Emmett J. Stebbins v. Nationwide Mutual Insurance Company

Opinion PER CURIAM.

Concurring opinion filed by Circuit Judge HARRY T. EDWARDS.

PER CURIAM:

Mr. Emmett J. Stebbins appeals from an order of the district court (Smith, J.) dismissing with prejudice his complaint against the Equal Employment Opportunity Commission (“EEOC”) and the Nationwide Mutual Insurance Company (“Nationwide”). Mr. Stebbins claims on appeal that the EEOC unlawfully denied his request for disclosure under the Freedom of Information Act and that Nationwide discriminated against him in its employment practices in violation of 42 U.S.C. § 2000e et seq. (1982) and of 42 U.S.C. § 1981 (1982). We affirm the district court’s dismissal of the action against the EEOC on the ground that Mr. Stebbins failed to exhaust his administrative remedies. We reverse the district court’s dismissal of the employment discrimination claims and remand those claims for further proceedings consistent with this opinion.

I.

The present case is Mr. Stebbins’ fifth suit against Nationwide alleging employment discrimination.¹ Mr. Stebbins’ previous suits have all been unsuccessful, and in two cases circuit courts have observed that he appears to have made a profession out of suing insurance companies. Stebbins v. Nationwide Mutual Insurance Co., 528 F.2d 934, 935 n. 1 (4th Cir.1975); Stebbins v. Nationwide Mutual Insurance Co., 469 F.2d 268, 270 (4th Cir.1972). Mr. Stebbins has filed some twelve cases against various insurance companies since 1966 and is a “uniquely sophisticated litigant in Title VII matters.” 469 F.2d at 270. Although he seeks employment as a claims adjuster, Mr. Stebbins has been found to be “so lacking in elementary financial prudence, candor, stability, meaningful interest in the business world and definite career direction that no prudent insurance company could reasonably offer to employ him in a position of fiscal trust.” Stebbins v. Insurance Company of North America, 3 Empl. Prac.Dec. (CCH) ¶ 8168, at 6525, 6529 (D.D. C.1970).

On March 30, 1983, Mr. Stebbins commenced the instant litigation by filing a complaint against the EEOC and Nationwide. The complaint charges Nationwide with illegal employment discrimination against blacks and with illegal retaliation against Mr. Stebbins because of his previous suits against the company. Plaintiff claimed to have sought employment with Nationwide on April 4, 1982, August 1, 1977, June 27, 1977, and May 16, 1977. Complaint at IV(d). On appeal, plaintiff suggests in addition that he had sought employment from Nationwide “throughout the United States in general, and the Tristate Region in particular (District of Columbia, Delaware, Maryland and the Commonwealth of Virginia).” Brief and Appendix for Appellant at 3-4.

On June 15, 1983, the EEOC moved for dismissal or, in the alternative, for summary judgment, on the ground that Mr. Stebbins was required to exhaust his administrative remedies before seeking judicial review. On June 17, 1983, Nationwide moved to dismiss on four grounds including that the alleged cause of action was barred by the doctrine of res judicata and that venue was improper in the District of Columbia. To support its motion on venue, Nationwide submitted evidence that it “did not have any office in the District of Columbia where claims adjusters, underwriters, claims representatives or supervisors were employed.” Nationwide conceded, however, that it does have agents who sell insurance in the District of Columbia as independent contractors. Nationwide insisted that Mr.. Stebbins’ allegations did not concern such agents.

On July 25,1983, the district court granted both motions to dismiss with prejudice. Judge Smith’s order stated in full:

Upon consideration of the motions to dismiss filed by defendants Equal Employment Opportunity Commission and Nationwide Mutual Insurance Company, and plaintiff’s failure to oppose those motions, the Court finds that plaintiff has failed to exhaust his administrative remedies as required before bringing suit against the Equal Employment Opportunity Commission. In addition, this Court is not the proper venue for plaintiff’s claim against Nationwide Mutual Insurance Company.

On August 2, 1983, Mr. Stebbins moved to alter or amend the district court’s order, and his motion specifically noted that venue was “proper for plaintiff's claims alleged under 42 USC 1981 and D.C. Human Rights Law.” On August 24, 1983, Nationwide moved for its attorney’s fees because of “the harassing and vexatious nature of plaintiff’s repeated suits and the extreme cost ... of defending each ... action[ ] up to the United States Supreme Court.” On September 8, 1983, the district court denied Mr. Stebbins’ motion to alter or amend its previous order. On November 3, 1983, Mr. Stebbins filed his notice of appeal to this court.

II.

