REVISED United States Court of Appeals,
Fifth Circuit.
No. 96-20042.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee,
v.
HEARST CORPORATION, Doing Business as The Houston Chronicle Publishing Company, Defendant-Appellant.
Jan. 22, 1997.
Appeal from the United States District Court for the Southern District of Texas.
Before REYNALDO G. GARZA, JOLLY and DeMOSS, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
This appeal arises from an administrative subpoena
enforcement proceeding. The Hearst Corporation, Houston Chronicle
Division ("Hearst"), challenges the authority of the Equal
Employment Opportunity Commission ("EEOC") to enforce two
administrative subpoenas because the charging parties have
commenced litigation of the underlying claims. The EEOC essentially maintains that once a valid charge has been filed, its
authority to investigate the employer continues indefinitely, and
never formally terminates. Having considered the arguments of the
parties, and the structure and purpose of the investigative
authority created by Title VII, we conclude that the EEOC may not
continue an administrative investigation based upon an individual's
charge once the charging party has been issued a right to sue
letter and has initiated litigation based upon that charge.
1 I
On December 13, 1994, Shelley Lamb and Joyce Waddell filed
separate charges with the EEOC claiming that since August 1994,
they had been subjected to continuing sexual harassment by John
Laird, a Vice-President of Sales and Marketing for the Houston
Chronicle, a newspaper division of the Hearst Corporation.1 Lamb
and Waddell provided the EEOC with affidavits that set forth the
initial incidents of harassment, which allegedly occurred during a
company meeting in Galveston, Texas, and subsequent incidents at
the Chronicle's offices and in other locations. The affidavits
also identified individuals who had told Lamb and Waddell about
Laird's alleged harassment of other women, or about the Chronicle's
treatment of Lamb's and Waddell's claims. Waddell's affidavit
stated that a personnel department employee informed her that Anita
Sparks, the Display Advertising Manager, had also once complained
about Laird.
Based upon these affidavits, on February 23, 1995, the EEOC
sent Hearst a written request seeking the personnel files of Lamb,
Waddell and Laird, copies of any internal investigation documents,
a list of employees in the Advertising Department, and permission
to conduct an on-site investigation and to review certain other
records. On March 21, Hearst provided the three personnel files,
but refused all other requests, asserting that no additional
information was relevant to Lamb's and Waddell's specific charges.
1 The Hearst Corporation owns and operates the Houston Chronicle, a daily newspaper, as a separate division.
2 On April 14, the EEOC requested additional interviews, including an
interview of Sparks. Following conversations with Hearst's
attorney, the EEOC issued two subpoenas, dated April 24 and April
27, demanding the previously requested documents and information
and the testimony of Anita Sparks. Hearst petitioned to revoke the
subpoenas.
Sometime in July, Lamb and Waddell, who had already filed tort
claims against Laird in Texas state court, formally requested right
to sue letters from the EEOC. The EEOC issued right to sue letters
to Lamb and Waddell on July 26, 225 days after the original charges
had been filed. The issuance of these letters permitted Lamb and
Waddell to amend their state court complaint to add sexual
harassment claims under the Texas Commission on Human Rights Act,
Tex.Lab.Code Ann. §§ 21.001-.306 (Vernon 1995), and to join the
Hearst Corporation as a defendant. Hearst removed the case to
federal court, but the case was remanded because Lamb and Waddell
had not raised claims specifically under Title VII in their state
court proceeding, but instead had raised claims under the Texas
counterpart to Title VII.
On July 28, two days after issuing the right to sue letters,
the EEOC denied Hearst's petition to revoke the subpoenas. On
August 22, Hearst informed the EEOC that it would not comply with
the subpoenas.
On November 20, the EEOC filed the present action in federal
district court, seeking enforcement of its administrative
subpoenas. Hearst argued in response that the EEOC could not
3 continue to investigate the charges, and, alternatively, that the
EEOC was seeking information that was not relevant to the original
charges. The district court disagreed and entered its order
enforcing the subpoenas on January 9, 1996. This appeal followed.
II
Hearst challenges the EEOC's authority to enforce the
subpoenas issued under Lamb's and Waddell's original charges on two
alternate grounds.
First, Hearst argues that because Lamb and Waddell are now
time-barred from filing suit under Title VII, the EEOC is also
time-barred. In support of this contention, Hearst relies upon
EEOC v. C & D Sportswear, 398 F.Supp. 300 (M.D.Ga.1975), which held
that the EEOC could not maintain a Title VII action six years after
a charge was filed and more than two years after a right to sue
notice was issued.
