107 F.R.D. 84 | S.D.N.Y. | 1985
OPINION
Plaintiff Lewis Virgo is a black man of Jamaican origin. In 1972, he sought membership in defendant Local Union 580 of the International Association of Bridge, Structural, and Ornamental Iron Workers (“Local 580” or the “Union”) by taking and successfully completing a journeyman’s test. Although Virgo passed the test in 1972, he was not admitted as a member of the Union until 1980, a delay he attributes to racially discriminatory admission practices by defendant.
On November 10, 1976, Virgo filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”), which referred his complaint to the New York State Division of Human Rights (the “Division”). Although the Division determined after investigation that there was probable cause to believe defendant had engaged in the unlawful discriminatory practices complained of, a State Administrative Law Judge (“AU”) dismissed the complaint upon the ground that a separate action by the EEOC against Local 580 (the “EEOC action”) and the consent judgment entered therein ousted the division of jurisdiction over the matter. The AU’s order of dismissal was affirmed on appeal to the State Human Rights Appeal Board and on February 10, 1984 the EEOC issued Virgo a notice of right to sue. On March 5, 1984, plaintiff commenced this action pro se, charging defendant with employment discrimination on the basis of his race, col-
Local 580 asserts that the delay in Virgo’s admission can be explained by reference to the EEOC action and the consent judgment therein. In 1971, the Government, for whom the EEOC was later substituted as plaintiff, commenced an action against Local 580 and other New York City construction unions (later severed) seeking injunctive relief for alleged racially discriminatory practices concerning admission, referral, and other matters relating to employment in the building trade. As a result, defendant asserts, it entered into negotiations with the United States Attorney’s Office and the EEOC regarding the admission of minority applicants to Local 580, during which time the admission of all applicants who had taken and passed the journeyman’s test in the years 1971 through 1975, regardless of their race, col- or, or national origin, was stayed. Thereafter, on July 21, 1978, a consent judgment was entered in the EEOC action which provided, inter alia, that eighteen nonwhites who had taken and passed the journeyman’s test in the years 1971 through 1975, who were physically fit, and who had responded to a joint mailing previously conducted by Local 580, the EEOC, and the U.S. Attorney’s Office would be invited to join the Union, with selection priority based upon the dates of their examinations and receipt of their applications.
According to defendant, the joint mailing, which was conducted in late 1975 and early 1976, was based upon a list of names and addresses compiled by the Union from the membership applications submitted by the applicants. Virgo was on the list but did not respond to the mailing because, as the Union later learned, he had changed his address several times without notifying defendant or the U.S. Attorney’s Office and thus had not received the mailing. Defendant asserts that the U.S. Attorney’s Office, at the Union’s urging, thereafter made a second mailing to Virgo and others who had not received the first mailing but insisted that no one who responded to the second mailing could be admitted to Local 580 until after all those who had responded to the first mailing were admitted. In sum, the Union asserts that Virgo’s admission was delayed from 1972 to 1980 by a combination of factors having nothing to do with alleged discriminatory conduct on its part: that due to negotiations in the EEOC action, the admission of all applicants who passed the journeyman’s test in the years 1971 to 1975 was delayed until after the consent judgment was entered in 1978, and that Virgo’s admission was delayed still further because he failed to apprise the Union or the United States Attorney’s Office of his whereabouts and because the latter then insisted that admission priority be given to those who had responded to the first mailing.
Defendant now moves for summary judgment upon the grounds that Virgo’s Title VII claim is time-barred, fails to state a prima facie case of unlawful discrimination, and is precluded under the doctrine of res judicata by the consent judgment entered in the EEOC action. After defendant filed its motion, plaintiff retained an attorney and cross-moved to amend his pro se complaint. His proposed amended complaint repeats the Title VII claim, though modifying it to include a charge that during the period in question the Union also engaged in discriminatory referral practices. The proposed amended complaint also asserts a new claim under 42 U.S.C. § 1981, charging that defendant failed to fulfill its contractual obligation under the consent judgment, of which Virgo claims to be an intended third party beneficiary, by failing to provide the United States Attorney’s Office with Virgo’s then-current mailing address. In sum, as set forth in the proposed amended complaint, the Title VII claim focuses on alleged discriminatory ad
Leave to amend a complaint should be freely given where, as here, there is no allegation that prejudice would result,
THE TITLE VII CLAIM
As already noted, the proposed amended Title VII claim charges that defendant failed to admit plaintiff or to refer him for employment on the same basis as whites. Defendant challenges this claim on several grounds. First, it argues that the claim is time-barred because Virgo has failed to allege a discriminatory act by defendant that occurred within 300 days prior to December 2, 1976, the date he filed charges with the EEOC and the Division, as required by 42 U.S.C. § 2000e-5(e).
