Emmett J. Stebbins v. Nationwide Mutual Insurance Company

suit, the War- so that raised STEBBINS, Appellant, need not reached. Convention Emmett J.

saw appellant’s If these in- cause survives must con- quiries, then the district court MUTUAL NATIONWIDE INSURANCE High is a Contract- whether Jamaica sider COMPANY, et al. ing Party to the Warsaw Convention No. 83-2174. flight whether the was international

thus year statute of the Convention’s two States Appeals, United Court of from applies. It is far clear limitations Columbia Circuit. High Contracting Jamaica became Argued Nov. merely by Party to the Warsaw Convention March Decided agreement with of the devolution virtue when Jamaica Britain which occurred Great granted independence from First, effect Kingdom.

United agree-

international law of these devolution parties, third as the

ments on other

signatories to must be multilateral treaties Second, we think Jamaica’s

determined. treaty obliga- regard to other

behavior negotiated suggests that by Britain

tions does devolution not view the

Jamaica

agreement dispositive as of its multilateral

treaty obligations. taken Jamaica has for-

mal steps to the 26 multi- succeed to ‍​​‌‌‌​​​​​​​‌​​‌‌​​​‌​​​​‌​‌‌‌‌‌​‌‌‌​​‌​‌‌‌​‌​‌​‍23 of deposited treaties United Nа-

lateral at the negotiated

tions which Great Britain on its part when Jamaica was of the Unit-

behalf See State Succes- Kingdom. Kunugi,

ed Treaty and Multilateral Relations in

sion Organi- the Framework International (1970).

zations But has not taken it regard action with the Warsaw

similar Furthermore, the Warsaw

Convention. appear does not current

Convention

Laws Jamaica. thus Convention certified, never as it appears to have been officially adopted by Jamaica

must be its domestic law. Yet Minister has

as Convention. See Guadalajara

certified the Gazette, Proclamations, Rules,

Jamaica

Regulations imply opin- significance as to the inconsist-

ion of these actions, they may

ent but we do believe findings consid-

warrant of fact and careful

eration the district court. for the fore-

The case is thus remanded purposes.

going

Judgment accordingly.

365 against the action EEOC on the that Mr. Stebbins failed to exhaust his ad- ministrative remedies. We reverse the dis- trict court’s dismissal оf the employment discrimination claims and remand those proceedings claims for further consistent opinion. with this I. present case is Mr. Stebbins’ fifth against alleging employ ment discrimination.1 previ Mr. Stebbins’ Stebbins, se, pro Emmett appel- J. for unsuccessful, ous suits have all been and in lant. two cases circuit courts have observed that McCartney, Washington, D.C., Donald J. appears he profession to have made a out diGеnova, appellees. Joseph for E. U.S. suing insurance companies. Stebbins v. Lawrence,