The EEOC responds that no statute of limitations applies to
the EEOC's right to bring a Title VII action where the charging
party has not done so, citing EEOC v. Occidental Life Ins. Co., 432
U.S. 355, 97 S.Ct. 2447, 53 L.Ed.2d 402 (1977). The EEOC also
insists that this court need not reach the question whether the
EEOC may file suit on the basis of Lamb's and Waddell's original
charges. A subpoena enforcement proceeding, the EEOC argues, is
not the proper time for considering the "merits" of any potential
suit, and therefore this court need not address Hearst's
contentions at this stage. As support, the EEOC cites EEOC v.
Children's Hosp. Medical Center, 719 F.2d 1426 (9th Cir.1983) (en
4 banc) (holding that the question whether a prior consent decree
would preclude later suit by the EEOC was irrelevant at subpoena
enforcement stage), and EEOC v. Roadway Express, 750 F.2d 40 (6th
Cir.1984) (finding that "merits" of case could not properly be
considered at subpoena enforcement hearing).
Second, Hearst argues that the subpoenas may not be enforced
because they seek information not relevant to the charges under
which they were issued. Hearst argues that the EEOC is simply
engaged in a "fishing expedition."
III
Unlike some other agencies, the EEOC does not possess plenary
authority to demand information that it considers relevant to its
area of jurisdiction. The EEOC's authority to investigate in Title
VII cases is triggered only by the filing of a formal charge,
either by or on behalf of an aggrieved individual, or by a
Commissioner. See 42 U.S.C. § 2000e-5(b) and § 2000e-6(e). The
Supreme Court held in EEOC v. Shell Oil Co. that the existence of
a valid charge is a "jurisdictional prerequisite to judicial
enforcement of a subpoena issued by the EEOC." 466 U.S. 54, 65,
104 S.Ct. 1621, 1629, 80 L.Ed.2d 41 (1984). Although we may agree
with the EEOC that a subpoena enforcement hearing is not the right
place to examine the "merits" of a case, we are obligated to
consider whether a charge upon which formal litigation has
commenced can support a continuing administrative investigation.
We first address Hearst's argument that the EEOC may no longer
investigate based on Lamb's and Waddell's charges because it may no
5 longer sue upon those charges; if the EEOC cannot file suit based
upon the charges, Hearst insists, the agency has no need under the
statute for the information sought in the subpoenas. In analyzing
this argument, we must examine the structure of Title VII to
determine whether it contains any temporal limitations on the
EEOC's authority to investigate. We begin with the text of the
statute.
A
Under Title VII, 42 U.S.C. § 2000e et seq., action by the EEOC
is triggered by the filing of a charge of discrimination. A charge
may be filed by an individual or by a Commissioner of the EEOC, and
must specify the nature of the claimed illegal action. Charges may
allege either individual cases or a "pattern or practice" of
illegal discrimination. Once a charge is filed, the EEOC is
empowered to investigate the charge, to mediate between the parties
through informal methods of conciliation, and, if need be, to file
a civil action on behalf of the aggrieved individual.
When the EEOC was originally established by Congress in the
Civil Rights Act of 1964, it was not permitted to file civil suits;
the EEOC's role was limited to that of an informal conciliator. 78
Stat. 259. Under the original version, the EEOC had a mere 30 days
to investigate a charge and to attempt informal conciliation if
reasonable cause was found. After the period expired, however, the
EEOC was required to notify aggrieved individuals of the failure of
conciliation. This notice commenced a 30 day period of limitations
on civil actions by private individuals. 42 U.S.C. § 2000e-5(e)
6 (1970). It is apparent that Congress generally expected the EEOC
to complete its administration of a charge within 30 days: the
original version allowed the EEOC to extend its period of exclusive
jurisdiction for as many as 30 additional days, and also permitted
the EEOC to request a brief stay of any later civil proceeding, if
necessary to complete its efforts. Id.
The 30-day periods were a definite failure. The legislative
history of the 1972 Amendments to Title VII is replete with
references to the EEOC's staggering backlog of cases. See, e.g.,
H.R.Rep. No. 92-238, 54-55 (1971); S.Rep. No. 92-415, 23 (1971).
