ORDER ON DEFENDANTS’ MOTIONS TO DISMISS AND STRIKE
This is а class action pursuant to 28 U.S.C. § 1343 wherein plaintiffs, employees of Georgia Power and members of Local 84, seek injunctive relief and damages under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et. seq. The factual basis for plaintiffs claim of discrimination is allegedly as follows: (1) Plaintiffs are classified by Georgia Power out of the line of progression in all departments, restricting them to labor posts so as to limit their promotional opportunities. (2) Georgia Power administers tests and utilizes other promotion criteria which are not job-related and which are biased against Negroes. (3) Georgia Power maintains segregated comfort facilities. (4) Defendant, Local 84, contracts with Georgia Power for the maintеnance of a promotion system that tends to limit the promotional opportunities of Negro laborers and further, Local 84 fails to fairly represent Negro employees. The named plaintiffs filed complaints with the EEOC on April 18, 1966, and June 6, 1966. Service of the charge upon defendants was made on June 20, 1966. On March 3, 1967, the EEOC found reasonable cause tо believe that violations of the Act by defendants had occurred. On March 13, 1968, a suit letter was sent to each of the named plaintiffs informing them of their rights to file civil suits. The complaint in the instant case was filed on April 12, 1968.
Defendants have both filed motions to dismiss and/or strike on a number of different grounds. Their separate positions can be summarized as follows.
Geоrgia Power contends that this action should be dismissed because:
(1) the complaint was not filed within the time required by law, i. e., 90 days after the charge is filed with EEOC, and there is no allegation that the complaint was filed with EEOC within 90 days of the alleged unfair employment practices; (2) there is no allegation that a sworn charge was filed with EEOC; (3) the unlawful employment practices alleged in the complaint are not shown to be embraced within the scope of the prior charge before EEOC, i. e., defendant need not defend on matters outside the charges brought before EEOC; (4) this action may not be maintained as a class action. Finally, Georgia Power moves to strike Exhibit A, which is a copy of the decision of EEOC that reasonable cause existed to believe that Georgia Power had violated Title VII of the Civil Rights Act of 1964.
Defendant Local 84 makes its motion on the above grounds as well as the following:
(1) the complaint fails to set forth a claim against this defendant for the sole basis for such relief would arise out of an alleged contract negotiated by the Union and no copy of such contract is attached to the complaint; (2) the maintenance of a class action under these facts would deprive defendant of due process; (3) plaintiffs have failed to exhaust their contractual *946 remedies; (4) injunctive relief is forbidden by Norris-LaGuardia.
The Equal Employment Opportunity Commission appliеd for and is hereby granted leave to file its briefs as amicus curiae on the questions raised by defendants’ motions to dismiss.
TIMELINESS OF COMPLAINT
The Court can not agree with defendants’ position as to the time periods for bringing actions under this Title. While a very small number of courts have agreed with defendants’ position, see, e. g., Miller v. International Paper Co.,
FAILURE TO ALLEGE THAT A SWORN CHARGE WAS FILED WITH EEOC
Relying upon the recent case of Choate v. Caterpillar Tractor Co.,
SCOPE OF ISSUES LITIGABLE IN DISTRICT COURT AS RELATED TO CHARGE FILED BEFORE EEOC
Defendant, Georgia Power, contends, without citation of authority, that it cannot be required in this proceeding to defend against any charges different from or beyond the scope of the charge filed with EEOC. Georgia Power further takes the position that this complaint is insufficient absent such allegations as would allow defendant and the court to determine whether the charges asserted herein are different from, or beyond the scope of, those contained in the administrative charge. Plaintiffs would take the position that the charges are substantially identical, relying upon a comparison of the complaint and Exhibit A. EEOC would view this issue from a different perspeсtive and Con
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tend that the allegations contained in the complaint of this suit may encompass any kind of discrimination like or related to allegations contained in the charge and growing out of such allegation during the pendency of the case before the Commission. With the limitation herein expressed, the Court must agree with the position of the EEOC. Any оther result would be destructive of the beneficent ends of this legislation. It appears that a large number of the charges with EEOC are filed by ordinary people unschooled in the technicalities of the law. As stated in the brief filed by EEOC: “To compel the charging party to specifically articulate in a charge filed with the Commission, 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 practices to which they are subjected.” See United States v. Mayton,
The correct rule is that the complaint in the civil action is confined to those issues the original complaint has standing to raise, but may properly encompass any such discrimination like or reasonably related to the allegations of the charge and growing out of such allegations during the pendency of the case before the Commission. 2
This rule, broadly speaking, in effect limits the civil actiоn to that range of issues that would have been the subject matter of the conciliation efforts between EEOC and the employer. If the civil action were not so limited, then the primary emphasis of this Title would be circumvented, i. e., an emphasis upon voluntary settlement of all issues without an action in the District Court. Therefore, it must be emphasized that this Court’s holding as to the scope of this action is not based on analogies to NLRB proceedings nor to any deference to the expertise of the Commission but is based on the inherent logic of the stated rule within the statutory scheme heretofore described. As to whether the complaint in the instant case falls within the scope of the issues finally framed by the EEOC, this is question that must await the trial of this case. Georgia Power has given no indication as to how this action in fact goes beyond permissible bounds. Lacking such proof, the Court will not now further consider this question. It should be emphasized that the EEOC is not free to manipulate the scope of a case beyond the bounds herein expressed. The expаnsion of a particular charge is limited to the issues that a particular complainant has standing to raise, as become evident from the Court’s discussion of the class aspects of this case. As an example of such limitation see Colbert v. H-K Corporation, Inc., No. 11599, N.D.Ga. August, 1968.
