Rehearing and Rehearing En Banc Denied October 7, 1969.
JOHN R. BROWN, Chief Judge:
This case involves a unique question arising under Title VII of the 1964 Civil Rights Act.
The Company has been a contractor with the United States since the effective date of Executive Order No. 10925 signed by President Kennedy, and therefore has been under an obligation since 1961 to undertake an affirmative action program to eliminate discriminatory employment based on race or to institute affirmative action programs to assure equal employment opportunities to minority groups.
After the effective date of Title VII of the Civil Rights Act of 1964,
We must first determine whether the District Court erred in refusing to treat Wrenn's motion as ancillary to Pettway I. We find that it did. Wrenn's motion for injunction pending appeal specifically invoked F.R.Civ.P. 62 (c). It plainly asserted that while Pettway I was pending in the District Court, Wrenn had been suspended by Employer for two weeks supposedly because of his involvement in an altercation with another employee, but that his later discharge actually resulted from charges filed with EEOC protesting that suspension, and that both the suspension and discharge were the result of Wrenn's continuing efforts to seek relief under Title VII from racially discriminatory employment practices assailed in Pettway I. Wrenn sought reinstatement to maintain the status quo pending determination of the question whether, in fact, the Company was in violation of Title VII. Regardless of the District Court's view concerning the necessity for conciliation efforts before suit could be filed,
That Pettway I was dismissed for want of jurisdiction, rather than on the intrinsic merits, is a matter of no consequence. Of course, the Trial Court could not, during the pendency of the appeal, take action with respect to the order then under review which would hinder or frustrate
We therefore find that the District Court should have considered the motion as ancillary to Pettway I. Considering that the denial of a preliminary injunction was for nearly all practical purposes the ultimate determination of Wrenn's case on the merits — maybe as to both Pettway I as well as II — we look upon it in that light, uninsulated by the usual principle that tests a grant or denial of preliminary injunctions in terms of abuse of discretion. Here there were a number of reasons clearly calling for interim protection.
The question of charging party privilege is one of first impression under Title VII. The Employer's position, as we understand it, is that Wrenn's allegations contained in his July 13, 1967 letter to EEOC "constitutes a false and malicious accusation that [Employer] bribed or improperly influenced federal officers in the exercise of their official duties." The Employer maintains that it was knowingly and maliciously libeled and discharged Wrenn for that reason.
Wrenn, on the other hand, makes a dual response. First, he maintains that the allegedly offensive portion of the letter
It bears repeating, that EEOC, two months later, arrived at exactly the opposite conclusion. See note 6 supra. EEOC declared: "Charging party's statements were made in the exercise of his right under Title VII of the Civil Rights Act of 1964 to complain to this Commission and to avail himself fully of our power to hear, decide, and attempt to conciliate charges of job discrimination that are within our jurisdiction. * * * Reasonable cause exists to believe that the Respondent discharged Charging Party as an act of reprisal in violation of Section 704(a) of Title VII of the Civil Rights Act of 1964 as alleged."
This is particularly required under the machinery set up by Title VII. Unlike so many Governmental structures in administrative law, EEOC is an administrative agency without the power of enforcement. While it can subpoena witnesses, hold hearings, and attempt conciliation, it has no authority to issue orders or compel enforcement. More than that, 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), Government does not enter the litigation. The suit is between private parties. The burden of enforcement rests on the individual through his suit in Federal District Court. But charges must first have been filed with EEOC. Consequently, the filing of charges and the giving of information by employees is essential to the Commission's administration of Title VII, the carrying out of the congressional policy embodied in the Act and the invocation of the sole sanction of Court compulsion through employee instituted suit. "Whether in name or not, the suit is perforce a sort of class action for fellow employees similarly situated." Jenkins, supra, 400 F.2d at 33. "When conciliation has failed — either outright or by reason of the expiration of the statutory timetable — that individual, often obscure, takes on the mantel of the sovereign." Jenkins, supra, 400 F.2d at 32.
Both EEOC and Employer claim to find support for their view in a close examination of § 8(a) (4) of the National Labor Relations Act, 29 U.S.C.A. § 158 (a) (4) and § 15(a) (3) of the Fair Labor Standards Act, 29 U.S.C.A. § 215 (a) (3) as an aid in interpreting § 704 (a) of Title VII.
We hold that where, disregarding the malicious material contained in a charge (or petition for reconsideration, or other communication with EEOC sufficient for EEOC purposes, or in a proceeding before EEOC) the charge otherwise satisfies the liberal requirements of a charge,
This letter (note 5 supra) for reconsideration was a good charge. In Parts , , , and  Wrenn, as Chairman of the Committee For Equal Job Opportunity clearly criticizes the internal operations of EEOC. Part  is a categorical allegation that Employer is violating the Act and intends to continue to violate the Act. Wrenn, and especially this Committee, were clearly entitled to make these charges. The District Judge did not say that Wrenn could be discharged for making these charges. With Parts , , , and  constituting arguably good charges deserving of EEOC investigation and later employee-instituted suit, the price is too high to permit the presence of Part  (later claimed or proved to be false or malicious) to allow the Employer to discharge the employee, and worse, throw out all of the charges with the awesome finality of a common-law demurrer. The Employee is not stripped of his protection because he says too much. If he says enough the Employee can suffer no detriment by virtue of having filed charges with EEOC which also contain false or malicious statements. By utilizing EEOC machinery he is exercising a protected right.