To avoid the Title VII time-bar by alleging a continuing violation, a plaintiff must allege a present violation, not merely a present adverse impact of a past violation.
As to the alleged referral violations, defendant argues that this charge was made for the first time in the proposed amended complaint and therefore constitutes a new claim under Title VII that was not the subject of a complaint filed with the EEOC or the Division. Consequently, defendant asserts, the requirements of 42
[w]e look not merely to the four corners of the often inarticulately framed charge, but take into account the “scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination.” Accordingly, we have previously construed Title VII charges to include allegations of “continuing discrimination” that occur “even after” the complaint is filed.13
In the instant case, the EEOC had sufficient notice of and opportunity to investigate the claimed referral violations. According to the consent judgment, the complaint filed in the EEOC action sought injunctive relief against Local 580 and others as to “any racially discriminatory employment, membership, or referral practice” and was broadly addressed to the “terms, conditions or privileges of employment of nonwhites in the building trade in which the members of Local 580 are engaged,” including admission and referral. Since the EEOC was already concerned that Local 580 engaged in discriminatory referral practices generally — indeed, at the very time Virgo filed his charge, the agency allegedly was negotiating a consent judgment that included lengthy and detailed provisions governing the Union’s referral practices — the referral violations alleged by Virgo are not likely to have caught the EEOC by .surprise. They are within the scope of the EEOC investigation that reasonably could be expected to grow out of the charge Virgo filed with the agency. The referral violations in the proposed amended complaint do not constitute a separate Title VII claim for purposes of 42 U.S.C. § 2000e-5(e).
Defendant next contends that Virgo has failed to plead a prima facie case of unlawful discrimination. Although the proposed amended complaint, when read in the light most favorable to plaintiff, meets the liberal standard for a prima facie case of racial discrimination set forth in McDonnell Douglas Corp. v. Green,
Defendant’s final attack on the Title VII claim is based upon the doctrine of res judicata. The Union argues that the claim is identical to those asserted by the EEOC in its action against Local 580, that Virgo was included in a group for which the EEOC sought relief, and that the consent judgment entered in that action is a prior final judgment on the merits of those claims. At the outset, it should be emphasized that Virgo’s Title VII claim may not be identical to those asserted by the EEOC in' its action. Whereas Virgo seeks relief for discrimination against him personally, the EEOC’s complaint, as described in the consent judgment, alleged that “Local 580 was engaged in a pattern and practice of resistance to the full enjoyment by nonwhites of rights secured to them by [Title VII].” A claim of a union-wide pattern and practice of discrimination and a claim of discriminatory treatment of an individual applicant are not identical, and an adjudication of one is not necessarily an adjudication of the other.
Even assuming that Virgo’s Title VII claim is identical to those covered by the consent judgment, however, defendant’s res judicata attack is without merit. In General Telephone Co. v. EEOC,
[t]he 1972 amendments retained the private right of action as “an essential means of obtaining judicial enforcement of Title VII,” while also giving the EEOC broad enforcement powers. In light of the “general intent to accord parallel or overlapping remedies against discrimination,” we are unconvinced that it would be consistent with the remedial purpose of the statutes to bind all “class” members with discrimination grievances against an employer by the relief obtained under an EEOC judgment or settlement against the employer. This is especially true given the possible differences between the public and private interests involved.18
Thus, a consent judgment in an EEOC enforcement action does not preclude an individual who was not a party to the action from instituting a separate Title VII action alleging discrimination that was the subject of the EEOC’s suit.
This rule does not mean the courts are powerless to prevent undue hardship to a defendant who as a result might be subjected to multiple lawsuits for the same alleged wrong. When the EEOC has prevailed in its action, the Justices emphasized, the Court may reasonably require any individual who “claims under” its judgment to relinquish his right to bring a separate private action. They also noted that an acceptance of the benefits under an EEOC-negotiated settlement could be drafted to provide for a similar relinquish
Accordingly, with respect to the. Title VII claim, plaintiff’s cross-motion for leave to serve and file the proposed amended complaint referred to herein is granted, with the following exception. The demand for general and punitive damages, as distinct from a demand for back pay or other equitable relief available under Title VII, is stricken.
THE SECTION 1981 CLAIM
As already noted, the proposed amended complaint adds a new cause of action under 42 U.S.C. § 1981 which focuses on the alleged fact that Virgo was not contacted about admission to the Union pursuant to the consent judgment until the second mailing was conducted, thereby delaying his admission beyond 1978. Virgo alleges that under the terms of the consent judgment defendant was permanently enjoined from engaging in racially discriminatory conduct with respect to admissions and agreed to perform certain record keeping activities designed to promote a fair and orderly admission of those who passed the journeyman’s test in prior years, including 1972; that he was an intended third party beneficiary of the consent judgment; and that, by transmitting false information to the United States Attorney’s Office and the EEOC as to his address and whereabouts, defendant breached its obligations under the consent judgment to ensure his timely admission to Local 580.
