Adams v. Proctor & Gamble Manufacturing Co.

PER CURIAM:

This case, concerning the preclusive effect upon charging parties of a consent decree in an action brought against an employer by the EEOC, was first heard by a panel of this court. A majority of the panel held there was no preclusive effect, while Senior Judge Haynsworth dissented. Adams v. The Proctor & Gamble Mfg. Co., 678 F.2d 1190 (4th Cir.1982). Thereafter, an order was entered granting rehearing en banc.

The question turns upon a proper interpretation of § 706(f)(1) of Title VII, 42 U.S.C.A. § 2000e-5(f)(l), which, insofar as pertinent, provides:

(f)(1) If within thirty days after a charge is filed with the Commission ..., the Commission has been unable to secure from the respondent a conciliation agreement acceptable to the Commission, the Commission may bring a civil action against any respondent not a government, governmental agency, or political subdivision named in the charge .... The person or persons aggrieved shall have the right to intervene in a civil action brought by the Commission .... If a charge filed with the Commission pursuant to subsection (b) of this section is dismissed by the Commission, or if within one hundred and eighty days from the filing of such charge ..., the Commission has not filed a civil action under this section ..., or the Commission has not entered into a conciliation agreement to which the person aggrieved is a party, the Commission ... shall so notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge (A) by the person claiming to be aggrieved ....

In 1976 the EEOC brought an action against Proctor & Gamble alleging employment discrimination. Some two dozen Proctor & Gamble employees had filed charges with the EEOC, but none of them chose to intervene in the EEOC action, though each had an unqualified right to do so under § 706(f)(1). Negotiations between the employer and the EEOC resulted in a settlement of the action by consent decree. Thereafter, the EEOC issued right-to-sue letters to those charging parties who rejected awards under the decree. When sixteen of those Proctor & Gamble workers with right-to-sue letters sued individually, the district court granted the company’s motion to dismiss on the ground that the letters were invalid.

Substantially for the reasons set forth in Judge Hayns worth’s dissenting opinion when the case was before the panel, we hold the district court’s dismissal was appropriate. We read § 706(f)(1) in these circumstances to preclude suits by individuals who are charging parties, but who have not intervened in the pending EEOC action in their behalf, once the EEOC action has been concluded by a consent decree.

Under § 706(f)(1) right-to-sue letters may be issued by the Commission to charging parties under several different circumstances, but there is no provision for the issuance of such a letter under any circumstance after the EEOC has filed an action on behalf of the charging parties. As noted by the panel dissenter, there must be an exception if the EEOC’s action is concluded on technical grounds without a judgment on the merits. In every sense, however, this consent decree was a judgment on the merits, and it awarded benefits which were then available to the charging parties.

The statutory scheme is fair and reasonable. A charging party has an unqualified right to intervene in the EEOC’s action. If he wishes to participate in settlement negotiations or to have the right to reject any settlement agreement negotiated by the EEOC, he may fully protect himself by intervening. If he does not intervene, it is not unfair to him to conclude that he placed the conduct of the litigation entirely upon the EEOC and expressed a conclusive willingness to be bound by the outcome, whether or not the outcome was negotiated.

General Telephone Co. of the Northwest, Inc., v. EEOC, 446 U.S. 318, 100 S.Ct. 1698, 64 L.Ed.2d 319 (1980), is not to the contrary. In that case the employer had sought a ruling that the EEOC could not obtain broad class relief without compliance with Federal Rule of Civil Procedure 23. There were only four charging parties in that case, but there were allegations of pervasive discrimination affecting a great many persons. In those circumstances, if the EEOC were required to comply with rule 23, the efficacy of the EEOC’s § 706(f)(1) remedy would be substantially impaired. Thus, the Supreme Court observed that it was “unconvinced that it would be consistent with the remedial purpose of the statutes to bind all ‘class’ members ... by the relief obtained under an EEOC judgment or settlement against the employer.” Id. at 333, 100 S.Ct. at 1707-08.

The question before the Supreme Court in General Telephone was exclusively related to the effect of a possible judgment upon persons who were not charging parties and who had no right of intervention. The Court’s dicta must be read as referable to them and entirely inapplicable to the question of the preclusive effect of a judgment upon charging parties who had not exercised their right of intervention.

Our interpretation of § 706(f)(1) is not unprecedented. See e.g., Jones v. Bell Helicopter Co., 614 F.2d 1389 (5th Cir.1980); McClain v. Wagner Electric Corp., 550 F.2d 1115 (8th Cir.1977); Crump v. Wagner Electric Corp., 369 F.Supp. 637 (E.D.Mo.1973). Cf. Truvillion v. King’s Daughters Hospital, 614 F.2d 520 (5th Cir.1980).

There has been some expression of concern among our dissenting brothers that a charging party may not recognize any reason to intervene in an EEOC action before an undesirable consent decree has been entered, by which time the right to intervene will have been lost. We appreciate their concern, but it cannot change the plain meaning of § 706(f)(1). Moreover, one who wishes to participate in tactical decisions which may substantially affect the outcome of the litigation or in settlement negotiations has reason for early intervention. In this, as in many other situations, one who invokes administrative and judicial machinery in his behalf should have a continuing interest or participation in it. If he does not intervene and leaves it to the EEOC to do whatever seems best to the EEOC for him, he should not be heard to complain of the consequences of his own indifference.

The judgment of the district court is affirmed.

AFFIRMED.