Atty., Craig R. Ann S. DuRoss Co., Nationwide Mutual Insurance 528 Lamberth, Royce Attys., and C. Asst. U.S. 934, (4th F.2d Cir.1975); 935 n. 1 D.C., Washington, appearances entered Co., Nationwide Mutual Insurance 469 appellees. 268, (4th Cir.1972). F.2d 270 Mr. Stebbins has filed against some twelve cases various BORK, Before and EDWARDS Circuit companies insurance since 1966 and is a Judges, OBERDORFER,* and “uniquely sophisticated litigant in Title VII Judge. matters.” 469 F.2d at Although 270. he employment seeks adjuster, as a claims Mr. Opinion PER CURIAM. Stebbins has been found to lacking be “so Concurring opinion Judge Circuit in elementary prudence, candor, financial HARRY T. EDWARDS. stability, meaningful interest in the busi ness world and definite career PER direction CURIAM: prudent that no insurance company could Mr. appeals Emmett J. Stebbins from an reasonably employ offer to him in posi (Smith, J.) order of the ‍​​‌‌‌​​​​​​​‌​​‌‌​​​‌​​​​‌​‌‌‌‌‌​‌‌‌​​‌​‌‌‌​‌​‌​‍district court dis- tion of fiscal trust.” Stebbins v. Insur missing complaint his Company America, ance North Empl. 3 against Employment Opportuni- (CCH) ¶ 8168, 6525, (D.D. Prac.Dec. 6529 ty (“EEOC”) and the Nation- C.1970). (“Nation- wide Company Mutual Insurance wide”). Mr. 30, 1983, Stebbins claims on On March Mr. Stebbins com- unlawfully request the EEOC denied his litigation menced the instant by filing a for disclosure under complaint the Freedom of Infor- the EEOC and Nation- mation Act and that Nationwide discrimi- wide. charges nated him in prac- illegal tices violation of 42 et U.S.C. 2000e illegal blacks and with retaliation seq. (1982) (1982). 42of against Mr. previ- Stebbins because of his We affirm the district court’s dismissal ous suits company. Plaintiff * (1973); Of the United States District Court for the Dis- 1403, S.Ct. L.Ed.2d Stebbins v. sitting Co., designation trict of Columbia, State Farm Mut. Auto. Ins. pursu- 413 F.2d 1100 292(a). ant to 28 U.S.C. § denied, (D.C.Cir.), cert. 895, 396 U.S. (1969); Stebbins v. Nation 194, 24 L.Ed.2d 173 See, e.g., Stebbins v. Nationwide Mut. Ins. (4th Cir.1967), wide Mut. Ins. 382 F.2d 267 denied, (4th Cir.1975), cert. denied, cert. 390 U.S. S.Ct. 836, (1976); S.Ct. 1417, 47 L.Ed.2d 353 Stebbins v. Nationwide Mut. Ins. against Nationwide Mutual Insur- employment with sought claimed to have Company. August ance April Nationwide on May June Mr. Stebbins moved to On IV(d). appeal, plaintiff Complaint at On order, court’s alter or amend the district sought that he had suggests in addition that ven- specifically and his motion noted “throughout employment from plaintiff's al- “proper ue was claims and the Tri- general, in

the United States leged under 42 USC 1981 and D.C. Human (District Region particular in of Co- state 24, 1983, Rights Law.” On Nation- Delaware, lumbia, Maryland and the Com- attorney’s wide moved for its fees because Appen- Brief and Virginia).” monwealth of harassing “the and vexatious nature of Appellant at 3-4. dix for plaintiff’s repeated extreme defending up the EEOC moved for cost ... of each ... On June action[ ] alternative, or, Supreme for summa- to the Court.” On dismissal in the United States 8, 1983, ground that Mr. Steb- ‍​​‌‌‌​​​​​​​‌​​‌‌​​​‌​​​​‌​‌‌‌‌‌​‌‌‌​​‌​‌‌‌​‌​‌​‍ry judgment, September the district court denied required to exhaust his adminis- bins was Mr. Stebbins’ motion to alter or amend its seeking judicial re- previous remedies before trative order. On November Mr. 17, 1983, Nationwide moved view. On June Stebbins filed his notice to including that grounds four to dismiss on court. by action was barred alleged cause of II. and that venue judicata the doctrine of res We affirm the district court’s dis District of Columbia. improper was in the missal of the action the EEOC be venue, Nationwide