Defendant attacks the sufficiency of this claim upon the basis of the Supreme Court’s statement in Blue Chip Stamps v. Manor Drug Stores
In the instant case, the consent judgment obligates the Union to adopt an affirmative action program designed to eliminate any alleged discriminatory practices concerning nonwhite membership. It expressly provides that eighteen nonwhite persons who passed the journeyman’s test in the years 1971 to 1975, who are physically fit, and who responded to the joint mailings shall be admitted to the Union. It also obligates the Union to maintain certain information about members and permitmen, including their addresses. Thus, plaintiff is a member of a class expressly designated in and benefited by the consent judgment and has beneficiary rights thereunder.
Accordingly, as to the new section 1981 claim, plaintiff’s motion for leave to serve and file the proposed amended complaint referred to herein is granted.
So ordered.
. 42 U.S.C. §§ 2000e to 2000e-17.
. EEOC v. Local 580, Int'l Ass'n of Bridge, Structural, & Ornamental Iron Workers, No. 71 Civ. 2877, Consent Judgment (S.D.N.Y. July 20, 1978).
. State Teachers Retirement Bd. v. Fluor Corp., 654 F.2d 843, 856 (2d Cir.1981); Fustok v. Conticommodity Servs., Inc., 103 F.R.D. 601, 603-04 (S.D.N.Y.1984); Fed.R.Civ.P. 15(a).
. See Haines v. Kerner; 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-96, 30 L.Ed.2d 652 (1972) (per curiam); Satchell v. Dilworth, 745 F.2d 781, 785 (2d Cir.1984); Valente v. Moore Business Forms, Inc., 596 F.Supp. 1280, 1287 (D.Vt.1984); Mason v. Connecticut, 583 F.Supp. 729, 730-31 (D.Conn.1984).
. See Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962); Fluor Corp., 654 F.2d at 856; Bache Halsey Stuart Shields, Inc. v. Tracy Collins Bank & Trust Co., 558 F.Supp. 1042, 1044 (D.Utah 1983); Greenfield v. Kanwit, 87 F.R.D. 129, 132 (S.D.N.Y.1980).
. Morpurgo v. Board of Higher Educ., 423 F.Supp. 704, 713 (S.D.N.Y.1976).
. Since the Title VII claim in the original complaint is renewed in the proposed amended complaint (with a new charge of referral violations), defendant’s challenges to this claim are taken to include those it presented in its summary judgment motion as well as those it presented in its opposition to plaintiff’s cross-motion to amend. Defendant’s challenges to the new section 1981 claim, however, are taken to include only those it presents in opposition to the cross-motion. The factual premise of this claim — defendant’s alleged failure to provide the authorities with plaintiff’s correct mailing address — was not alleged in the original complaint and was not addressed by defendant in its summary judgment motion directed to the original complaint.
. Defendant’s characterization of the filing dates and the limitations period is not correct. According to the proposed amended complaint and the exhibits thereto, the EEOC received Virgo’s charge of discrimination on November 10, 1976 and referred it to the Division on or about December 2, 1976. Since the state proceedings did not terminate until several years later, on December 30, 1983, when the State Human Rights Appeal Board affirmed the ALJ’s dismissal of the complaint, the applicable limitations period is 300 days but the charge of discrimination was not “filed” with the EEOC for statutory purposes until 60 days after the state proceedings were commenced — that is, not
. See Delaware State College v. Ricks, 449 U.S. 250, 258, 101 S.Ct. 498, 504, 68 L.Ed.2d 431 (1980); United Air Lines, Inc. v. Evans, 431 U.S. 553, 558, 97 S.Ct. 1885, 1889, 52 L.Ed.2d 571 (1977); Smith v. American President Lines, Ltd., 571 F.2d 102, 108 (2d Cir.1978); Ganguly v. New York State Dep’t of Mental Hygiene, 511 F.Supp. 420, 427 (S.D.N.Y.1981).
. Acha v. Beame, 570 F.2d 57, 65 (2d Cir.1978); see Association Against Discrimination in Employment, Inc. v. City of Bridgeport, 647 F.2d 256, 274 (2d Cir.), cert. denied, 455 U.S. 988, 102 S.Ct. 1611, 71 L.Ed.2d 847 (1981); Egelston v. State University College at Geneseo, 535 F.2d 752, 755 (2d Cir.1976); Noble v. University of Rochester, 535 F.2d 756, 758 (2d Cir.1976).
