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February 14, 1980

SUSAN McCARTHY, Plaintiff,

The opinion of the court was delivered by: MUNSON


Susan McCarthy is a community services worker who was employed by the Cortland County Community Action Program (CCCAP) from August of 1973 until November of 1979 when the agency's Board of Directors terminated her employment. Ms. McCarthy has commenced this Title VII action seeking immediate reinstatement through the issuance of a preliminary injunction, arguing that she had been discharged in retaliation for having previously filed sex discrimination charges against the agency. The agency and its board members have cross moved for dismissal, insisting that plaintiff cannot maintain this action until she has exhausted the conciliation procedures provided by the Act. In the event that this motion is denied, the defendants argue alternatively that plaintiff has failed to satisfy the prerequisites for granting preliminary injunctive relief and that, on balance, the equities tip decidedly in their favor.


 In the present case, it is undisputed that, prior to filing her Complaint, plaintiff had not exhausted the administrative remedies provided by the Equal Employment Opportunity Act. The issue thus presented is whether an employee asserting a claim for retaliatory discharge may commence a Title VII action and demand reinstatement before the Commission issued a "right to sue" letter.


 The procedures mandated by the Equal Employment Opportunity Act are designed to promote conflict resolution through conciliation rather than litigation. *fn1" Weise v. Syracuse University, 522 F.2d 397, 412 (2d Cir. 1975). Indeed, this Congressional objective is so significant that the courts have regarded compliance with these requirements as a jurisdictional prerequisite to the maintenance of a Title VII action. United Airlines, Inc. v. Evans, 431 U.S. 553, 555 n.4, 97 S. Ct. 1885, 1887, 52 L. Ed. 2d 571 (1977); Alexander v. Gardner-Denver Co., 415 U.S. 36, 47, 94 S. Ct. 1011, 1019, 39 L. Ed. 2d 147 (1974); International Union of Electrical Radio & Machine Workers v. Robbins & Myers, Inc., 429 U.S. 229, 239-240, 97 S. Ct. 441, 448-449, 50 L. Ed. 2d 427 (1976). The courts have, however, refused to exalt form over substance and have eschewed rigid construction of Title VII's procedural mandates when strict insistence upon technical compliance would defeat the fundamental purpose of the Act, i. e., ensuring that employment discrimination is redressed. Love v. Pullman Co., 404 U.S. 522, 527, 92 S. Ct. 616, 619, 30 L. Ed. 2d 679 (1972); Silver v. Mohasco Corp., 602 F.2d 1083, 1087 (2d Cir. 1979); Weise v. Syracuse University, supra, at 412; Voutsis v. Union Carbide Corp., 452 F.2d 889, 892 (2d Cir.), cert. denied, 406 U.S. 918, 92 S. Ct. 1768, 32 L. Ed. 2d 117 (1972).

 As the defendants' brief correctly recites, some district courts have attached greater significance to Title VII's procedural requirements than to its fundamental purpose and have accepted the argument that until a right to sue letter has been issued, Title VII confers no jurisdiction to preliminarily enjoin a retaliatory termination. McGee v. Purolator Courier Corp., 430 F. Supp. 1285 (N.D.Ala.1977); Berg v. LaCrosse Cooler Co., 13 F.E.P. 783 (W.D.Wis.), app'l dism'd as moot, 548 F.2d 211 (7th Cir. 1977); Gellman v. State of Maryland, 12 F.E.P. 1804 (D.Md.1975); Collins v. Southwestern Bell Telephone Co., 376 F. Supp. 979 (E.D.Okl.1974); Troy v. Shell Oil Co., 378 F. Supp. 1042 (E.D.Mich.1974), app'l dism'd, 519 F.2d 403 (6th Cir. 1975); see also Jerome v. Viviano, 489 F.2d 965, 966 (6th Cir. 1974). These cases generally begin by recognizing that Congress specifically authorized the Commission to seek preliminary injunctive relief. 42 U.S.C. § 2000e-5(f)(2). From the absence of a parallel provision authorizing private parties to invoke F.R.Civ.P. 65, the courts then infer that Congress intended to foreclose this remedy. Berg v. LaCrosse Cooler Co., supra; Gellman v. State of Maryland, supra; Collins v. Southwestern Bell Telephone Co., supra; Troy v. Shell Oil Co., supra. The opinions also emphasize that a contrary holding would emasculate the conciliation requirements of Title VII (see, e.g., Jerome v. Viviano, supra ) and transcend established principles requiring exhaustion of administrative remedies. Troy v. Shell Oil Co., supra.