To its motion on cause of Mr. failure to exhaust Stebbins’ it “did not have submitted evidence that his administrative remedies. Exhaustion in of Columbia office required of such remedies is under underwriters, adjusters, where claims party Freedom of Information Act before a representatives supervisors were claims Hedley can seek review. v. United conceded, how- employed.” Nationwide States, (5th Cir.1979). ever, agents who sell it does have must re The action be in the District of Cоlumbia as insurance manded, however, as to each of Mr. Steb in- independent contractors. Nationwide bins’ three allegations did not sisted that Mr..Stebbins’ puzzled by claims. are the district We' agents. concern such dismissing all of Mr. Steb court’s action 25,1983, grant- On the district prejudice on the bins’ claims with prejudice. ed both to dismiss with motions Ordinarily, improper. that venue was in full: Judge Smith’s order stated presumed dismissal on venue Upon to dis- consideration of the motions meri adjudication not to be a final Employ- Equal miss defendants 41(b). ts.2 Fed.R.Civ.P. and Na- Opportunity ment puzzled by the We are also district Company, tionwide Insurance Mutual it does not address court’s order because plaintiff’s oppose to those failure separately why as to motions, plaintiff the Court finds that each of the three discrimina- failed exhaust his administrative has tion claims advanced Mr. Stebbins. We bringing suit remedies as recognize may as Employment Opportu- that venue addition, to the Title VII claim for reasons similar to nity Commission. this Court prior plaintiff’s those discussed in our decision proper is not the venue for Accordingly, allegations ex- must be exam- 2. The dismissal with cannot be the new plained solely that the venue ined to determine whether venue is previously resolved in Stebbins v. even the District of Columbia in this case Fаrm, This case involves State 413 F.2d 1100. previous litiga- it was in the allegations discriminatory ac- of more recent tion. in the State Farm case. tions than were at issue solved, Mutual Automo- Stebbins v. State Farm we need not consider the propriety (D.C.Cir. Hayes bile Insurance applies doctrine which 1969). However, provisions that ease concerned employ- of Title VII to here brought a Title VII claim and we have clаims ment discrimination claims under brought 1981 and the possible section 1981. It remains that the Rights law as well. D.C. Human Accord- District of Columbia is ingly, as to the for all of the antidiscrimination claims appropriate Title VII claim but cluding brought the claim under Title VII. brought under section 1981. Alterna- In remanding, obliged we feel to caution tively, provision may the Title VII venue be Mr. expressing Stebbins that we are controlling pursuant lawsuit for the entire opinion as to the of his claim. merits legal principle to the announced remanding solely are afford the district RCA Service F.Supp. 661 opportunity an make an initial 1982). event, all three of the that anti- issues, legal resolution of factual and as is might have to claims right. transferred to the Title VII venue. The claim Nationwide remand- questions These cannot be resolved with- ed proceed- to the district further court for by out clarification the district court of its ings opinion. consistent with this The First, if order of dismissal. the dismissal is judgment in favor of the EEOC is affirmed it must prejudice, to be with be on some in respects. all other than venue. As we It is so ordered. noted, have on of dismissal venue ordinarily represent adjudi- does not a final EDWARDS, HARRY T. Circuit Judge, Second, cation if on the merits. the dis- concurring: missal is based on venue then the district whether appellant, must consider venue is im- Emmett J. Stebbins seeks employment for all three discrimina- reversal of the District Court’s order dis- Hayes, claims, pursuant missing tion complaint whether his wrongly was decided and Employment Opportuni- the (“EEOC”) improper only ty claim under Title for the VII. and Nationwide express question, (“Nation- opinion Company We on this Mutual Insurance wide”).1 complained since the district court has not ruled on it Stebbins that in the unlawfully requests first instance and since thеre are EEOC his denied unresolved factual which disclosure under of ob- the Freedom Informa- (“FOIA”). viate tion Specifi- the need for us to rule on it.3 Act affirm the We cally, court has not Court’s district resolved dismissal of the action sought by whether Mr. EEOC for Stebbins’ failure exhaust his from Stebbins was available Nationwide in administrative remedies. Stebbins also al- leged engaged This in of Columbia. factual that discrimi- question natory employment practices must be settled a determi- violation of nation can be whether the made on U.S.C. Title VII of the and of Rights was for Mr. Stebbins’ Title Civil Act of U.S.C. §§ seq. 2000e et claim.4 Until this has been re- The District Court dis- alleged employment prac- 3. endorse the but therefore do not criticisms of unlawful Judge Hayes expressed by sepa- 2000e-5(f)(3). Edwards in his tice." 42 Indeed, rate concurrence. if the issue were us, properly before would be inclined to we 1. Stebbins v. Ins. Nationwide Mut. general Hayes. approach follow the of 25, 1983) (order granting mo- dismiss) tions to and Stebbins 4. district court must arrive an initial 83-0926, (D.D.C. Sept. 1983) Mut. Ins. No. bearing resolution of all issues factual (order denying modification June whether the District Columbia is "the order). district in which would have worked [Stebbins] the EEOC moved for claims on the basis that venue On June missed those alternative, or, the slim this forum. On in the for summa- was dismissal us, we are unable to under- record before judgment, genu- that no ry why improper, and we there- stand any issue existed as to material fact ine for further consideration of fore remand and that Stebbins was to exhaust Title VII and section both Stebbins’ seeking his administrative remedies before if claims. Even the District Court finds judicial review. On June Nation- improper in this forum for the (1) grounds: to dismiss on four wide moved claim, however, I am concerned alleged that the cause of action was barred respect integrity re- that we (2) the doctrine of res judicata;2 claim. I address this maining section 1981 improper in the District of Co- issue below. Court; (3) lumbia District that the Title VII cause of action was barred the statute Background

