GEWIN, Circuit Judge:
The appellants in this case are five Negroes who are employed by the appellee International Paper Company. They brought suit in the District Court for the Northern District of Mississippi on behalf of themselves and others similarly situated against the company, four local unions and three international unions,
After having made vociferous and vigorous contentions in their briefs supporting the district court's class-action holding, the appellees conceded during oral argument that their position is now untenable under the holding in Oatis v. Crown Zellerbach Corp.,
The district court held that, under section 706(e) of the Act, a charging party has sixty days after filing his charge with the EEOC to bring suit and, if he fails, "the action and the right of action no longer exist, and the defendant is exempt from liability."
The appellants brought this suit in the district court some five and a half months after filing their charges with the EEOC. However, the suit was filed within thirty days after the EEOC notified the appellants that voluntary compliance had not been achieved.
Since by the explicit terms of section 706(e) the EEOC has up to sixty days to attempt conciliation, the limitation period applicable to the complainant could in no event be sixty days after the filing of charges with the EEOC. By stacking the thirty-day post-notice period on top of the sixty-day conciliation period it would not be completely unreasonable to argue that the applicable limitation period is ninety days from the filing of the charges. But even that construction is untenable. Suppose, for example, a party files a charge with the EEOC and the latter, after holding the charge for exactly sixty days, mails notice of failure to effect voluntary compliance; the charging party receives the notice two days after mailing and then on the thirtieth day thereafter files suit in the district court. Here, every term of the statutory provision has been complied with and yet, if the aggregated periods fixed the time
We do not quarrel with the appellee-company's contention that, "[w]here rights asserted in a court are statutory in nature, compliance with the statute is a prerequisite to the commencement of a civil action based thereon." However, the difficulty with the proposition is that it assumes the answer to the question before the court. The issue is whether section 706(e) requires the charging parties to bring an action in the district court within a fixed period of time after filing their charges with the EEOC. On this issue, the company has made no enlightening observations but has merely extolled the limpid precision of a statute which we find to a large extent ambiguous.
The confusion concerning the time limitations seems to stem from the inclusion in section 706(e) of both a time limitation on the conciliation efforts of the EEOC and a time limitation on the charging party's right to file suit. The provision states that the EEOC has thirty days, or sixty days if needed, to attempt conciliation by informal means. It also provides that the charging party has thirty days within which to file suit after receiving notice from the EEOC that voluntary compliance has not been achieved.
Considering the genesis of Title VII, the difficulties inherent in section 706(e) are hardly surprising. The distant ancestor of the title was H.R. 405 which would have established a fair employment practices commission with both investigatory and enforcement powers. H.R. 405 was included as an amendment and substitute in H.R. 7152 by Subcommittee No. 4 of the House Judiciary Committee. When the latter bill reached the full committee, the proposed EEOC's enforcement powers were stripped away but, in return, it was given the power to institute civil actions on behalf of the charging party against the alleged discriminator. After passage in the House, H.R. 7152 was sent to the Senate where, by the Mansfield-Dirksen amendments, the power to bring suit was taken from the EEOC and lodged exclusively in the charging party.
Section 707(b) of H.R. 7152, as drawn when it reached the Senate, gave the EEOC ninety days after receiving the charging party's complaint to file suit. However, the aggrieved party was not completely at the mercy of the EEOC
Section 706(e) of the Act provides that notice of failure to conciliate shall be sent by the EEOC and "within thirty days thereafter" the aggrieved person may file suit. It is clear from this provision that the limitation period applicable to the charging party does not begin to run until notice of the failure to obtain voluntary compliance has been sent and received. Thus the question is whether the EEOC, by its failure to observe the limitation period applicable to it — if, indeed, it did fail
Perhaps suspecting the infirmity of the ground adopted by the district court for granting summary judgment, the appellees have zealously asserted another basis for upholding the disposition below.
The record before this court does not indicate what, if anything, the EEOC did toward conciliating the appellants' grievances. However, the EEOC does state in its letters of notice to the appellants that "the Commission has not made a determination as to whether or not there is reasonable cause to believe your charge is valid."
The main thrust of the company's argument is that "the legislative history of Section 706 clearly establishes that conciliation efforts were intended to be, and are, a prerequisite to a civil action under the statute as enacted."
The first element of Title VII's legislative history which the company finds "overwhelmingly" in its favor is the amendment to H.R. 405 introduced by Representative Celler to "make it clear that an attempt would have to be made to conciliate * * * before an action could be brought in the district court."
The legislative remarks which the company finds comforting are of two patterns: they either extol the importance of conciliation or they ambiguously state the procedural chronology, i. e., that judicial enforcement follows conciliation.
