow out of her allegations in her initial EEOC charge.

In fact, when the EEOC instigated its investigation by

commencing discovery, it directed questions to Univer-

A-ll

sal not only as to Fellows’ individual situation, but also

as to the makeup of Universal’s total work force. That

these questions were asked suggests the reasonable

possibility of a class investigation, and that Universal

refused to answer suggests that Universal was aware.

of and wished to avoid this possibility. Universal’s ob-

duracy in attempting to limit the classwide scope of

the EEOC’s investigation does not militate against the

initial charges having afforded a reasonable expecta-

tion that the EEOC’s investigation could encompass

not only Universal’s alleged discrimination against Ms.

Fellows but also that against all female applicants and

employees.

Likewise, although the EEOC did not attempt to

obtain compliance when Universal refused to answer,

this failure should not be seen as determinative of the

scope of the EEOC investigation that could reasonably

be expected to grow out of the charge.

Although the EEOC may compel responses to class-

directed questions in situations similar to this one,

Georgia Power Company v. Equal Employment Op-

portunity Commission, 412 F.2d 462, 468 (5th Cir.

1969), that Commission (which in this suit has filed an

amicus curiae brief in support of the employee’s con-

tentions), points out that, due to volume and backlog

problems, it has adopted a policy of ordinarily limiting

its investigations only to those that directly affect a

charging party, but without intending to affect that

party’s right to relief by civil suit “for all discrimina-

tory practices which are like or related to those al-

leged in the charge which might have been uncovered

if the Commission had sufficient resources to investi-

gate all charges more extensively.” Taking a Charge,

[Compliance Procedures] EEOC Compl. Man. [BNA] §

2.1(e) (May, 1979).

A-12

Conclusion

For the foregoing reasons, and in accord with the

purposes of Title VII (permitting often-uneducated em-

ployees — “‘those who are least able to protect them-

selves” — to vindicate their rights before first the

EEOC and then the courts, Gamble, supra, 514 F.2d

at 689), we conclude that a dismissal on jurisdictional

grounds was error on the part of the district court. We

therefore REVERSE the order dismissing the class

aspects of Fellows’ suit, and REMAND for further

proceedings.

REVERSED AND REMANDED.

B-1

APPENDIX B

IN THE

Gnited States District Court

FoR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

LAURA FELLOows,

Plaintiff,

A

UNIVERSAL RESTAURANTS, INc., | No. CA3-80-1328-F

Defendant.

ORDER AND MEMORANDUM OPINION

This is a Title VII sex discrimination suit brought

by Laura Fellows against the Defendant arising out of

Ms. Fellows’ brief tenure as an employee at the Old

Warsaw restaurant. Shortly after she was discharged

by the Defendant Ms. Fellows filed discrimination

charges against the Defendant with the Equal Employ-

ment Opportunity Commission (“EEOC”) alleging that

(1) she had been discharged from her position as a

wine stewardess because of her sex,

(2) she was paid less than the male wine stewards

during her employment tenure because of her

sex,

(3) she was denied a position as a waitress and cap-

tain in several restaurants owned by the Defen-

dant for which she applied because of her sex.

Ms. Fellows was hired by the Defendant on January U1,

1980. She was discharged on January 23, 1980. On

February 11, 1980, she filled out an EEOC question-

naire. On March 12, 1980, she executed her formal

B-2

charge of discrimination with the EEOC. Two weeks

later, she informed the EEOC that she had retained

counsel to aid her in the prosecution of her discrimina-

tion charges. On April 23, 1980, the Defendant re-

sponded to EEOC requests for information in connec-

tion with the EEOC’ investigation. In response to two

specific questions, set forth below, the Defendant in-

formed the EEOC that the requested information was

beyond the scope of Ms. Fellows charge, and accord-

ingly declined to furnish the information:

Question 03. Submit a list of all vacancies during

the period January 1, 1980 to January 31, 1980,

for the positions of Waiter/Waitress, Wine Stew-

ard/Stewardess, and Captain at Marios, Les Sai-

sons, and the Warsaw Restaurants; include the

job description, and job qualifications, both req-

uisite and preferred, for each vacancy.

