Employment Practices Decisions Archive: 1937 - 1995, EMPLOYMENT-PRACTICES 13 EPD ¶11,370, Equal Employment Opportunity Commission, Plaintiff v. Chesapeake & Ohio Railway Co., et al., Defendants., (Oct. 01, 1976), (Oct. 1, 1976)

Equal Employment Opportunity Commission, Plaintiff v. Chesapeake & Ohio Railway Co., et al., Defendants.

United States District Court, Eastern District of Virginia, Richmond Division.Civil Action No. 75-0478-R, October 1, 1976

Title VII--Civil Rights Act of 1964

Court Actions--Relief--Back Pay--Undue Delay.

--Where the EEOC unduly delayed assertion of backpay claims without excuse and to the prejudice of the employer against which suit was brought, the back pay claims were barred, and a motion to dismiss untimely claims must be granted. The doctrine of laches, or undue delay, was applicable to bar the back pay claims in view of the EEOC’s failure to assert the claims during conciliation procedures and its raising of the claims five days before discovery cutoff where six years had been spent preparing for trial. Later back pay claims were barred by an applicable state statute of limitations. Individual claimants seeking back pay could do so by filing an EEOC charge and prosecuting their claims individually or as a class action. 42 U.S.C. Sec. 2000e .

Back references.-- ¶2140.31 , 2605.75 .

Delores Wilson, Regional Attorney, Frank J. Tuk, Associate Regional Attorney, Philadelphia Regional Litigation Center, and Eliot Norman, Assistant United States Attorney, Richmond, Virginia, for Plaintiff.

Jack W. Burtch, Jr., Francis V. Lowden, Jr., and Christine H. Perdue (Hunton, Williams, Gay & Gibson) Richmond, Virginia, for Defendant.

WARRINER, D.J.: Defendant, the Chesapeake and Ohio Railway Company, moves the Court to dismiss from this action all backpay claims sought to be raised subsequent to 23 August 1976. Defendant’s motion with accompanying brief was filed 23 September 1976.

Specifically, defendant moves the Court to dismiss backpay claims arising after 23 August 1976 on the following grounds:

a) Such claims are barred by the two year Virginia Statute of Limitations, Va. Code Ann. §8-24 (Cum. Supp. 1976);

b) Such claims are barred by the Administrative Procedures Act, 5 U.S.C. §706; and,

c) Such claims are barred by the doctrine of laches.

The undisputed facts relevant to this motion are substantially as follows: The original charge upon which this action is based was made on 25 October 1970 by one Drew, a Negro employee of defendant. Defendant had no notice of the charge.

Drew filed an amended charge 7 February 1973 subsequent to which defendant received timely notice. This was the first knowledge defendant had of the charge albeit the alleged discrimination occurred on 14 August 1970, approximately two and one half years prior to notice to defendant. The amended charge was confined to Drew’s individual claim of discrimination.

Another year and two months passed before plaintiff issued its “Determination” in this case on 9 April 1974. From this document defendant learned for the first time that the subject of the complaint concerned a collective bargaining contract which had not been in effect since 1 March 1972, a period of over two years. Only Drew’s claim of discrimination was identified in the Determination.

Plaintiff filed its complaint in this action on 22 September 1975, a period of approximately one and one half years after the Determination. Defendant was not apprised of any additional individual claims for backpay in the complaint. However, six months later on 26 March 1976, plaintiff stipulated that as of that date it had identified only two persons allegedly discriminated against on any of the bases named in the complaint.

Consequentially, defendant continued to believe that there were only two claims for backpay in this action up until 26 August 1976, only five days before discovery cutoff. On this date, at the deposition of a legal assistant for EEOC, both deponent and counsel in this case were asked by defendant if any other backpay claimants had been identified. Both refused to identify or acknowledge the existence of any additional claimants. As a matter of fact, a list of twenty such claimants had already been forwarded by plaintiff to the Court for filing. This list was filed with the Court on 27 August. The list of names was served on defendant later the same day, it having been forwarded by plaintiff on 24 August 1976. Plaintiff later deleted some names and added eight others by letters dated 1 September 1976 and 7 September 1976.

A. To grant backpay to the post 23 August 1976 claimants in this case would, under the undisputed facts, “improperly and substantially” [1] prejudice defendant.

The logic of EEOC v. American National Bank, 13 FEP 572 (E.D. Va. 1976), is compelling. Although this Court disagrees as to the applicability of the Administrative Procedures Act, the application of the doctrine of laches as to the individual claims for backpay set forth in American National Bank is unassailable.

To permit EEOC to spend six years preparing for trial and assert a half million dollar claim five days before discovery cutoff and less than two months before trial cannot, in a Court required to do justice and equity, be countenanced.