Most members of Congress also agreed that the EEOC needed more
substantial enforcement powers. Yet legislators disagreed whether
the EEOC should be permitted to adjudicate claims and issue
cease-and-desist orders. Those legislators who were wary of
investing the EEOC with too much enforcement authority favored an
enforcement approach through the courts. After extensive debate,
Congress approved amendments adopting enforcement through the
courts, and established significantly longer periods for EEOC
administration and conciliation of charges. Equal Employment
Opportunity Act of 1972, 86 Stat. 103 (amending Civil Rights Act of
1964).
Considering the previous structure and Congressional hesitance
about establishing broad enforcement authority, one might expect to
see some definite restrictions, including time limitations on the
EEOC in relation to its handling of individual charges. Indeed,
this appears to be exactly what the amended version establishes,
7 under a straightforward reading of the text. Section 706 of the
Act, as amended, creates a complex timetable for the administration
of individual charges.2
The process begins with the filing of the charge. Under
subsection (b), the EEOC must notify the respondent employer of the
charge within 10 days after it is filed. The EEOC is then required
to investigate in order to reach a determination of reasonable
cause or no reasonable cause. The EEOC is required to reach a
cause determination "as promptly as possible and, so far as
practicable, not later than one hundred and twenty days from the
filing of the charge." 42 U.S.C. § 2000e-5(b) (emphasis added).
If the EEOC finds no reasonable cause to believe a violation has
occurred, it shall dismiss the charge. Id. If reasonable cause is
found, the preferred method of resolution remains informal
conciliation. To that end, the EEOC is not permitted to file a
civil action until at least thirty days have passed, and then only
if conciliation efforts have not been successful. 42 U.S.C. §
2000e-5(f).
In this same section providing for suit by the EEOC, Congress
also established a 180-day outer limit on the EEOC's exclusive
jurisdiction by thereafter allowing private parties to file suit.
Subsection (f) of § 706, § 2000e-5(f), next states that
2 Two different schedules are established. A longer schedule applies if a state or local law also prohibits the conduct or practice in question, and the EEOC has established many deferral and worksharing agreements with state and local agencies. 42 U.S.C. § 2000e-5(c)-(e). This alternate schedule is not implicated in this appeal, and references to it will be omitted.
8 If a charge filed with the Commission ... 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 or (B) if such charge was filed by a member of the Commission, by any person whom the charge alleges was aggrieved by the alleged unlawful employment practice.
42 U.S.C. § 2000e-5(f) (emphasis added). This rather lengthy
sentence establishes a temporal limitation—180 days—that is
critical to the statutory scheme, and that we must examine
carefully.
At the beginning of this same subsection, the statute is clear
that in the first 180 days after the charge is filed, only the EEOC
is permitted to sue (although not until at least 30 days have
passed). Next, the above-quoted sentence unambiguously establishes
the right of private parties to sue after 180 days have passed.
What is unclear is the effect this provision has upon the EEOC's
investigative and enforcement authority. That is, does the quoted
sentence merely command the EEOC to notify the charging party of
some change in the posture of the charge as it relates to her, or
does the 180-day mark also limit the Commission's authority to
proceed by indicating that the time for proceedings by the
Commission has passed?
In examining this language, we first observe that the giving
of notice to the private parties is not a discretionary function:
the EEOC "shall" give the notice specified when the period expires.
Yet despite the unambiguous meaning of the word "shall," the courts
9 have held that the EEOC is not required to issue after 180 days the
notice that begins the 90-day period within which the private party
may sue, "considering the insurmountable workload difficulties of
the EEOC which prevent resolution of claims in an expeditious
manner." Zambuto v. American Tel. & Tel. Co., 544 F.2d 1333, 1334
n. 5 (5th Cir.1977). See also Forbes v. Reno, 893 F.Supp. 476, 482
(W.D.Pa.1995), affirmed, 91 F.3d 123 (3d Cir.1996) (same).
Even in Zambuto, though, we criticized the EEOC's
then-practice of sending letters that notified charging parties
that they could choose when to receive a second letter that would
begin the 90-day limitations period. The current practice of the
EEOC, however, is not substantially different. The EEOC issues
"right-to-sue" notices only when it actually reaches a
determination on cause, or when an aggrieved party requests the
notice after 180 days have passed. 29 C.F.R. § 1601.28. This
practice continues to allow aggrieved parties to select when they
would like the 90-day limitations period to begin, and is contrary
to the plain terms of the statute.3 We note that our permissive
decision in Zambuto, excusing a governmental agency's
non-compliance with the explicit terms of the statute, was based
upon the EEOC's status as a "fledgling" agency facing a substantial
workload. Nearly two decades later, the EEOC should be
sufficiently organized that we may expect it to follow the clear
instructions of Congress.