Answer 03. Respondent feels this inquiry is

beyond the scope of Ms. Fellows’ charge. Ms.

Fellows was hired as a rotating wine steward

trainee who claims sex discrimination because of

her discharge.

Question 05. Subrait a list of all individuals em-

ployed in the Warsaw Restaurant, Marios, and

Les Saisons as of January 11, 1980. Include

name, sex, date of hire, initial job classification

and wage rate, and any subsequent job classi-

fications including date and wage changes.

Answer 05. Respondent feels this inquiry is

beyond the scope of Ms. Fellows’ charge. The

Charging Party claims to have been the object

of sex discrimination in the position of rotating

wine steward trainee, and her factual allegations

B-3

pertain to employment practices in that

department.

With respect to other information requested by the

EEOC the Defendant complied with the agency’s re-

quests. On May 1, 1980, the EEOC held a fact finding

conference at which counsel for both the Plaintiff and

Defendant were present, as well as Ms. Fellows. The

next day the EEOC issued a supplemental question-

naire to the Defendant seeking to gain additional infor-

mation with respect to Ms. Fellows’ charge. On June 38,

1980, the Defendant responded to that request, provid-

ing for the most part all of the information requested.

With respect to one of the requests, however, the De-

fendant declined to provide the information requested:

04. Submit a list of all individuals employed in the

Les Saisons, Old Warsaw, Arthurs, and Mar-

ios Restaurants as of May 1, 1980. Include

name, sex.

“In question 04., you have requested a list of

all Respondent’s employees as of May 1, 1980.

We do not understand the significance of that

date, nor the need for all these names. If,

however, the Commission feels there is a com-

pelling and relevant need for this information,

please contact the undersigned for discussion”.

On September 20, 1980, the Commission issued a right

to sue letter to Ms. Fellows, having failed to process

her charge within 180 days. The instant suit was com-

menced October 3, 1980.

In her complaint Plaintiff alleges that the Defendant

discriminated against her on the basis of sex with

respect to (1) being denied a position as waitress or

captain, (2) being assigned the position of wine stew-

ard, and (3) being discharged. In addition, Plaintiff

B-4

brings this action as to herself and on behalf of a class

of females alleging that the Defendant maintains dis-

eriminatory policies and practices in the following

respects:

(1) Defendant fails to recruit, hire, and promote

females on the same basis as males because of

discriminatory hiring and promotion practices;

(2) Defendant has discriminated against females in

salary and compensation;

(3) Defendant has discriminated against females in

the terms and conditions of their employment.

In the prayer for relief Plaintiff seeks a permanent

injunction, a declaratory judgment, equitable relief,

reinstatement, and attorneys’ fees.

In response to Plaintiffs complaint the Defendant

has moved to dismiss or strike certain portions of

Plaintiffs complaint. In particular, Defendant claims

that the Plaintiffs class allegations of across the board

discrimination could not reasonably have been expected

to have grown out of the Plaintiffs charge filed with

the EEOC and that therefore the class allegations

should be dismissed because the Court lacks subject

matter jurisdiction over those claims. In addition, De-

fendant moves to have Plaintiffs allegations of jurisdic-

tion under 28 U.S.C. §§2201, 2202 stricken on grounds

that these statutes do not confer subject matter juris-

diction upon federal courts. Finally, Defendant moves

to strike Plaintiffs prayer for compensatory damages

under Title VII. Plaintiff has responded to the motion,

and on February 9th, 1981 this Court conducted a

hearing at which time counsel for both sides presented

oral argument.

B-5

I.

The Jurisdictional Issues

It is the well settled law of this Circuit that the

filing of a discrimination charge with the EEOC is the

essential first step in the administration of Title VII.

See, e.g. Walker v. Jim Dandy, Slip. Op. 4528 at 4350

(5th Cir. No. 78-2652, Mar. 13, 1981). In a series of

three cases the Fifth Circuit has addressed the issue

of the scope of subject matter jurisdiction vested in a

court hearing a Title VII action :n relation to the

scope of the discrimination charge presented at the

administrative level. See Falcon v. General Telephone

Co., 626 F.2d 369, 376-77 (5th Cir. 1980); Gamble v.

