LYNNE, Chief Judge.
Invoking the provisions of Title VII of the Civil Rights Act of 1964,
By Motions to dismiss, the jurisdiction of the court and the plaintiff's right to maintain the action in its present posture have been brought into question. The Equal Employment Opportunity Commission in turn responded with its petition to intervene for the purpose of presenting its views regarding the questions raised by the motions. The court granted its petition and has welcomed the benefit of its views.
One of the questions before the court concerns the necessity of the plaintiff first pursuing remedies available under the collective bargaining agreement or before the National Railroad Adjustment Board. The court agrees with the
A second question before the court is whether the suit was timely filed. Pointing to the fact that section 706 provides a 60 day period for the investigation and conciliation functions of the Commission and a 30 day period for the filing of suit, the defendants have argued that this establishes a period of 90 days from the filing of the charge within which suit must be instituted in order to be timely. However, the court agrees with the plaintiff and the Commission that the 60 day time period provided for the investigation and conciliation of charges is properly to be accorded a directory rather than a mandatory construction and that the Commission is not required to undertake conciliation of charges within the 60 day period in order for a civil action based on the charge to be timely filed thereafter.
There remains the fact that this action, as well as several similar suits under Title VII pending in this court,
The court has devoted the most careful and studied consideration to the resolution of this issue. It has in this study had the benefit of complete and exhaustive briefs, both original and supplemental; the issue has been argued orally as well, and the court has independently researched all available pertinent material. Having done so, the court is firmly of the opinion that conciliation was intended by Congress to be and is a jurisdictional prerequisite to the institution of a civil action under Title VII and that the actions instituted without this prerequisite must accordingly be dismissed.
This is the only result which could be reached consistent with the congressional intent, for the legislative history establishes conclusively and beyond doubt that Congress intended that conciliation be preferred to coercion and that the conciliation step would be a prerequisite to the institution of a civil action under this title.
From the outset and continuously throughout the legislative process which produced this statute, emphasis was placed on the conciliation step and on the fact that enforcement proceedings would not be initiated without an effort having been made to resolve the matter through conciliation.
At an early day in this legislative history, the Report of the House Education and Labor Committee on the bill
The bill reported by the House Judiciary Committee, providing for adjudication by the district courts, was explained in equally emphatic terms as requiring conciliation before the institution of the civil action.
Moreover, while the bill originally contained a clause which would have permitted the institution of a civil action "in advance" of conciliation,
The explanations for the deletion of the "in advance thereof" clause can permit of no question concerning this intent. The amendment to delete the clause was offered by Representative Celler, who not only introduced the bill but was Chairman of the Judiciary Committee which reported it as well, and he explained that "the language is stricken out to make certain that there will be a resort by the Commission to conciliatory efforts before it resorts to a court for enforcement."
It is conceded, as necessarily it must be, that "the effect of deleting the clause was to make Commission-initiated conciliation a condition precedent to the Commission's right to bring suit."
The court cannot agree, for the adoption of this argument would be entirely contrary to logic and to the legislative intent regarding the procedure under the Dirksen compromise.
This measure was not only a compromise in terms and effect but was as well described as "a further softening of the enforcement provisions of Title VII"
Such a construction would require an equally patent disregard for the fact that the procedure under the compromise was explained, just as was the House bill,
This intent was once again emphasized. For example, it was explained that by the conciliation step, "we have leaned over backward in seeking to protect the possible defendants",
It was further explained in a similar vein that "If the procedures before the Commission are unsuccessful the complainant may seek relief in the federal courts", that "Section 706(e) provides for suit by the person aggrieved after conciliation has failed", that "those of us who have worked upon the substitute package have sought to simplify the administration of the bill * * * in terms of seeking a solution by mediation of disputes, rather than forcing every case before the Commission or into a court of law", and that "We have placed emphasis on voluntary conciliation—not coercion."
To incorporate all the expressions of legislative intent which the court has reviewed would unduly extend this opinion. It is enough to say that this sampling provides ample illustration of the unmistakable congressional intent that conciliation efforts would be a prerequisite to the institution of a civil action and, by so doing, to achieve the ends of protecting charged parties against being brought into court without the opportunity to resolve the matter through conciliation and of promoting voluntary compliance in perference to coercion. To hold otherwise would be to sterilize and disregard the clear intent of the Congress which enacted this statute.
The plaintiff and the Commission have urged the view that the bypassing of the conciliation step should be disregarded because "the EEOC received a large number of complaints which made excessive demands upon its small staff."