. Falls Riverway Realty, Inc. v. City of Niagara Falls, 754 F.2d 49, 54 (2d Cir. 1985).
. See note 8 supra.
. Silver v. Mohasco Corp., 602 F.2d 1083, 1090 (2d Cir.1979) (citations omitted) (quoting American President Lines, 571 F.2d at 107 n. 10, and Noble, 535 F.2d at 758), rev'd on other grounds, 447 U.S. 807, 100 S.Ct. 2486, 65 L.Ed.2d 532 (1980).
. Cf. Mohasco Corp., 602 F.2d at 1090-91; American President Lines, 571 F.2d at 107 & n. 10; Obradovich v. Federal Reserve Bank, 569 F.Supp. 785, 789 (S.D.N.Y.1983); Warren v. ITT World Communications, Inc., 95 F.R.D. 425, 428 (S.D.N.Y.1982).
. 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973).
. See Cooper v. Federal Reserve Bank, 467 U.S. 867, 104 S.Ct. 2794, 81 L.Ed.2d 718 (1984); Edwards v. Boeing Vertol Co., 717 F.2d 761, 766-67 (3d Cir.1983), cert. granted and vacated, — U.S. —, 104 S.Ct. 3566, 82 L.Ed.2d 867 (1984) (remanded for further consideration in light of Cooper, 104 S.Ct. 2794).
. 446 U.S. 318, 100 S.Ct. 1698, 64 L.Ed.2d 319 (1980).
. Id. at 332-33, 100 S.Ct. at 1707-08 (citations omitted) (quoting Alexander v. Gardner-Denver Co., 415 U.S. 36, 45, 47, 94 S.Ct. 1011, 1018, 1019, 39 L.Ed.2d 147 (1974)).
. See Williamson v. Bethlehem Steel Corp., 468 F.2d 1201, 1203-04 (2d Cir.1972), cert. denied, 411 U.S. 931, 93 S.Ct. 1893, 36 L.Ed.2d 390 (1973); EEOC v. Bethlehem Steel Corp., 583 F.Supp. 230, 234 (W.D.N.Y.1984); see also Meyer v. MacMillan Publishing Co., 526 F.Supp. 213, 217 (S.D.N.Y.1981).
. General Telephone, 446 U.S. at 333 & n. 15, 100 S.Ct. at 1708 & n. 15.
. Cf. Gardner-Denver Co., 415 U.S. at 52 & n. 15, 94 S.Ct. at 1021.
. See Great American Federal Savings & Loan Ass’n v. Novotny, 442 U.S. 366, 374-75, 99 S.Ct. 2345, 2350, 60 L.Ed.2d 957 (1979); Davidson v. Yeshiva University, 555 F.Supp. 75, 80 (S.D.N.Y.1982); Staples v. Avis Rent-A-Car System, Inc., 537 F.Supp. 1215, 1220 (W.D.N.Y.1982); Schick v. Bronstein, 447 F.Supp. 333, 338 (S.D.N.Y.1978).
. 421 U.S. 723, 750, 95 S.Ct. 1917, 1932, 44 L.Ed.2d 539 (1975) (citing United States v. Armour & Co., 402 U.S. 673 (1971), and Buckeye Co. v. Hocking Valley Co., 269 U.S. 42, 46 S.Ct. 61, 70 L.Ed.2d 155 (1925)).
. See South v. Rowe, 759 F.2d 610, 612 & n. 1 (7th Cir.1985) (current inmate may intervene in action commenced by former inmate to improve prison conditions and enforce consent decree since he is intended third party beneficiary of decree entered therein); Jones v. Local 520, Int’l Union of Operating Eng'rs, 603 F.2d 664, 666 (7th Cir.1979) (consent decree in Government civil rights action against union
. See Jones, 603 F.2d at 666; see also Jones v. Local 520, Int’l Union of Operating Eng’rs, 524 F.Supp. 487, 490, 493 (S.D.Ill.1981) (construing Court of Appeals's ruling).
. Compare South, 759 F.2d at 612; Jones, 603 F.2d 664; Byrd, 565 F.Supp. at 1469-70; cf. Owens v. Haas, 601 F.2d 1242, 1250 (2d Cir.) (determining who is a third party beneficiary of Government contract under federal law), cert. denied, 444 U.S. 980, 100 S.Ct. 483, 62 L.Ed.2d 407 (1979); United States v. ASCAP, 341 F.2d 1003, 1008 (2d Cir.) (antitrust decree not made in favor of plaintiff), cert. denied, 382 U.S. 877, 86 S.Ct. 160, 15 L.Ed.2d 119 (1965).
. See Lasky, 558 F.2d at 1137; cf. ASCAP, 341 F.2d at 1008.