Birmingham Southern Railroad Co., 514 F.2d 678,

687-89 (5th Cir. 1975); Sanchez v. Standard Brands,

Inc., 431 F.2d 455 (5th Cir. 1970). In the instant case,

Defendant argues that Plaintiff presented no class alle-

gations to the EEOC at the administrative level, that

the EEOC only examined the Plaintiffs individual alle-

gations of discrimination in the course of their inves-

tigation, and that, therefore, this Court is without

subject matter jurisdiction to hear the class claims.

Defendant also contends that the scope of this Court’s

jurisdiction over Plaintiffs claims is limited to the

three allegations of discrimination set forth in the

charge filed by Plaintiff with the EEOC. In light of

the fact that the Fifth Circuit has not addressed the

first issue raised by Defendant, a brief excursion

through the jurisprudence of Sanchez, supra, and its

progeny cited above is necessary.

in Sanchez, the Plaintiff filed a charge of discrimina-

tion with the EEOC by filling out an EEOC form

which stated,

B-6

“My complaint was that my boss lady hit me at

my rear and about a month before that I hurt my

thumb and was out of work for seven days and the

company didn’t pay me. I hurt my thumb at

work.”

In a row of boxes representing various categories of

discrimination she checked “SEX”. After the then rele-

vant ninety day period had expired for the bringing of

a discrimination charge based on the incident of which

Plaintiff complained, the Plaintiff executed an

amended charge of discrimination which stated that

“[my] supervisor seemed abrupt and most [sic] venge-

ful against Negroe and Mexican American women

rather than Anglo women.” In the amended charge she

checked both “SEX” and “NATIONAL ORIGIN” as

the types of discrimination involved. The Defendant

moved to have the “NATIONAL ORIGIN” portion of

the Plaintiffs complaint dismissed, and concluding that

the complaint did in fact exceed the scope of the origi-

nal charge, the district court dismissed the complaint.

On appeal, the Fifth Circuit reversed the ruling, and

remanded the case to the district court with instruc-

tions to hear the national origin claim. In so doing the

Sanchez Court enunciated a standard to be utilized

with respect to determining the proper scope of a Title

VII complaint pursuant to the charge filed with the

EEOC:

In King v. Georgia Power Co., N.D. Ga. 1968, 295

F. Supp. 943, Judge Smith held that the allega-

tions in a judicial complaint filed pursuant to Title

VII “may encompass any kind of discrimination

like or related to the allegations contained in the

charge and growing out of such allegation during

the pendency of the case before the Commission.”

295 F. Supp. at 947. In other words, the “scope” of

B-7

EEOC investigation which can reasonably be ex-

pected to grow out of the charge of discrimination.

The Sanchez Court considered six factors in reaching

its decision. First, the remedial and humanitarian un-

derpinnings of Title VII mandate that the courts must

be “extremely reluctant to allow procedural niceties to

bar claims brought under the Act.” Second, the Court

found support in the Commission’s relation back

amendment, 29 C.F.R. § 1601.11(b), which provided an

amended charge relates back to the date of the filing of

the original charge if the amendment merely clarifies

or amplifies the original charge or cures the technical

defects or omissions. Third, the Sanchez Court con-

cluded that the crucial element of a charge of discrimi-

nation is the factual statement contained therein, and

not the legal conclusions that the charging party may

draw from the facts as alleged. Fourth, the court con-

cluded that Title VII, and its procedural framework

were not designed “for the sophisticated or cogno-

scenti” and that accordingly the Act should be inter-

preted to accomplish its remedial purpose. Fifth, the

Court concluded that the Charging Party’s failure to

attach the correct legal conclusion to the facts she

alleged in her charge was a mere “technical defect.”

Finally, the SanchezCourt noted that if a more exact-

ing rule were employed, an employer's incentive toward

voluntary compliance would be lessened. Accordingly,

the court held that nothing in the complaint was

beyond the scope of the charge filed with the EEOC.

Five years later in Gamble v. Birmingham Southern

Railroad Co., 514 F.2d 678 (5th Cir. 1975), the court

once again addressed the issue of the proper scope of a

complaint in light of the charge filed with the EEOC.