 The rationale of the preceding cases has not, however, been uniformly adopted, and other courts have accepted jurisdiction over actions seeking preliminary reinstatement even though a "right to sue" letter had not been issued. Drew v. Liberty Mutual Insurance Co., 480 F.2d 69 (5th Cir.), cert. denied, 417 U.S. 935, 94 S. Ct. 2650, 41 L. Ed. 2d 239 (1974) is perhaps the leading case in this line of authority. There, the court recognized that compliance with Title VII's conciliation procedures might be unrealistic in some retaliatory discharge cases, *fn2" and concluded that since a private litigant could seek preliminary injunctive relief prior to 1972 when this remedy was extended to the Equal Employment Opportunity Commission, a fortiori, Congress anticipated that private plaintiffs would continue to seek preliminary relief under F.R.Civ.P. 65. Id. at 72-74. Other courts have since reached the same conclusion, refusing to frustrate the fundamental purpose of Title VII through strict adherence to the Act's procedural formalities provided that plaintiff can demonstrate irreparable harm and probable success in ultimately proving the retaliatory discharge claim. McNail v. Amalgamated Meat Cutters and Butcher Workmen, 549 F.2d 538, 542 n.10 (8th Cir. 1977); Berg v. Richmond Unified School District, 528 F.2d 1208 (9th Cir.) vacated and remanded on other grounds, 434 U.S. 158, 98 S. Ct. 623, 54 L. Ed. 2d 375 (1977); Eldredge v. Carpenters Local 46, 440 F. Supp. 506, 516 (N.D.Cal.1977). *fn3"


 Congress enacted Title VII to assure equality of employment opportunities by eliminating discrimination on the basis of race, color, sex, national origin or religious conviction. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800, 93 S. Ct. 1817, 1823, 36 L. Ed. 2d 668 (1973); Griggs v. Duke Power Co., 401 U.S. 424, 429-431, 91 S. Ct. 849, 852-853, 28 L. Ed. 2d 158 (1971). Voluntary compliance and cooperation were seen as the preferred means of achieving this goal. Alexander v. Gardner-Denver Co., 415 U.S. 36, 44, 94 S. Ct. 1011, 1017, 39 L. Ed. 2d 147 (1974). The exhaustion requirement has thus been imposed to ensure that discrimination will be eliminated in the manner envisioned by Congress. Nevertheless, the national interest in eliminating discrimination will, at times, justify departure from strict insistence upon voluntary compliance.

 As originally enacted, Title VII created the Equal Employment Opportunity Commission and established procedures whereby existing state and local equal employment agencies could be utilized to settle disputes through conference and conciliation. Congress thus mandated resort to these procedures before a party was permitted to commence judicial proceedings to enforce his rights. The EEOC was not, however, vested with standing to seek judicial review in its own right.

 The Act was then amended in 1972 to, among other things, provide the Commission with additional investigative authority and vest it with standing to institute civil actions against employers or unions once the usual conciliatory procedures had been exhausted. Because the 1972 amendments specifically authorized the EEOC to seek preliminary injunctive relief before the conciliation process has been completed, some courts have concluded that Congress necessarily meant to bar private litigants from seeking interim equitable relief. Berg v. LaCrosse Cooler Co., supra; Gellman v. State of Maryland, supra; Collins v. Southwestern Bell Telephone Co., supra; Troy v. Shell Oil Co., supra. Interestingly enough, no specific reference to the legislative history contemplates such an interpretation. Furthermore, in view of the fact that the 91st Congress was attempting to catalogue the EEOC's newly created authority to pursue judicial enforcement, it is hardly surprising that it specifically authorized resort to preliminary injunctive relief a remedy which had always been available to private litigants. It is therefore difficult to appreciate how a congressional effort to define the scope of the Commission's newly enacted powers could fairly be construed as an implied repeal of remedies which had theretofore been available to private litigants, particularly since repeals by implication are not favored and will not be assumed absent a clear manifestation of legislative intent. Posadas v. National City Bank, 296 U.S. 497, 503, 56 S. Ct. 349, 352, 80 L. Ed. 351 (1936).

 Another troublesome aspect of cases requiring exhaustion by a Title VII plaintiff seeking preliminary injunctive relief in a retaliatory discharge case is the fact that by imposing this requirement, the Court may be encouraging employers to profit from their unlawful action by using the discharge as an "example" to intimidate other employees who might press similar claims or assist the EEOC in its investigation. Likewise, strict reliance upon Commission enforcement will permit employers to exploit the agency's backlog in furtherance of their illegal ends. Thus, in certain circumstances, there are sound policy ...

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