JOHN R. BROWN, Chief Judge:
This case is another of those now frequently coming to us
The problem arises from the unique structure of Title VII which limits access to the courts by conditioning the filing of suit upon a previous administrative charge with the EEOC
The Employee, Jenkins, is a Negro and was working for the Employer, United Gas Corporation, as a "serviceman's helper" at the time this action was commenced. In May 1965 Employee applied for promotion to the position of "serviceman." When an opening occurred in August 1965 it was filled by a white employee who was not, so Employee alleges, qualified according to Employer's own job specifications. Employee filed a charge with EEOC on November 4, 1965, complaining that he was refused the promotion because of his race. The investigation by EEOC substantiated the charge.
But in keeping with the Act's short timetable EEOC gave notice (§ 706(e); 42 U.S.C.A. § 2000e-5(e)) that due to heavy workload, efforts at conciliation had not been undertaken and Employee was notified of his right (§ 706(e), (f); 42 U.S.C.A. § 2000e-5(e), (f)) to file suit in Federal District Court.
But within a few weeks Employer offered the coveted promotion to Serviceman, which Employee accepted one week later. Shortly, Employer moved to dismiss the action as moot since Employee was tendered and accepted promotion to Serviceman. Although the moving papers warranted the Judge to conclude that there was no dispute about the offer and acceptance of this individual promotion, the court without more — and without ever making any factual inquiry
Neither on the score of the action in Employee's own right or his representation of those in his class will this outcome jell. Like considerations bear on each claim and they start with the unusual structure of Title VII. Of course
Although there are restrictions both in time and pre-conditions for court action this does not minimize the role of ostensibly private litigation in effectuating the congressional policies. To the contrary, this magnifies its importance while at the same time utilizing the powerful catalyst of conciliation through EEOC. The suit is therefore more than a private claim by the employee seeking the particular job which is at the bottom of the charge of unlawful discrimination filed with EEOC. When conciliation has failed — either outright or by reason of the expiration of the statutory time-table — that individual, often obscure, takes on the mantel of the sovereign. Newman v. Piggie Park Enterprises, 1968, 390 U.S. 400, 88 S.Ct. 964, 19 L. Ed.2d 1263; Oatis v. Crown Zellerbach, supra. And the charge itself is something more than the single claim that a particular job has been denied him. Rather it is necessarily a dual one: (1) a specific job, promotion, etc. has actually been denied, and (2) this was due to Title VII forbidden discrimination.
Considering that in this immediate field of labor relations what is small in principal is often large in principle,
In dollars Employee's claim for past due wages may be tiny. But before a Court as to which there is no jurisdictional minimum, (§ 706(f), 42 U.S.C.A. § 2000e-5(f)), it is enough on which to launch a full scale inquiry into the charged unlawful motivation in employment practices. It is even more so considering the prayer for injunction as a protection against a repetition of such conduct in the future.
With so much riding on the claim of the private suitor, the possibility that in this David-Goliath confrontation economic pressures will be at work toward acceptance of preferred post-suit jobs and the equal possibility that an employer would devise such a resist-and-withdraw tactic as a means of continuing its former ways calls for the trial court to keep consciously aware of time-tested principles particularly in the area of public law. Such actions in the face of litigation are equivocal in purpose, motive and permanence.
The dismissal fares no better as to the class action. The Trial Judge's principal thesis on this score was "that no common question of fact exists as to all Negro employees of the defendant, since different circumstances surround their different jobs and qualifications in the structure of the corporation."
To Oatis we need only add a few comments. The holding that the nature of the claims asserted make it a 23(b) (2)
Indeed, if class-wide relief were not afforded expressly in any injunction or declaratory order issued in Employee's behalf, the result would be the incongruous one of the Court — a Federal Court, no less — itself being the instrument of racial discrimination, which brings to mind our rejection of like arguments and result in Potts v. Flax, 5 Cir., 1963, 313 F.2d 284, 289.
The reason given by the Trial Court (see text at note 12, supra) requires only slight, if any, further answer. Basically it misconceives the purpose of the lawsuit. The Federal Judge — awesome as are his responsibilities and powers when invoked by a timely, proper (§ 706(e), (f) 42 U.S.C.A. § 2000e-5(e), (f)) suit — does not sit as a sort of high level industrial arbiter to determine whether employee X rather than Y should have a promotion. Relative competency and qualification, are involved, to be sure. But they are relevant in determining whether denial of the coveted promotion was motivated by unlawful discrimination of race, color, sex or national origin. This is the familiar problem in § 8(a) (3), 29 U.S.C.A. § 158(a) (3) discharges in NLRB cases and, closer home, voter registration cases in which, of course, the class-action-sought-for voting right is the most highly personalized, individualized thing imaginable.
And finally, as Oatis makes clear in its reference to sub-classes, the Court under F.R.Civ.P. 23 has the duty, and ample powers, both in the conduct of the trial and relief granted to treat common things in common and to distinguish the distinguishable.
Reversed and remanded.