3 Lamb and Waddell, in fact, requested and were issued right to sue notices some 225 days after they filed their original charges.
10 Our second observation concerns the nature of the notice that
the EEOC must send. The notice required is notice that either (1)
the charge has been dismissed, or (2) that 180 days have passed
without a successful conciliation. The statute does not require
that the notice specifically advise the charging party that the
statutory 90-day period during which she has the right to sue has
begun to run, although such a warning undoubtedly is permitted.
This point is important, however, because the critical
question is whether the clause beginning with "and within ninety
days" creates a further right to sue in private parties, which
coexists along with the Commission's right to sue—or whether the
clause terminates by implication the EEOC's right to sue at this
point in the enforcement scheme by shifting enforcement authority
to the charging party. Again, the relevant statutory language
reads:
[after 180 days] the Commission ... shall so notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought ... (A) by [any charging parties] or (B) by [persons aggrieved by a practice challenged in a Commissioner's charge].
At this point, the EEOC has enjoyed an exclusive right to sue for
as many as 150 days (180 days less the first 30 days during which
the EEOC is limited to conference and conciliation), and at least
60 days if the EEOC timely completed its investigation.
The question, more clearly stated, is which of the following
readings of the statute correctly states Congress' intent?
1. 180 days pass, so notice mandatorily issues, and now (A) the charging party or (B) the aggrieved party on whose behalf the charge was filed also has the right to sue, along with the EEOC, or
11 2. 180 days pass, so notice mandatorily issues, the EEOC's right to sue terminates, and now enforcement lies with the persons identified in categories (A) and (B) only.
If the text read that the EEOC "shall notify the person aggrieved
that within ninety days [he may sue]" our task would be simple. In
that case, the clause would describe the content of the notice, and
the purpose of the notice would be to inform the charging party
that they could now file suit if displeased with the EEOC's
progress. In that case, providing the notice would simply be part
of the EEOC's administrative duties.
But the clause beginning with "and within ninety days" does
not describe the content of the notice. After 180 days, the EEOC
is required to issue formal, written notice that it has neither
filed suit nor successfully conciliated the charge—both facts of
which the charging party should already be aware. Given that the
notice serves little purpose as notice, we believe that the purpose
of the notice at the end of the 180-day period primarily must be to
signify the end of agency action with respect to the charge.
This conclusion is strengthened by the statute's requirement
that the notice at issue also be provided if the charge is
dismissed: "If a charge filed with the Commission ... is dismissed
by the Commission, or if within one hundred and eighty days ..."
42 U.S.C. § 2000e-5(f). The dismissal of a charge must surely
terminate all agency action upon it, strongly suggesting that this
section identifies the point at which EEOC processing ceases.
We believe, therefore, that this clause marks the beginning of
a new statutory period, during which only the persons who fall into
12 categories (A) and (B) may sue on the charge. We concede that
these interpretive questions are difficult, but to read the "and
within ninety days" clause to serve only as a notice to the
aggrieved parties would leave the EEOC's right to sue untethered to
any statute of limitations. We should not accept lightly that a
Congress hesitant about the new enforcement powers it was
establishing intended those powers to be without any end in time.
The statute clearly reflects that Congress expected the EEOC
to complete investigations within 120 days. Leaving an additional
60 days for the EEOC to determine whether suit should be filed
gives the EEOC a reasonable schedule within which to work. Such
time constraints should not hinder the EEOC unreasonably or
significantly in its ability to vindicate the goals of Title VII.
Indeed, the EEOC may seek to intervene in any subsequent private
civil action if "the case is of general public importance." 42
U.S.C. § 2000e-5(f). Additionally, if its investigation revealed
a wider or continuing problem, the EEOC could simply file a
Commissioner's charge and proceed with further investigation or a
civil action. 42 U.S.C. § 2000e-5(b).