In Gamble, the Plaintiffs charge with the EEOC al-

leged that the Defendant was discriminating against

B-8

blacks by its failure to promote switchmen to the posi-

tion of conductor. At trial the Plaintiffs also sought to

adduce evidence that the Defendants discriminated

against the Plaintiffs with respect to promotions from

the conductor position to that of supervisor. The evi-

dence showed that virtually all supervisors were

chosen from the roster of conductors. The trial court

found that the allegations concerning the supervisor

position were outside the scope of the charge filed with

the EEOC and accordingly, limited the scope of the

trial to the conductor question. On appeal, the Fifth

Circuit reversed this determination, finding that the

supervisor complaint was like or related to conductor

complaint and could reasonably be expected to grow

out of the original charge filed with the EEOC.

In Gamble the court acknowledged that the facts

before it were somewhat different than those pre-

sented in Sanchez, for the reason that it was un-

disputed that the EEOC had not investigated any

charges relating to the supervisor level. Thus, it was

said that the complaint exceeded the scope of not only

the EEOC charge, but also the investigation. In addi-

tion, the Defendant argued that it had a right to con-

ciliation with respect to the supervisor question. The

Fifth Circuit rejected these contentions, however, and

held that the district court should have considered the

supervisor issue:

“... we hold that the district court should have

considered the switchmen’s claim as to supervisory

promotions. The question was ‘like or related to’

the original charge before the EEOC. The dis-

crimination alleged is of the same type or charac-

ter as that originally charged, and the same plain-

tiffs are involved. If blacks cannot be promoted to

conductor, then a fortiori they cannot be promoted

to supervisor, and in fact have not been.”

B-9

514 F.2d at 689.

The final chapter in this trilogy of cases is Falcon v.

General Telephone Company, 626 F.2d 377 (5th Cir.

1980). In Falcon, the EEOC conducted an investigation

of hiring as well as the promotion practices of the

Defendant despite the fact that the charge filed with

the EEOC referred only to the Defendant’s promotion

practices. The Falcon Court held that the hiring prac-

tices were within the proper scope of a judicial com-

plaint, principally on the ground that “the civil action

is much more intimately related to the EEOC inves-

tigation than the words of the charge that originally

triggered investigation.” 626 F.2d at 376 (quoting

Sanchez, supra at 466). In addition, the court noted

that the EEOC could reasonably expand the scope of

their investigation beyond the scope of the charge after

initial inquiries, and that to limit the EEOC’s discre-

tion in this area would not be in harmony with the

remedial purposes of the Act. Finally, the Court noted

the strong connection between hiring and promotion

claims.

In the instant case the Defendant presents the fol-

lowing evidence in support of its motion to dismiss the

class allegations as outside the proper scope of a judi-

cial complaint:

(1) the formal charge filed with the EEOC on behalf

of the Plaintiff which enumerates only the indi-

vidual claims she asserts in this action;

(2) an affidavit of counsel for the Defendant stating

that he represented the Defendant in the admin-

istrative process and that at no time did the

EEOC advise him that it intended to conduct, or

was conducting an investigation of any allega-

tions of class discrimination in connection with

B-10

the Plaintiffs charge of discrimination; further, at

no time did the EEOC request conciliation or

settlement of the Plaintiffs on any basis other

than as to the individual allegations;

(3) an affidavit of the Director of the Dallas District

Office of the EEOC stating during the admin-

istrative investigation into Ms. Fellows’ charge

the EEOC did not identify the case as one which

required class investigation, and neither did it

conduct a class investigation of the Defendant;

further the case was never assigned to the

EEOC’ class investigation unit and the inves-

tigation was confined solely to Ms. Fellows’ indi-

vidual allegations of unlawful discrimination;

(4) a certified copy of the administrative record as

developed by the EEOC which makes no refer-

ence to any class allegations or class investiga-

tion on the part of the EEOC.

Thus, it is clear that the issue before the Court is

cast in terms of an EEOC charge devoid of any class

allegations, and of which the EEOC made no class

investigation.