Plaintiff offers no excuse for its failure to discover the claimants during the investigatory stage which existed from 1970 to 1974. It gives no reason why the claimants’ grievances were not asserted during the conciliation stage. It offers no explanation as to why, immediately after the complaint was filed, it did not seek discovery as to the claimants and their claims. Inexplicably, it asserts, as a matter of defense, that it, EEOC, did not request “the most useful source of information,” the “most needed” documents with respect to the backpay claims, until 26 July 1976. Plaintiff’s Brief p. 9.

And then, despite plaintiff’s abject failure to efficiently pursue discovery, it seeks to shift blame to defendant by asserting that defendant has “only itself to blame” for not seeking out, identifying and, presumably, prosecuting the backpay claims against itself. Plaintiff’s Brief, p. 8.

A reading of the depositions of several of the backpay claimants convinces the Court that defendant has been substantially prejudiced by the delay in EEOC’s handling of the charge. Often incidents referred to in the depositions occurred ten or more years ago. Several of the persons referred to are dead; most are retired and in their seventies.

No public benefit will accrue to anyone from enforcing these backpay claims since defendant ceased the complained of practices more than four and one-half years ago. It makes no sense nor does it further the purposes of the Act to punish defendant for past transgressions when it is now and has been carrying out employment practices specificially approved by the Court. See, U.S. v. Chesapeake & Ohio Ry. [5 EPD ¶8090 ] 471 F.2d 582 (4th Cir. 1972). Backpay in this case would be a fine as against defendant and a windfall for the alleged claimants. This is not what the Act seeks.

B. The Court does not believe the Administrative Procedures Act is applicable to a trial de novo.

C. The claims for backpay asserted since 23 August 1976 are barred by the borrowed two year Virginia statute of limitations. Va. Code Ann. §8-24 (Cum. Supp. 1976). As to the non-charging parties the statute was tolled, at the earliest and if at all under the facts in this case, upon the issuance of the Determination on 9 April 1974. Since plaintiff admits that the 1 March 1972 labor contract is non-discriminatory, the backpay claims would necessarily antedate that date. Further, plaintiff specifically claims backpay for defendant’s alleged refusal to permit Group III employees (primarily black) to bid on Group I and Group II jobs (primarily white). Plaintiff’s Brief, p. 7. All three of these groups were abolished as of 1 March 1972 and the bidding differential was abolished. U.S. v. Chesapeake and Ohio Railway Co., [5 EPD ¶8090 ] 471 F.2d 582 (4th Cir. 1972).

The defendant has already done all which the Fourth Circuit in U.S. v. Cheasapeake and Ohio Railway Co., supra, said it should do to satisfy the Act’s concerns “... with those black employees who were hired before the Act and who, because of restrictive transfer policies, are presently unable, without forfeiting their company seniority, to move to jobs previously denied them.” 471 F.2d at 593.

D. The Court is primarily concerned, in ruling on this motion, that no legal rights of individuals who may have valid claims for backpay be foreclosed. Furtunately, under the Act if any such persons there be, presently suffering from the effects of past discrimination, the ruling herein will have no untoward adverse effect. They may file a charge with the EEOC and proceed to prosecute their claim either individually or as a class action. I am persuaded by the lethargic response of the EEOC to Mr. Drew’s charge that the interests of any present claimants will be better served if they are remitted to self-help under the Act rather than having their claims, if any, adjudicated in this action. EEOC’s performance on the Drew charge has been excruciatingly inept.

The subject raised by defendant’s motion deserves far more explication than is set out here. The Court has studied numerous cases cited by the parties in their briefs. The cases are not unanimous in their views and there is no Fourth Circuit or Supreme Court case controlling the issues. Under such circumstances, this Court, having read the pertinent authorities must decide in accordance with what it conceives to be right, within reason and the law.

The objectives of backpay awards as set forth in Albemarle Paper Co. v. Moody, [9 EPD ¶10,230 ] 422 U.S. 405, 418-419 (1975) and Franks v. Bowman Transportation Co., Inc., [11 EPD ¶10,777 ] 96 S. Ct. 1251, 1264, 44 U.S.L.W. 4366, (1976), are not served by awarding punitive backpay. Defendant, by its 1 March 1972 labor contract, has already sought to remedy the effects of past discrimination, thus awarding backpay here cannot serve as a spur toward voluntary compliance. The compensatory aspect is not present since the 1 March 1972 labor contract was specifically designed to rectify past discrimination. At this late date backpay takes on the nature of a reward rather than compensation.

Since trial preparation is in its late stages, the Court deems the parties will be benefited more by a prompt decision than by a fully explained decision.

An appropriate order shall issue.

Order

In accordance with the memorandum this day filed, and deeming it just and proper so to do, the Court GRANTS defendant, The Chesapeake and Ohio Railway Company’s, motion of 23 September 1976 to dismiss untimely backpay claims. Accordingly, the Court doth Order and Adjudge that all backpay claims sought to be raised in this action subsequent to 23 August 1976 be, and the same are hereby, Dismissed.