I. limitations; (4) complaint against upon filed his failed to state a cause of action which granted.3 EEOC and Nationwide the District Court relief could be complaint allegеs on March 1983. The 25, 1983, the' District On June Court policy prac- that Nationwide follows “a prej- granted both motions to dismiss tice of discrimination udice. The motion of EEOC was Blacks account their race.” to ex- granted because of Stebbins’ failure Specifically, claims that Nation- Stebbins The haust his administrative remedies. employ retaliatory wide refused to him in a gesture granted on previously because he had “sued motion of Nationwide was way 2, Supreme Nationwide all the to the grounds venue.4 On Court United States.” Stebbins also 1983, Stebbins moved to alter or amend managers claims that one of Nationwide’s alia, order, because, inter prop- venue was him, hurled a racial insult at that Nation- claim under er in the District Court for his policy employing wide has a of not Blacks The District declined section 1981. Court adjusters, as claims and that Natiоnwide order, stating: modify its employed qualifica- has whites with lesser Upon plaintiff’s consideration of requested tions than himself. motion Stebbins $120,000 compensatory to alter or damages and amend this Court’s Order en- $120,000 punitive damages against 25, July 1983, Na- tered on the Court finds no tionwide. upon support new evidence which to prior employment 2. Nationwide relied on four 4. The District Court did not address the other prosecuted by Stebbins аsserted Nationwide for dismissal. against Nationwide: Stebbins v. Nationwide simply Its order stated: Co., (4th Cir.1975), Mut. Ins. denied, 528 F.2d 934 cert. Upon consideration of the motions to dismiss 946, 424 U.S. 96 S.Ct. 47 L.Ed.2d Equal Employment Op- defendants ‍​​‌‌‌​​​​​​​‌​​‌‌​​​‌​​​​‌​‌‌‌‌‌​‌‌‌​​‌​‌‌‌​‌​‌​‍(1976); Co., 353 Stebbins v. Nationwide Ins. Mut. portunity Commission and Nationwide Mutu- denied, 469 F.2d 268 cert. 410 Company, plaintiffs al Insurance failure (1973); 35 L.Ed.2d 606 motions, oppose those the Court finds that Co., v. State Farm Mut. Auto. Ins. 413 plaintiff has failed to exhaust his administra- denied, (D.C.Cir.), F.2d 1100 396 U.S. bringing tive remedies as (1969), S.Ct. and Stebbins Equаl Employment Opportunity Co., (4th v. Nationwide Mut. Ins. addition, Commission. In this Court is not Cir.1967), cert. S.Ct. proper plaintiff’s venue for claim 19 L.Ed.2d 880 Company. Nationwide Mutual Insurance 3. Stebbins moved to strike the motions com- Stebbins v. Nationwide Mut. Ins. pletely on the that the EEOC and Na- 1983) (order July granting mo- copies tionwide had failed to serve him with dismiss). tions to their motions. The record shows certificates of service to Stebbins attached to the motions of both the EEOC аnd Nationwide. dismissing authority, modification of the Order that we have found no case____5 parties and neither the nor the District This followed. pointed any, suggests have which Court that, where a Title VII and a section 1981 II. Discussion joined claim are and the Title VII claim is any consequence issue of in this dismissed with basis appeal is whether the District Court cor- venue, venue is also for rectly dismissed Stebbins’ claims remaining section 1981 claim. Natiоnwide on the ven- order, ue. speculates that the District without Court stated elaboration that “this rely Hayes have intended to Court proper plaintiff’s not the for Court is (D.D. RCA Service claim Nationwide Mutual Insurance C.1982), dismissing Stebbins’ section Company.” agree per I with the curiam Apart 1981 claim. from the fact that there opinion cannot affirm that we the dismissal nothing in the trial record to incomplete Title VII case on of Stebbins’ so speculation, I find it difficult to com- problems a record. the venue Since prehend the relevance of in this palpably are not identical to those in ease merely in Hayes matter. con- whether, Stebbins v. State Farm Mutual Automo- jurisdiction if sidered (D.C.Cir. VII, bile Ins. under section 1981but not under Title 1969) (“Stebbins ”), I at least on the inade- “pendent could a court exercise venue” us, quate remanding Hayes’ record befоre we are the Title claim. The over findings pendent Title VII venue issue. declined to exercise venue over the claim, first, reasoning, that indeed, might, find on The District Court that case the Title the facts of VII action developments I post-Stebbins that remand and, second, main action was the earlier resolution do not affect our case could be transferred to the District of Assuming we improper. that venue Mаryland where venue was here, hear the Title VII cannot Title VII claim. The court ruled that that, ever, respect to I do not believe princi- is the where it is clear that Title VII venue, treat- the 1981 claim be section action, pal plaintiff may cause of a not shadow of the Title VII claim. ed as a mere requirements statutory of avoid is my that if the Title VII claim It is view companion by “using a cause of Stebbins, by the droрped by or dismissed § a action under 42 U.S.C. 1981as basis for District Court invoking the doctrine venue and then venue, separately address the is- we must pendent venue.” Id. at 665.7 In the section 1981 claim. sue of venue for regard, holding Hayes the District Court if the could be this Even circuit, which it not address the standards considered the law of this stant case did not, present need it is case is under section 1981 and we clear that for venue First, distinguishable.8 it cannot readily I do note reach that issue here.6 not Hayes suggest so far as to Mut. Ins. 7. The court went Stebbins v. Nationwide that, 1983) (order con- denying "in Sept. modi- text, principal Title VII should be considered a order). fication joined cause of action it is with a whenever of action under 42 U.S.C. 1981.” 