PERCY v. BRENNAN Cite as
PERCY v. BRENNAN Cite as 384 F.Supp, 800 (11¥74) 805 ted to the Office of Federal Contract specified that "The number of Trainees Compliance for approval and, if ap- the program shall provide for within the proved, is incorporated by reference into first year shall be set at 800 maximum." Part I of the Federal Equal Employment (Plan, Article IV, of § 2) Goals were Opportunity Bid Conditions (Federal established on a craft-to-craft basis, and Bid Conditions) used for all non-exempt qualified graduates of the program were federally-assisted construction projects to be recommended to the appropriate in the geographical area of the home- union "for consideration for membertown plan. ship." (Plan, Article II, § 2). For any trades not participating in the hometown plan, mandatory affirmative action requirements are set forth in Part II of the Federal Bid Conditions. Responsibility for compliance with these requirements is imposed directly on the individual contractor, rather than on the non-participating trade as a whole. Part IV of the Federal Bid Conditions provides that the failure of a contractor to make good faith efforts to meet his fair share obligations under a hometown plan can result in his being placed under Part II of the conditions, as well as possible imposition of the sanctions authorized by Section 209 of Executive Order No. 11246. The federally approved hometown plan in New York City, which is challenged here, is the New York Plan. It was submitted to the federal government for approval in 1970 by the Board of Urban Affairs, a body comprised of labor and management groups. The New York Plan became effective after approval respectively by the Mayor (Executive Order # 31), the Governor (Executive Order # 43) and, in August 1971, by the Office of Federal Contract Compliance. The Plan has been extended from time to time and is presently scheduled to expire at the end of December, 1974. The New York Plan (Amended Complaint, Exhibit A) (Plan) originally The Plan expired by its terms on July 1, 1972, but, as indicated already, it has been extended from time to time. The extended plan differs from the original in providing for the training of 1,000 rather than 800 minority workers.2 B. MOTIONS TO DISMISS The grounds of the motions to dismiss include: (1) the federal defendants' claim that the plaintiffs have failed to exhaust federal administrative remedies; (2) the state and private defendants' claim that the plaintiffs have failed to exhaust federal, state and city administrative remedies; (3) the federal defendants' assertion that the individual plaintiffs lack standing; ( 4) the private defendants' claim that Fight Back and NAACP lack standing; (5) the state defendants' claim that the State Department of Labor is immune from suit; and ( 6) their assertion that the complaint fails to state a cause of action against the Governor and the Industrial Commissioner.3 1. Exhaustion of Federal Administrative Remedies Under 28 U.S.C. § 1331. [1] The federal defendants move to dismiss for failure by the plaintiffs to submit their complaint to the Equal Employment Opportunity Commission and the Director of the Office of Federal 2. New York City originally was a participant in the New York Plan, but withdrew from the Plan in January, 1973. Thereafter, the City promulgated its own rules and regula· tions, effective July 20, 1973. These rules and regulations, together with the Mayor's Executive Orders No. 20 of July 15, 1970, and No. 71 of April 2, 1968 constitute the "Mayor's Plan," which imposes an obligation on public contractors, individually rather than by trade, to make among other requirements a good faith effort to employ one minority trainee per four journeymen. 3. While the motions to dismiss, of course, address themselves to the entire complaint, those aspects which we here decide relate to the New York Plan. As already noted, we deal later in the text with those arguments and motions which concern the Brennen Memorandum and the State letter.
806 384 FEDERAL SUPPLEMENT Contract Compliance. Their motion is denied because these administrative procedures cannot afford plaintiffs the relief they request. [2] Although Congress established an Equal Employment Opportunity Commission to hear cases involving employment discrimination, the jurisdiction of the Commission is limited to complaints which allege "that an employEk, employment agency, labor organizati9n or joint labor-management committee ~ontrolling apprenticeship or other train:ing or re- . training, including on-the-jol) training programs, has engaged in an unlawful employment practice." 42 U.S.C. § 2000e-4. Sections 2000e-2 and 2000e-3, which define "unlawful employment practices," do not include the promulgation of an unconstitutional affirmative action plan.4 i The cases cited by the federal defendants do not support their claim, for while the court in Hadnott v. J.,aird, 149 U.S.App.D.C. 358, 463 F.2d: 304, 305 ( 1972) . dismissed the complai~t for the plaintiffs' failure to appear fir st before the Equal Employment Opportunity Commission, the claim there essentially alleged that individual employers were failing to fulfill their contractual commitment to non-discrimination.. Similarly, in Freeman v. Shultz, 153 U.S.App. D.C. 16, 468 F.2d 120 (1972); plaintiff sought to enjoin the award of contracts to employers who had discriniinated on the basis of race. Yet here,' as plaintiffs note, the complaint is not one under Title VII ; plaintiffs here are not asking that the sanctions of Executive Order No. 11246 be imposed u,pon third parties who fail to fulfill contract obligations but that the federal defendants themselves be enjoined. ·· (Plaintiffs' Memorandum at p. 25). And in a case similar to the one here, where contractors challenged the constitutionality of an "imposed plan" (the Philadelphia Plan) the district court stated, "It is apparent that the legal issue that the plaintiffs here presented is fit for judicial resolution." No indication was made of a previous determination by the Equal Employment Opportunity Commission, which suggests that no such appearance was found to be required. Contractors Ass'n of Eastern Pa. v. Sec'y of Labor, 311 F.Supp. 1002, 1007 (E.D.Pa.1970), aff'd, 442 F.2d 159 (3d Cir.), cert. denied, 404 U.S. ·854, 92 S.Ct. 98, 30 L.Ed.2d 95 (1971). [3] Neither can plaintiffs seek relief from the Director of the Office of Federal Contract Compliance.5 Regulations promulgated by the Office give the Director power to ensure compliance with Executive Order No. 11246, · but however broad the scope of those regulations, a complainant may only challenge the alleged discrimination of a "prime contractor or subcontractor", ( 41 C.F .R. § 1.23(a)), not the unconstitutionality of the contract's equal employment opportunity clause itself. 2. Exhaustion of Federal, Administrative Remedies Under 4~ · U.S.C. § 1981. [ 4, 5] The state defendants also assert that plaintiffs have adequate remedies under federal statutes. As noted above, Title VII of the Civil Rights Act of 1964, does not prohibit discriminatory acts by government officials except where the government is the employer. Nor does it proscribe the ac- 4. Nor does the legislative history of Title VII of the Civil Rights Act of 1964 contain any indication that Congress envisioned the jurisdiction of the Commission to· encompass such a complaint despite the wording of Sections 2000e-2 and 20008-3. See ~ U.S.Code Cong. & Admin.News, 1566 et~- (1964). 5. The Office has promulgated regulations intended "to achieve the aims of Parts I and II and IV of Executive Orde?" 11246," (4 C. F.R. § 60-1.1), which empower. the Director to review federal contracts "to determine if the prime contractor or subcontractor maintains indiscriminatory hiring alld employment practiees and is taking affirmative action to ensure that applicants are employed and that employees are placed, trained, upgraded, promoted, and otherwise treated without regard to race, color, religion, sex or national origin." 41 C.F.R. § 61-1.20(a).