The issue then is whether this showing is sufficient

to jurisdictionally bar a class claim stemming from the

Plaintiffs charge filed with the EEOC.

In support of its motion Defendant cites Macon v.

Bailer, 451 F.Supp. 140 (E.D. Va. 1978) and Stubbs v.

Bendix Field Engineering Corp., 21 FEP Cases 804

(D. Md. 1977). I am of the opinion that the cases are

not in point. In Stubbs, the court dismissed certain

(but not all) class allegations on grounds that the al-

leged forms of discrimination in the judicial complaint

were clearly unrelated to the forms of discrimination

B-1l

alleged by the Plaintiff in the charge with the EEOC.

Nothing in the opinion supports the proposition ad-

vanced by Defendant that where there is no charge of

class discrimination with the EEOC, and no class in-

vestigation, the judicial complaint is limited to the

harms suffered by the individual Plaintiff. Likewise,

the court in Macon found that “[t]he discrimination

suffered by the class which Plaintiff seeks to represent

is far different from that set forth in. the administra-

tive charge.” 451 F.Supp. at 141.

Defendant also cites EEOC v. Mallinckrodt, 22 FEP

Cases 311 (E.D. Mo. 1980). The rationale of the deci-

sion in Mallinckrodt is dispositive of the instant mo-

tion. In that case, after an investigation of the original

charge filed with the EEOC, the EEOC “was unable

to identify any alleged unlawful employment practice

except that which involved the charging party.” Jd. at

314. To allow the EEOC to proceed with a class suit

would “be dangerously akin to a ‘witch hunt” and the

court granted the Defendant’s motion for summary

judgment as to the class allegations. Of importance to

the case at bar is the finding of the court that the

EEOC limited its investigation to claims of the charg-

ing party. This is, of course, precisely the same situa-

tion before this Court. The EEOC conducted its inves-

tigation and there is simply nothing in the record

indicating that the investigation uncovered any unlaw-

ful employment practice other than that which the

charging party alleged. The charging party made no

such allegations with the EEOC. To permit class alle-

gations to remain in this case would be to sanction the

“witch hunt” condemned in Mallinckrodt. There must

be some indication of class related unlawful employ-

ment practices in the administrative record prior to

the institution of a class suit in federal court. Other-

B-12

wise, employers will be called on to defend class suits

for which there is simply no factual basis prior to the

filing of the suit. Further, there is no opportunity for

conciliation of such allegations prior to the filing of the

suit. To sanction such a practice would distort the

purpose of the statutory framework of Title VII. A

charging party with absolutely no knowledge of any

facts relating to other instances of discrimination files

its charge with the EEOC, the EEOC conducts its

investigation into the charge and unveils absolutely no

instances of discrimination other than those alleged by

the charging party, and yet, the employer is called

upon to defend a Title VII class suit.

It goes without saying that class suits are burden-

some to both the Courts and the employers in sheer

terms of the amount of effort expended by each. Prior

to any determination as to liability the Court must

conduct a class certification hearing, and make findings

as to the proper scope of the class. Before this process

is invoked I am of the opinion that a Plaintiff must

make a showing of factual grounds supporting class

allegations.

In the case at bar Plaintiff focuses upon the Defen-

dant’s unresponsive attitude towards EEOC requests

for information relative to class allegations. I note,

however, that the Defendant at the administrative level

merely asserted that this information was beyond the

scope of the charge, but that if necessary the informa-

tion would be provided. The EEOC never pursued that

information, never having felt the need to conduct a

class investigation. Thus, I fail to see the significance

of this contention.

In sum I have concluded that the class allegations

must be stricken from Plaintiffs complaint on jurisdic-

tional grounds. In opposition to Defendant’s motion,

B-13

Plaintiff has cited the Court to section 2.1(e) of the

EEOC Compliance Manual which states as follows:

(1) The Commission will ordinarily limit its inves-

tigation to the allegation(s) of the charging

party;

(2) The decision to limit the scope of investigations

is based on the necessity of allocating limited

Commission resources;

(3) The fact that a narrow investigation was con-

ducted by the Commission does not reflect the

scope of the Commission’s investigation which

might reasonably have grown out of a charge and

therefore the decision to limit investigation is not

intended to, and should not affect the charging

party’s right to seek relief in a private suit for all

the discriminatory practices which might have

been uncovered if the Commission had sufficient

resources to investigate all charges more exten-

sively; ...