We affirm the district court’s dismissal of the action against the EEOC because of Mr. Stebbins’ failure to exhaust his administrative remedies. Exhaustion of such remedies is required under the Freedom of Information Act before a party can seek judicial review. Hedley v. United States, 594 F.2d 1043, 1044 (5th Cir.1979). The action against Nationwide must be remanded, however, as to each of Mr. Stebbins’ three employment discrimination claims. We' are puzzled by the district court’s action in dismissing all of Mr. Stebbins’ claims with prejudice on the ground that venue was improper. Ordinarily, a dismissal on venue grounds is presumed not to be a final adjudication on the merits.² Fed.R.Civ.P. 41(b).

We are also puzzled by the district court’s order because it does not address separately why venue is improper as to each of the three employment discrimination claims advanced by Mr. Stebbins. We recognize that venue may be improper as to the Title VII claim for reasons similar to those discussed in our prior decision in Stebbins v. State Farm Mutual Automobile Insurance Co., 413 F.2d 1100 (D.C.Cir. 1969). However, that ease concerned only a Title VII claim and here we have claims brought under 42 U.S.C. § 1981 and the D.C. Human Rights law as well. Accordingly, venue may be improper as to the Title VII claim but appropriate for the claim brought under section 1981. Alternatively, the Title VII venue provision may be controlling for the entire lawsuit pursuant to the legal principle announced in Hayes v. RCA Service Co., 546 F.Supp. 661 (D.D.C. 1982). In that event, all three of the anti-discrimination claims might have to be transferred to the proper Title VII venue.

These questions cannot be resolved without clarification by the district court of its order of dismissal. First, if the dismissal is to be with prejudice, it must be on some ground other than improper venue. As we have noted, dismissal on grounds of venue does not ordinarily represent a final adjudication on the merits. Second, if the dismissal is based on venue then the district court must consider whether venue is improper for all three employment discrimination claims, pursuant to Hayes, or whether Hayes was wrongly decided and venue is improper only for the claim under Title VII. We express no opinion on this question, since the district court has not ruled on it in the first instance and since there are unresolved factual questions which may obviate the need for us to rule on it.³ Specifically, the district court has not resolved whether the employment sought by Mr. Stebbins was available from Nationwide in the District of Columbia. This factual question must be settled before a determination can be made on whether the venue was improper for Mr. Stebbins’ Title VII claim.⁴ Until this question has been resolved, we need not consider the propriety of the Hayes doctrine which applies the venue provisions of Title VII to employment discrimination claims brought under section 1981. It remains possible that the District of Columbia is the proper venue for all of the antidiscrimination claims including the claim brought under Title VII.

In remanding, we feel obliged to caution Mr. Stebbins that we are expressing no opinion as to the merits of his claim. We are remanding solely to afford the district court an opportunity to make an initial resolution of factual and legal issues, as is its right.

The claim against Nationwide is remanded to the district court for further proceedings consistent with this opinion. The judgment in favor of the EEOC is affirmed in all respects.

It is so ordered.

1 . See, e.g., Stebbins v. Nationwide Mut. Ins. Co., 528 F.2d 934 (4th Cir.1975), cert. denied, 424 U.S. 946, 96 S.Ct. 1417, 47 L.Ed.2d 353 (1976); Stebbins v. Nationwide Mut. Ins. Co., 469 F.2d 268 (4th Cir.1972), cert. denied, 410 U.S. 939, 93 S.Ct. 1403, 35 L.Ed.2d 606 (1973); Stebbins v. State Farm Mut. Auto. Ins. Co., 413 F.2d 1100 (D.C.Cir.), cert. denied, 396 U.S. 895, 90 S.Ct. 194, 24 L.Ed.2d 173 (1969); Stebbins v. Nationwide Mut. Ins. Co., 382 F.2d 267 (4th Cir.1967), cert. denied, 390 U.S. 910, 88 S.Ct. 836, 19 L.Ed.2d 880 (1968).

2 . The dismissal with prejudice cannot be explained solely on the ground that the venue question was previously resolved in Stebbins v. State Farm, 413 F.2d 1100. This case involves allegations of more recent discriminatory actions than were at issue in the State Farm case. Accordingly, the new allegations must be examined to determine whether venue is proper in the District of Columbia in this case even though it was improper in the previous litigation.

3 . We therefore do not endorse the criticisms of Hayes expressed by Judge Edwards in his separate concurrence. Indeed, if the issue were properly before us, we would be inclined to follow the general approach of Hayes.

4 . The district court must arrive at an initial resolution of all factual issues bearing on whether the District of Columbia is "the judicial district in which [Stebbins] would have worked but for the alleged unlawful employment practice." 42 U.S.C. § 2000e-5(f)(3).