Since the Employee was discharged because he filed the charge and his request for reconsideration with EEOC, his discharge was a violation of § 704(a) and he must be reinstated and afforded other appropriate relief including appropriate back pay and such further protective
The Trial Court found that Wrenn was not discharged by reason of racial discrimination (findings 6 and 9, note 13 supra). The Judge expressly found that he was discharged for having made the false, malicious statement in the charge (findings 4 and 9, conclusion 3, note 13 supra). On the Employer's own candid story, "when it received knowledge of the making by [Wrenn] of the false and malicious accusations of bribery against it, [Employer] instituted prompt disciplinary action and discharged [Wrenn] for this reason."
The case is reversed and remanded for further proceedings not inconsistent with this opinion.
Reversed and remanded.
Of the First Circuit, sitting by designation.
The complaint filed in Pettway I was brought as a class action on behalf of the named Negro employees and all other Negro persons similarly situated and alleged that Employer limits the employment opportunities of Negro employees in the apprenticeship and journeyman programs, that Negro employees have been denied employment opportunities because of Employer's long-standing policy and practice of hiring Negroes only for certain job classifications and refusing to promote them out of these racially-restricted job classifications, and that Employer maintained racially-segregated rest rooms, lunch rooms, medical, dental facilities and recreational and charitable activities. The prayer for relief prayed that the Court enjoin Employer from continuing its policy and practice of limiting the employment opportunities of the plaintiff because of race.
These cases were dismissed by the District Court and the issue on appeal was whether conciliation efforts by EEOC are a jurisdictional necessity before a charging party may file suit in District Court. Reversing the District Court, we held that efforts at conciliation are not a prerequisite to filing suit. Our decision was presaged by the recent, thoughtful opinion of the Fourth Circuit in Johnson v. Seaboard Airline Railroad Co., No. 12154 and Walker v. Pilot Freight Carriers, Inc., No. 12155, 4 Cir., 1968, 405 F.2d 645 [No. 12154 & No. 12155, October 29, 1968]. Cf. Jenkins v. United Gas Corp., 5 Cir., 1968, 400 F.2d 28.
The chronology of Pettway I:
We do not consider the dicta in Corona Coal Co. v. Southern Ry., N.D. Ala., 1920, 266 F. 726, aff'd, 260 U.S. 698, 43 S.Ct. 91, 67 L.Ed. 470, as controlling, since it only affects the exercise of the court's discretion.
Section 8(a) (4) National Labor Relations Act, 29 U.S.C.A. § 158(a)(4) provides:
Section 15(a) (3) of the Fair Labor Standards Act, 29 U.S.C.A. § 215(a)(3) provides:
The Supreme Court, in explaining its rationale that the federal interest in regulating labor relations and the State interest in redressing libel were mutually exclusive, noted that the Labor Board had adopted a policy of denying the protection of the LMRA to a party intentionally circulating defamatory or insulting material known to be false. According to the Court, protection of malicious libel under the "preemption doctrine" would be contrary to the congressional intent and the judicial interpretation of the Labor Act. See San Diego Building Trades Council, Millmen's Union, Local 2020 v. Garmon, 1959, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775. "[T]he labor movement," observed the Court in Linn, "has grown up and must assume ordinary responsibilities [to adopt procedures calculated to prevent malicious utterances of defamatory statements]." 383 U.S. at 63, 86 S.Ct. at 663.
Likewise, these cases, so strongly urged, are not decisive. Socony Mobile Oil Co. v. NLRB, 2 Cir., 1966, 357 F.2d 662; NLRB v. Coca-Cola Bottling Co., 7 Cir., 1964, 333 F.2d 181; Walls Mfg. Co. v. NLRB, 116 U.S.App.D.C. 140, 1963, 321 F.2d 753; Goldberg v. Bama Mfg. Corp., 5 Cir., 1962, 302 F.2d 152, 93 A.L.R.2d 603 to the effect that only false and inaccurate and not malicious statements are protected. However, these cases are clearly not controlling here as this case arose in an entirely different proceeding under an Act with an entirely different purpose and before an agency with an entirely different function and severely limited power.
For other examples of the protection afforded employees in the labor area see Wirtz v. Continental Finance and Loan Co., 5 Cir., 1964, 326 F.2d 561; Mitchell v. De Mario Jewelry, 1960, 361 U.S. 288, 292, 80 S.Ct. 332, 4 L.Ed.2d 323, NLRB v. Whitfield Pickle Co., 5 Cir., 1967, 374 F.2d 576.