# Petition — Universal Restaurants, Inc. v. Fellows > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_1198%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1983 - **Citation:** 464 U.S. 828 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_1198%3A1. Public record. Not legal advice.