If Title VII were interpreted as we believe the text demands,
we logically could conclude only that the EEOC's investigation of
a charge must also end, absent some extenuating circumstance
peculiar to the case under investigation that invokes principles of
equity, after the 180-day period passed—irrespective of whether the
charging party elected to sue. However, this view of Title VII has
been rejected by the courts. Several courts, including our court,
13 have held that the EEOC may still file suit even after the 180-day
period had passed. See, e.g., EEOC v. Louisville & Nashville R.R.,
505 F.2d 610 (5th Cir.1974), cert. denied, 423 U.S. 824, 96 S.Ct.
39, 46 L.Ed.2d 41 (1975); EEOC v. Huttig Sash & Door Co., 511 F.2d
453 (5th Cir.1975). This conclusion was accepted by the Supreme
Court in Occidental, 432 U.S. at 366, 97 S.Ct. at 2454. In
Occidental, the EEOC filed suit against the responding employer
some three years and two months after the employee's charge of
discrimination was filed. The Supreme Court found that the text of
Title VII did not contain a limitation period for filing suit that
applied to the EEOC, and further found that the legislative history
of the 1972 amendments supported the position that no limitation
applied to the EEOC's right to file suit. Id. at 361, 366, 97
S.Ct. at 2451-52, 2454. The Court concluded that the purpose of
the 180-day cutoff was not to ensure that EEOC action was promptly
concluded, but to create "an alternative enforcement procedure":
The 180-day limitation period provides only that this private right of action does not arise until 180 days after a charge has been filed. Nothing in § 706(f)(1) indicates that EEOC enforcement powers cease if the complainant decides to leave the case in the hands of the EEOC rather than to pursue a private action.
Id. at 361, 97 S.Ct. at 2452. Consequently, many cases pend for
years in "administrative limbo" with the EEOC, as information grows
stale and memories fade. At oral argument, counsel for the EEOC
maintained that there were no temporal limitations on the EEOC's
ability to investigate an employer named in a charge of
discrimination. Counsel suggested that the EEOC might not be
permitted to continue an investigation once it issued a no-cause
14 determination, but we observe that the EEOC's own regulations
permit it to reconsider a no-cause determination at any time, even
if the 90-day period for suit by the charging party has passed. 29
C.F.R. § 1601.19(b). Finality is apparently not a word in the EEOC
lexicon.
Notwithstanding that the 180-day period appears to be an
important part of the statutory design, it has been rendered
practically meaningless. Under court decisions and regulations
promulgated by the EEOC, the 180-day period provides no assurance
of prompt action by the EEOC and provides no end to intrusive
agency action for the responding employer. Nor does it limit the
period during which the charging party may sue, because the EEOC
generally issues the "right to sue" notice not when 180 days pass
but, as in this case, when the charging party requests one. The
EEOC's regulations even indicate that it may issue a "right-to-sue"
notice, without completing its investigation, before the 180 days
have passed if it so chooses. See 29 C.F.R. § 1601.28(a)(2). The
180-day limitation has become no limitation. Hearst's argument
that the EEOC may not enforce its subpoenas because it can no
longer file suit therefore fails.4
4 We note that Hearst's argument did not focus upon the 180-day period, but rather upon the 90-day period that limits the charging party's right to file suit once the notice of right to sue is received. Hearst's reliance on C & D Sportswear, 398 F.Supp. at 305, is unavailing. C & D Sportswear has been frequently criticized, and is contrary to the decision of this circuit in Huttig Sash & Door Company, 511 F.2d at 454, on which it purported to rely. It certainly cannot be accepted in the light of the subsequent holding in Occidental, 432 U.S. at 361, 97 S.Ct. at 2451-52.
15 B
Although the 180-day period does not terminate the EEOC's
authority to investigate, we think it is statutorily significant
that the "integrated, multistep enforcement procedure" established
by Title VII is divided into four distinct stages: filing and
notice of charge, investigation, conference and conciliation, and
finally, enforcement. See Occidental, 432 U.S. at 359, 97 S.Ct. at
2450-51.
As we have discussed above, once a charge is filed, the EEOC
must provide the named respondent with a copy of the charge within
10 days. 42 U.S.C. § 2000e-5(b). Again, the investigation stage,
designed to enable the EEOC to reach a determination of reasonable
cause or no reasonable cause, begins immediately after the charge
is filed, and shall be completed "as promptly as possible and, so
far as practicable, not later than one hundred and twenty days from
the filing of the charge." Id. The investigation stage is
followed, if reasonable cause is found, by a conference and
conciliation stage during which the EEOC is required to attempt to
achieve an acceptable resolution through informal persuasion. Id.