Aside from the fact that the EEOC’s pronouncements

above are clearly contrary to the law of this Circuit,

see Falcon at 376 (the civil action is much more inti-

mately related to the investigation than the words of

the charge), it is apparent that this passage is not

applicable to the class issue presented in this case.

Further, the affidavit of Lorenzo Ramirez, which is

uncontroverted, indicates that the EEOC does have a

procedure for identifying those charges which require

class investigations, that there is a class investigatory

unit, and that the EEOC never identified Ms. Fellows

charge as one requiring class investigation. Hence, it

is clear that during the administrative level the pos-

sibility of classwide unlawful employment practices was

simply never considered. Under these circumstances, I

believe that the class claims are jurisdictionally barred.

B-14

Il.

Compensatory Damages Under Title VII.

Defendant has also moved to have Plaintiffs prayer

for compensatory damages under Title VII stricken.

Plaintiff has not responded to this particular conten-

tion, but in any event it is clear that the relief autho-

rized by the statute in question is purely equitable. 42

U.S.C. §2000e-5(g). See Johnson v. Georgia Highway

Express, Inc., 417 F.2d 1122 (5th Cir. 1969). There-

fore, Defendant’s motion to strike Plaintiffs prayer for

compensatory damages is well taken.

Il.

Jurisdiction Under 28 U.S.C. §§2201, 2202

It is well established that the declaratory judgment

provisions of the judicial code, 28 U.S.C. §§2201, 2202

are not independent sources of federal court subject

matter jurisdiction, and therefore Defendant’s motion

to strike Plaintiffs jurisdictional allegations pursuant

to these statutes is granted.

Conclusions

In sum I have concluded that Plaintiffs class allega-

tions should be stricken, that Plaintiffs prayer for com-

pensatory damages should be stricken, and that the

assertion of the declaratory judgment provisions of the

judicial code as independent sources of federal court

subject matter jurisdiction is improper.

So ORDERED this 16th day of June, 1981.

/s/ RoBERT W. PoRTER

United States District Judge

C-1

APPENDIX C

United States Court of Appeals

FoR THE FIFTH CIRCUIT

No. 82-1125

LAURA FELLows,

Plaintiff-Appellant, Appeal From The United

| States District Court

For The Northern District

UNIVERSAL RESTAURANTS, INc., | of Texas.

Defendant-Appellee. | D.C. Docket No

CA3-80-1328F

Vv.

Entered March 28, 1983

Before WISDOM, RUBIN and TATE, Circuit

Judges.

JUDGMENT

This cause came on to be heard on the record on

appeal and was argued by counsel;

ON CONSIDERATION WHEREOF, it is now here

ordered and adjudged by this Court that the order of

the District Court appealed from in this cause be, and

the same is hereby, reversed and that this cause be

and the same is hereby remanded to the said District

Court for further proceedings in accordance with the

opinion of this Court;

IT IS FURTHER ORDERED that defendant-

appellee pay to plaintiff-appellant the costs on appeal

to be taxed by the Clerk of this Court.

MARCH 28, 1983

ISSUED AS MANDATE: April 19, 1983

D-1

APPENDIX D

United States Code, Title 42

§ 2000e-2

(a) It shall be an unlawful employment practice for

an employer —

(1) to fail or refuse to hire or to discharge any

individual, or otherwise to discriminate against any

individual with respect to his compensation, terms,

conditions, or privileges of employment, because of

such individual’s race, color, religion, sex, or national

origin; or

(2) to limit, segregate, or classify his employees

or applicants for employment in any way which

would deprive or tend to deprive any individual of

employment opportunities or otherwise adversely af-

fect his status as an employee, because of such indi-

vidual’s race, color, religion, sex, or national origin.

* *« *

§ 2000e-5

(f)(1) If ... 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 ...

named in the charge. ... If ... the Commission has

not entered into a conciliation agreement to which

the person aggrieved is a party, the Commission ...

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. ...

as