Pending but yet undetermined before another panel are: No. 24789, Hyler v. Reynolds Metal Co.; No. 24810, Dent & Equal Employment Opportunity Comm. v. St. Louis-San Francisco Ry.; No. 24811, Muldrow v. H. K. Porter Co.; No. 24812, Pearson v. Alabama By-Products Corp.; No. 24813, Pettway & Equal Employment Opportunity Comm. v. American Cast Iron Pipe Co.
The legislative history is silent on the requisites of the charge. This is not unusual since the charge is the catalyst which starts the informal conciliation proceedings of EEOC. It is in keeping with the purposes of the Act to keep the procedures for initiating action simple. It was anticipated that the charge would be filed by a "person claiming to be aggrieved." It is not until conciliation efforts have failed and suit is to be filed that the court is authorized to appoint an attorney to prosecute the action (§ 706(e), 42 U.S.C.A. § 2000e-5(e)). For a lay-initiated proceeding it would be out of keeping with the Act to import common-law pleading niceties to this "charge," or in turn to hog-tie the subsequent lawsuit to any such concepts. All that is required is that it give sufficient information to enable EEOC to see what the grievance is about. See United States v. Mayton, 5 Cir., 1964, 335 F.2d 153, 160-61.
See decision of Feb. 17, 1966 annexed to Employee's complaint below:
Ironically, Employer on the ground that it was an F.R.Civ.P. 23(b) (2) claim, not a 23(b) (3) type, might even assert it as res judicata as to all members of the class. See F.R.Civ.P. 23(c) (3).
Except for the pattern or practice situation, (§ 707(a), 42 U.S.C.A. § 2000e-6(a)), in which the Attorney General may institute suit and intervention by him by leave of the court on the Attorney General's certification that the case is of general public importance (either on his own or in response to recommendation of EEOC, (§ 705(g) (6), 42 U.S.C.A. § 2000e-4(f) (6)), the suit is between private parties.
See Atlanta Terminal Company & Southern Ry. Co. v. System Federation No. 21, Railway Employes' Dep't., AFL-CIO, 5 Cir., 1968, 397 F.2d 250, affirming a District Court award of $12,000 in attorney fees on a recovery of $2,286.54 in damages. See also Local No. 92, International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO v. Norris, 5 Cir., 1967, 383 F.2d 735.
And see Cypress v. Newport News General & Nonsectarian Hosp. Ass'n., 4 Cir., 1967, 375 F.2d 648, 658 (en banc): "Such a last minute change of heart is suspect, to say the least. We recently had occasion to observe in Lankford v. Gelston, 364 F.2d 197, 203 (4 Cir. 1966), under somewhat different circumstances, that `protestations of repentence and reform timed to anticipate or to blunt the force of a lawsuit offer insufficient assurance' that the practice sought to be enjoined will not be repeated." And in a different context we phrased it this way. "What has been adopted can be repealed, and what has been repealed can be readopted. We conclude, therefore, that the plaintiffs are entitled to have their injunction against state action depriving them of their constitutional rights, based on the record at the time the case was tried." Anderson v. City of Albany, 5 Cir., 1963, 321 F.2d 649, 657. See Bailey v. Patterson, 5 Cir., 1963, 323 F.2d 201, cert. denied, City of Jackson v. Bailey, 1964, 376 U.S. 910, 84 S.Ct. 666, 11 L.Ed.2d 609.
"Illustrative are various actions in the civil-rights field where a party is charged with discriminating unlawfully against a class, usually one whose members are incapable of specific enumeration. See Potts v. Flax, 313 F.2d 284 (5th Cir. 1963); Bailey v. Patterson, 323 F.2d 201 (5th Cir. 1963), cert. denied, [City of Jackson v. Bailey, 76 U.S. 609, 84 S.Ct. 666, 11 L.Ed.2d 609] (1964); Brunson v. Board of Trustees of School District No. 1, Clarendon Cty., S. C., 311 F.2d 107 (4th Cir. 1962), cert. denied, 373 U.S. 933 [83 S.Ct. 1538, 10 L.Ed. 2d 690] (1963); Green v. School Bd. of Roanoke, Va., 304 F.2d 118 (4th Cir. 1962); Orleans Parish School Bd. v. Bush, 242 F.2d 156 (5th Cir. 1957), cert. denied, 354 U.S. 921 [77 S.Ct. 1380, 1 L.Ed.2d 1436] (1957); Mannings v. Board of Public Inst. of Hillsborough County, Fla., 277 F.2d 370 (5th Cir. 1960); Northcross v. Board of Ed. of City of Memphis, 302 F.2d 818 (6th Cir. 1962), cert. denied, 370 U.S. 944 [82 S.Ct. 1586, 8 L.Ed.2d 810] (1962); Frasier v. Board of Trustees of Univ. of N. C., 134 F.Supp. 589 (M.D.N.C.1955, 3-judge court), aff'd, 350 U.S. 979 [76 S.Ct. 467, 100 L.Ed. 848] (1956). Subdivision (b) (2) is not limited to civil-rights cases * * *." 39 F.R.D. 102 (1966).
See also Hall v. Werthan Bag Corporation, M.D.Tenn., 1966, 251 F.Supp. 184, 186: