Drew v. Liberty Mut. Ins. Co.

Drew v. Liberty Mut. Ins. Co.

Opinion

 [*70]  TUTTLE, Circuit Judge:

This is an appeal by Sandra Drew, a white female ¹ employee of Liberty Mutual Insurance Company seeking a preliminary injunction to prevent her employer from discharging her for what she alleged to be the filing of a complaint of discrimination on account of sex by her employer.

The complaint which was filed on April 19, 1972, alleged in effect: (a) That Liberty Mutual, Drew's employer discriminated against female employees in the terms and conditions of employment  [*71]  in violation of Title VII of the Civil Rights Act of 1964, (b) That on April 6, 1972, she had filed a charge of discrimination with [**2]  the Equal Employment Opportunity Commission, outlining Liberty Mutual's violations of Title VII, (c) That on April 7, 1972, the day after the filing of the charge, she had been fired, and (d) That her discharge was in retaliation for having filed her charge with the Commission and for opposing practices prohibited by Title VII. She alleged that this violated subsection 704(a) of Title VII. ² 

 [**3]  Ms. Drew's complaint sought an order temporarily reinstating her to the position she had held, awarding pay for the period she had been unemployed, prohibiting future reprisal. It sought to obtain temporary relief to preserve the status quo pending the Commission's administrative disposition of her charges.

On May 2, Liberty Mutual moved to dismiss the complaint, primarily on the grounds that it failed to state a claim and, secondarily, on grounds that an indispensable party, the Commission, had not been joined. The trial court held a hearing on the motion to dismiss on May 4, and, according to the transcript of the proceedings, expressed a strong doubt as to the right of the individual employee to maintain such an action in light of the amendment to Title VII made effective in 1972, which amendment, for the first time, provided that in exceptional circumstances, following the filing of a complaint, the Commission "may bring an action for appropriate temporary or preliminary relief pending final disposition of such charge."

Nevertheless the court did not dismiss the complaint but allowed the plaintiff's counsel additional time to file an amended complaint. One amendment was filed [**4]  May 10, 1972, alleging a conspiracy in violation of one of the Civil War Civil Rights Acts, 42 U.S.C. § 1985(3), a ground for relief that has now been abandoned. A further amendment was filed May 23, 1972, which alleged that the Commission had, at Drew's request, issued a "Notice of Right to Sue Within 90 Days" on May 18, 1972.

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