We have been shown no convincing reason for crippling the right of charging parties as the appellees urge. The statutory language certainly does not compel such a construction. The appellees would have us hold that the vastness of the problem has stifled the solution devised by Congress. The essence of their position is that, even if the EEOC is overburdened and cannot actively seek voluntary compliance, their right to be importuned and cajoled cannot be infringed by the charging party's right to judicial relief. This obviously misconceives the scheme of the statute. There is no provision in Title VII permitting discrimination until cajolery is duly and fully performed. The real burden of the statute is not upon the EEOC but upon the discriminator. Conciliation is not a
For whatever reason, if voluntary compliance is not achieved within sixty days after the charging party files his complaint with the EEOC, his right to be notified of the failure vests and, upon receipt of notice, he may file suit in the district court. The action or inaction of the EEOC cannot affect the grievant's substantive rights under the statute. We reiterate the holding in Dent that an effort to conciliate by the EEOC is not in any sense a condition precedent to the charging party's right to seek judicial consideration of his grievance.
The unions advance two additional grounds for upholding the district court's grant of summary judgment as to them. First, they contend that the court lacked jurisdiction of the case because they were not named in the charges which the appellants filed with the EEOC. This circuit has already made clear — and we have reiterated in this opinion
The unions' second contention is that, even assuming that they were named in the EEOC charge, they were never served with a copy of the charge and, therefore, cannot be sued. This argument has much in common with the conciliation-prerequisite theory previously considered. Nevertheless, we have decided not to consider this question for two reasons. First, the record before us is barren of any indication whether the unions were served with a charge. And second, the question may not arise upon remand of the case. If the unions have not been charged before the EEOC, the district court will dismiss the complaint as to them. Alternatively, the appellants may have been able to "cure" the defect here challenged. It takes only sixty days to process a charge through the EEOC. Therefore, since the district court's judgment was entered more than a year ago, the appellants have had ample time to
Shortly after the institution of suit in this case, the appellee unions gave the appellants notice of the taking of their depositions "beginning on Wednesday, July 5, 1967 * * *, and continuing thereafter from day to day as the deposition may be adjourned and until the deposition of each of said Plaintiffs named herein shall have been completed . . . ." The company neither gave notice nor joined in the notice filed by the unions. The appellants appeared for deposition on Wednesday, Thursday, and Friday but refused to appear on Saturday. They were ready and willing to continue the depositions as late as convenient to the appellees and to return the following Monday but, apparently because of the unavailability of the chosen court reporter for the ensuing three weeks, the appellees were unwilling to resume the depositions on Monday.
In support of this penalty assessment, the company argues that, since the appellants deliberately failed to heed the deposition notice, the assessment of costs and attorney's fees was well within the broad discretion of the district court. We heartily agree that the discretion of the trial court must be broad if it is to direct the course of the proceedings before it. But as we stated in B. F. Goodrich Tire Co. v. Lyster, "[a]lthough a trial judge's latitude in framing orders and in penalizing failures to comply is broad, his discretion is not limitless."
In the circumstances of this case, we think the district court abused its discretion when it imposed cost and fee penalties upon the appellants. The unions' notice did not necessarily require the taking of depositions on Saturday. The notice stated that depositions were to be taken "from day to day" until completed, which obviously could not and would not be enforced literally. Although many lawyers do work on Saturdays — and Sundays too for that matter — the ordinary business of the law takes place during the week-days. It was perfectly reasonable for the appellants' counsel to expect that weekends would not be included within the phrase "from day to day." Counsel for the parties should have discussed the matter of weekend depositions maturely and reached an amicable agreement based upon mutual convenience.
We reject the company's contention that the appellants should have sought a protective order from the district court. If the unions' notice had stated that depositions were to be taken on the weekend, the burden may well have been upon the appellants to seek protection. But it is not encumbent upon a party to attempt to obtain an eleventh-hour order protecting himself against an unreasonable construction of the terms of the notice. The controlling understanding between the parties is the deposition notice and the controlling consideration is expediency. The whim of counsel and the strategy of obstruction have no recognized place in federal procedure.
Being without justification, the imposition of a penalty upon the unaffluent appellants not only would cause undue hardship but it would also tend to undermine the policy of financially assisting complainants in Title VII suits. As already indicated, when the power of the EEOC to enforce Title VII by court action was struck from H.R. 7152, a new provision was added placing that power in the hands of the individual charging party.
In conclusion, it may be observed that on the surface the present case concerns only the meaning of certain statutory provisions. But beneath the legal facade a faint hope is discernible rising like a distant star over a swamp of uncertainty and perhaps of despair. Those who love their work may sometimes forget that a successful human community requires the performance of many vapid and colorless tasks. Even the most tedious physical labor is endurable and in a sense enjoyable, however, when the laborer knows that his work will be appreciated and his progress rewarded. "Work without hope," said Coleridge, "draws nectar in a sieve, And hope without an object cannot live." The ethic which permeates the American dream is that a person may advance as far as his talents and his merit will carry him.
The judgment of the district court is reversed and the case is remanded for further proceedings not inconsistent with this opinion.
Reversed and remanded.
398 F.2d at 499. See Jenkins v. United Gas Corp., 400 F.2d 28, 33-35 (5th Cir. 1968).
42 U.S.C. § 2000e-5(a) (1964).
This statement was, of course, made prior to the elimination of the EEOC's right to bring suit on behalf of the grievant.