546 § cause see, e.g., Shapp, 6. But Sinwell added). F.Supp. (emphasis I find at 665 this Cir.1976) (since (3d based any suggestion highly questionable and without properly court re 42 U.S.C. 1981 the district § legislative support. general provisions of 28 ferred to the 1391(b)); Baking v. Manor Stith Hayes I am not aware that has been followed (W.D.Mo.1976) (venue un Moreover, by any appeals. federal court of gen governed by the der 1981 action is mention, section did let alone District Court not even statute, 1391); I see also eral venue 28 U.S.C. rely upon, Hayes. I would be reluctant indeed 0.144[14- J. ¶ proceed on the basis of a dоctrine that was Moore, Practice, Moore’s Federal briefed, argued litigated at 1571-72. 17] not nor below. If the principal action, assumed that Stebbins’ threatened cause of and since venue “pendent misuse of venue” because there claim, on this the entire action finding Title has been no that his VII claim could be maintained in the District of Co- Second, principal cause of action. was his Turbeville, lumbia District Court. if the District even Court assumed Steb- ever, because found that the case principal bins' Title claim to be the VII substantially involved more than action, justi- cause would not have work, equal pay equal it held that prejudice. dismiss fied a decision to principal Title was the cause of action. in employ- transferred the Since venue was on the Title VII ment discrimination claims there to another aсtion, the case was transferred to the district court which Title VII venue was United States District Court for the East- here, proper; simply trial court dis- Virginia. ern District of In neither Laffey prejudice missed the entire case even nor Turbeville were the plaintiffs’ might on Stebbins’ prejudice. Furthermore, dismissed with section 1981 claim. Stebbins was not even neither case involved the situation I ad- given opportunity drop an his Title VII here, dress wherе the viable action proceeding claim as a condition to with his available to Stebbins would be his section suit under section 1981. 1981 action. Finally, appear because it does not I authority can find no proposi- Stebbins’ Title VII claims can be success tion that an discrimination suit fully jurisdiction, transferred to another arising on a claim outside of Title VII see Stebbins v. Nationwide Mutual Insur should prejudice be dismissed with becausе ance F.2d venue cannot be maintained under Title Hayes, (1976), Laffey and Turbeville certain- VII. my and based on as sumption ly for the sake of this any discussion do not stand for principle. Therefore, on the Title VII appellee’s citation to these cases claim in the District of Columbia District gives no real to a dismissal of Court, only potentially Stebbins’ viable Stebbins’ section prejudice 1981 action with appear claim would then to be the section on the basis that case, If action. this were the and Title VII. claim, section 1981 was his sole it is diffi my principal One of concerns with this cult to understand how this action could be implicit suggestion is Nationwide’s dismissed with because Stebbins that suits under Title VII and section 1981 pursue was unable action under always indistinguisha- must be viewed as Title VII. ble. plain This court has made it has cited Laffey v. also [applies] Seсtion 1981 pri- ... to acts of Airlines, Inc., Northwest F.Supp. vate racial organ- union (D.D.C.1971), and Casey, Turbeville v. employers izations and and should not be (D.D.C.1981), having repealed read as as by pas- been the District Court’s dismissal of Stebbins’ sage of Originally Title case, section 1981 action. Neither Rights enacted as the Civil Act of ever, addresses the issue that has been there is no that Section In Laffey raised in this and Turbe- case. like ville, statutory twin Section is a the trial courts were faced with suits arising congressional constitutional assertion of Equal both Title VII and the Pay power Laffey, the court held that Act.9 In to enforce the Thirteenth Amend- since the Pay Act claim was the ment. rely Equal Pay District Court mand, 206(d) elects to on re- Act of 29 U.S.C. § subject (1975 its decision will be to review on Supp.1984). & point any subsequent appeals of this matter. ‍​​‌‌‌​​​​​​​‌​​‌‌​​​‌​​​​‌​‌‌‌‌‌​‌‌‌​​‌​‌‌‌​‌​‌​‍§ 1981, Spector Freight Systems, v.