Only if those efforts are unsuccessful should a case enter the
formal enforcement stage. Congress established that the EEOC may
only file suit if it has been unable to secure a conciliation
agreement, and if at least thirty days have passed from the filing
of the charge. 42 U.S.C. § 2000e-5(f). Additionally, the private
right of action does not arise until 180 days have passed from the
filing of the charge—sixty days after the EEOC should have
16 completed its investigation. These separate stages are important
to the statute's enforcement scheme because of the different roles
that the EEOC plays in the management of discrimination charges:
administrator, investigator, mediator, and finally, enforcer.
That Title VII's enforcement structure is deliberately divided
into distinct stages is confirmed by the legislative history of the
1972 amendments, which first invested the EEOC with its broad
enforcement authority. A Senate Conference Report indicates that
the amendments retained the previous structure that "enable[d] the
EEOC to process a charge of employment discrimination through the
investigation and conciliation stages," but additionally authorized
the EEOC to go further and file a civil action "if it has been
unable to eliminate an alleged unlawful employment practice by
informal methods ..." S.Conf.Rep., Cong.Rec. March 6, 1972, p.
1845. In Occidental, the Supreme Court also describes the
enforcement design as a "multistage scheme" defined by "a
sequential series of steps beginning with the filing of a charge
with the EEOC." 432 U.S. at 372, 97 S.Ct. at 2457.
Congress granted the EEOC broad investigatory authority so
that the agency promptly and effectively could determine whether
Title VII had been violated, and to assist the agency in its
efforts to resolve disputes without formal litigation. These
purposes are no longer served once formal litigation is commenced.
Instead, if the EEOC has any further interest it may intervene and
pursue discovery through the courts; or if its interest extends
beyond the private party charge upon which it is acting, it may
17 file a Commissioner's charge. See 29 C.F.R. § 1601.11 (authorizing
members of Commission to file charges).
The Supreme Court in Occidental—in which no private party had
filed suit—did not address these concerns; the employer challenged
only the length of the enforcement stage, not whether the
enforcement action terminated the investigative stage. 432 U.S. at
357, 97 S.Ct. at 2450 ("[t]he sole question presented by this case
is what time limitation, if any, is imposed on the EEOC's power to
bring such a suit"). In Occidental, both the investigation and the
conference and conciliation stages had passed. Upon receiving
notice that conciliation efforts had failed, the charging party
requested that her case be referred to the EEOC's General Counsel
for formal enforcement action. 432 U.S. at 358, 97 S.Ct. at 2450.
The Court noted that the complainant elected "to leave the case in
the hands of the EEOC" rather than file suit herself. Id. at 361,
97 S.Ct. at 2451-52. The Court concluded that the complainant
properly could choose to leave the litigating to the agency: "the
complainant may either file a private action within 90 days after
EEOC notification or continue to leave the ultimate resolution of
his charge to the efforts of the EEOC." Id.
The case before us is not controlled by Occidental. We do not
decide what independent enforcement authority remains with the EEOC
now that the private parties have initiated their own enforcement
proceedings. We conclude only that the time for investigation has
passed. Shelley Lamb and Joyce Waddell have moved their claims
into the litigation stage. They not only affirmatively requested
18 their right to sue notices, but instituted a civil action against
Hearst based on the exact acts alleged in their charges and
accompanying affidavits. The "alternative enforcement procedure"
identified by the Court in Occidental has begun, and the time for
investigation based upon Lamb's and Waddell's charges has passed.
Our conclusion that the EEOC may not continue to investigate
a charge once formal litigation by the charging parties has
commenced makes it unnecessary for us to consider Hearst's
contention that the subpoenas seek information not relevant to the
charges under which they were issued.
IV
Accordingly, we hold that, in a case where the charging party
has requested and received a right to sue notice and is engaged in
a civil action that is based upon the conduct alleged in the charge
filed with the EEOC, that charge no longer provides a basis for
EEOC investigation. Nothing in this opinion should be construed as
holding that the EEOC may not seek the same information that it
seeks in these subpoenas, so long as it is on the basis of a
different individual charge or a Commissioner charge.
The judgment of the district court is hereby REVERSED, and
this action is REMANDED with direction to enter an order denying
the application to enforce.
REVERSED and REMANDED.