ACTION MAINTAINABLE AS A CLASS ACTION
Unquestionably, class actions are appropriate under Title VII. See, e. g., Oatis v. Crown Zellerbach Corp.,
MOTION TO STRIKE EXHIBIT A
Defendants have moved to strike from the complaint the decision of the EEOC on the grounds: (1) the decision of the EEOC is irrelevant to the issues in this proceeding and extremely prejudicial to defendants; (2) the provisions of § 2000e-5(а) forbid the mentioning of this decision. 42 U.S.C. § 2000e-5(a) provides in relevant part:
If the Commission shall determine, after such investigation, that there is reasonable cause to believe that the charge is true, the Commission shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation and persuasion. Nothing said or done during and as a part of such endeavors may be made public by the Commission without the written consent of the parties, or used as evidence in a subsequent proceeding. Any officer or employee of the Commission, who shall make public in any manner whatever any information in violation of this subsection shall be deemed guilty of a misdemeanor and upon conviction thereof shall be fined not more than $1,000 or imprisonеd not more than one year.
In a close reading of this section, it appears that the prohibitions therein relate not to the investigation by the Commission, nor to the findings of reasonable cause but to the endeavors attempting to eliminate the alleged unlawful practices by informal methods of conference, conciliation and рersuasion. As a matter of pleading, it would not appear that this document is necessary or relevant in stating a cause of action. The Court has already ruled as the extent to which the issues litigable in District Court must relate to the charge filed before the EEOC. However, this is a matter for decision on the trial of this case, through the use of admissible evidence. Motions to strike are not favored under the federal rules, and a portion of the complaint should not be stricken unless the allegations are actually prejudicial
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to the adverse party. See, e. g., Augustus v. Board of Public Instruction, etc.,
Accordingly, the motion to strike Exhibit A is granted.
EXHAUSTION OF CONTRACTUAL REMEDIES AND PRESUMPTION BY LMRA
Initially, the Court rejects Local 84’s argument that the complaint fails to state a cause of action because of a failure to attach the collective bargaining contract. This contention is bаsed upon a misconception of the nature and requirements of federal pleadings. The rights within this contract and the proof of discriminatory treatment in the functioning of this contract are evidentiary matters that need not be specifically enumerated in the pleadings. Local 84 argues that the federal labor statutes and the cases thеreunder give preference to the contractual settlement of disputes and that the utilization and exhaustion of contractual remedies, i. e., the filing of grievances, are prerequisites to the bringing of a civil suit on such claims, citing Republic Steel Corp. v. Maddox,
INJUNCTIVE RELIEF FORBIDDEN BY § 6 OF NORRIS-LaGUARDIA
Local 84’s argument that this Court lacks jurisdiction to grant an injunction because of § 6 of Norris-LaGuardia is not supported by argument or citation of authority. 42 U.S.C. § 2000e-5(h) provides that Nprris-LaGuardia, 29 U.S.C. §§ 101-115, shall not be applicable to civil actions brought under Title VII, thus undercutting any possible basis for the validity of defendant’s position on this matter.
PROCEEDINGS BEFORE EEOC IN VIOLATION OF UNITED STATES CONSTITUTION
Local 84 raises constitutional questions as to two aspects of this case: (1) the class action and (2) failure to have an opportunity to be heard during the EEOC investigative process. These constitutional contentions are quitе nebulous and considered to be without merit. Possibly defendant overemphasizes the importance of the proceedings *950 before the EEOC. Those proceedings were not adversarial in nature and are in no way binding on this Court. The Court has already indicated the very limited extent to which the decision of the EEOC is even relevant in this Court. Moreover, the Court has already discussed the limitations upon the class aspects of this case, thus undercutting defendant’s constitutional arguments.
It is so ordered.
Notes
. This view is supported by the regulations of the EEOC which allow the aggrieved party to amend “to cure technical defects or omissions, including failure to swear to tlie charge * * 29 CFR 1601.11.
. The basis for this rule is clearly stated at footnote 10 оf the EEOC brief:
The practice of the Equal Employment Opportunity Commission is to follow this general principle [recited in the above text] and take evidence, make findings, and seek to obtain relief with respect to those unlawful employment practices which are like and related to the charge filed and which grow out of the procеedings before the Commission. In order that respondent employers will be susceptible to the conciliation process, we believe there should be consistency between the scope of relief that is available in court and that which is likely to flow from conciliation by the Commission; and that deference should therefore be given the Commission’s interpretation of the scope of inquiry.