Macklin Inс. proce- and ... the two Local No. v. Union 478 F.2d augment dures each other and are not (D.C.Cir.1973) (citations omitted); 993-94 mutually exclusive.” Barry, Torre v. see also Railway Express Agency, Johnson (D.C.Cir.1981). Likewise, the Su- (quoting U.S. 95 S.Ct. at 1719 H.R. preme Court has stated that Title VII is not Rep. 92-238, Cong., 92d 1st Sess. 19 No. remedy employ-: the exclusive for claims of (1971)). sector, private ment discrimination Therefore, I separate intend in this state- and that resort to machinery administrative my ment to underscore concern that prerequisite under Title VII is not a to an District Court on remand conceptual accord Johnson v. action under section 1981. integrity to the section 1981 claim and ad- Railway Express Agency, complex problems dress the presented by 460-61, 1716, 1720-21, 44 L.Ed.2d Hayes should it find Johnson, the examination of for the Title VII claim under Stebbins I. legislative history of Title VII revealed Congressional intent that Title VII reme- exclude, augment, dies would not section

1981 remedies. available to the individual

“[RJemedies

under Title VII are co-extensive with the right pro- to sue under the

indiv[i]dual’s Rights

visions of the Civil Act of

Case Details

Case Name: Emmett J. Stebbins v. Nationwide Mutual Insurance Company

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Mar 26, 1985

Citation: 757 F.2d 364

Docket Number: 83-2174

Court Abbreviation: D.C. Cir.