The court cannot accept the view that a statutory requirement may be disregarded because of the caseload of an administrative agency. As the Court of Appeals for this circuit recently said of the due process requirement, "administrative convenience or necessity cannot override this requirement."
The court should further point out that during the pendency of this case, the Commission amended its procedural rules both to free the conciliation step from the limitations of the 60 day time period
Accordingly, the Commission has by administrative construction now adopted the procedure which is consistent with the intent of the statute and which should have been followed with respect to this case.
It is of further relevance to this case that the position that the civil action is not to be brought until after conciliation has not only been adopted by the Commission through amendment of its procedural rules but has as well been accepted informally as the proper interpretation by its legal office.
Section 706(e) provides that if "* * the Commission has been unable to obtain voluntary compliance with this title, the Commission shall so notify the person aggrieved and a civil action may, within thirty days thereafter, be brought against the respondent named in the charge." To read this clear language by interpolating after "unable" the phrase "because of its caseload," as plaintiff and intervenor have urged at oral arguments and on briefs would be the grossest distortion. For the purpose of this opinion it is sufficient to observe that absent some effort or attempt to obtain voluntary compliance, however minimal, it cannot be said realistically that the Commission has been unable to do so.
The court has also been urged by the plaintiff and the Commission to overlook the defect in this case by resort to section 706(e) which provides for a stay of proceedings "for not more than sixty days pending the termination of * * * the efforts of the Commission to obtain voluntary compliance."
This argument has a certain appeal from the practical standpoint, but it cannot cure the fact that the action was brought without there having been any attempted conciliation whatsoever.
In the first place, it would strain the stay clause beyond its reasonable limits to apply it to a case brought before
In the second place, it is not necessary to go beyond the Act itself to demonstrate that Congress was well aware of the way to provide for the institution of a civil action and then for a stay for the initiation of conciliation when this was the intended procedure. This is the procedure established by section 204 for suits under Title II of the Act, and the court cannot disregard the fact that a different procedure was established for actions under Title VII.
In the third place, it is of even more fundamental importance that "Federal jurisdiction depends on the facts at the time suit is commenced, and subsequent changes neither confer nor devest it."
This principle has a particularly compelling application here, for it was one of the purposes of the conciliation step to provide "due protection" to parties against whom charges are filed, and protection which comes too late is no protection at all.
While the congressional intent is conclusive without more, it should further be said in the interest of complete analysis that the court does not read District Judge Gray's decision in Hall v. Werthan Bag Co., 251 F.Supp. 184 (M.D. Tenn.1966) as authority for the proposition that conciliation may be bypassed. Rather the court believes that case is in agreement that conciliation is a prerequisite to a civil action.
The holding of the case allowed the intervention of another employee with respect to the plaintiff's allegations of discrimination in training, wages, and transfers, the court reasoning that these matters had been the subject of conciliation and that it was not necessary to conciliate again on these matters common to all the Negro employees. At the same time, the court further held that matters which were personal to the intervening employee and which had not been the subject of conciliation would not be heard in the case, "for the Commission has not attempted conciliation in regard to rectifying any alleged injuries which other Negro employees or would-be employees may claim to have suffered as a result of the defendant's alleged discrimination."
While much has been said in argument to the court regarding considerations of fairness to the plaintiffs, it has never been the function of the courts to disregard statutory requirements on the basis of which side can present the most moving emotional argument.
Moreover, the claims of unfairness rest upon surface appearances belied by the actual facts. The plaintiff is not being deprived of his day in court, for he will be entitled to proceed with a civil action once the prerequisite of conciliation has been satisfied, if, indeed, conciliation should not resolve the dispute. Furthermore, Congress did not lose sight of the unfairness which would result to parties against whom charges are filed if they could be brought into court without the conciliation step, and the courts certainly should not lose sight of this fact.
Even so, this is to some extent a hard case from the standpoint of the plaintiff, and it is appropriate enough that he would ask that the court make bad law by utter disregard of a clear congressional purpose.
It should be added that it would be most unrealistic to take the inconsistent comments by Senators Humphrey and Javits at 110 Cong.Record 14188 and 14191 as an accurate reflection of the legislative intent, both because they were addressed to the situation where the Commission finds no reasonable cause and hence has no occasion to undertake conciliation and because they can hardly detract from the force of the expressions of the legislative intent regarding conciliation as a prerequisite to suit where there is a finding of reasonable cause. It may further be noted that the plaintiff has characterized one of these inconsistent remarks as "Senator Humphrey's discredited statement * *." (Original brief for plaintiff, p. 6.)