H. Kessler & Co. v. Equal Employment Opportunity Commission

53 F.R.D. 330, 1971 U.S. Dist. LEXIS 11509, 4 Empl. Prac. Dec. (CCH) 7537, 3 Fair Empl. Prac. Cas. (BNA) 956
CourtDistrict Court, N.D. Georgia
DecidedSeptember 24, 1971
DocketCiv. A. No. 14770
StatusPublished
Cited by13 cases

This text of 53 F.R.D. 330 (H. Kessler & Co. v. Equal Employment Opportunity Commission) is published on Counsel Stack Legal Research, covering District Court, N.D. Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
H. Kessler & Co. v. Equal Employment Opportunity Commission, 53 F.R.D. 330, 1971 U.S. Dist. LEXIS 11509, 4 Empl. Prac. Dec. (CCH) 7537, 3 Fair Empl. Prac. Cas. (BNA) 956 (N.D. Ga. 1971).

Opinion

MOYE, District Judge.

ORDER

On February 3, 1971, the Equal Employment Opportunity Commission [EEOC] served upon H. Kessler & Company [Kessler] a Demand for Access to Evidence pursuant to 42 U.S.C. § 2000e-9. Kessler then filed a petition in this Court, inter alia, to set aside the Demand pursuant to 42 U.S.C. § 2000e-9 (c). The EEOC has filed a cross-petition seeking enforcement of the Demand. The controversy herein began on June 10, 1970, with the filing of a complaint with the EEOC by Louise Watley in which Mrs. Watley charged Kessler with discrimination against her on the basis of her race and sex. The June 10 charge read: “I work [sic] as manager of the record department and buyer for five and one half year [sic] but I never received the salary of a buyer. White male buyer [sic] received more pay and benefits, the only reason given that he was a male. The other reason given was that if they gave me a raise that I would make more than a white women [sic] who has been employed for a number of years; and therefore they couldn’t pay me the same salary.” On the EEOC complaint form, Mrs. Watley indicated that the most recent date the discrimination took place was May 7, 1970. On October 20, 1970, Mrs. Watley submitted a second form to the EEOC which read: “I allege discrimination against Kessler’s in that a white male performing the same duty as myself, buyer and manager, received more pay and employee benefits. I complained about this and stated that I was going to file a class action charge with EEOC and subsequently I was discharged because of my sex and race (Black), and because I said that I would file a charge with EEOC. Kessler discriminates against all female employees on the basis of their race and all Blacks are discriminated against on the basis of their [sic]. This is an amendment to the original charge filed on June 10, 1970.” This charge also indicated that the most recent date the discrimination took place was May 7, 1970. The October 20 charge was further amended on October 26, 1970, by changing the third sentence to read: “Kessler discriminates against all female employees on the basis of their sex and all Blacks are discriminated against on the basis of their race (Black).” On October 22, 1970, Hubert L. Murray, an officer of the EEOC, interviewed several employees of Kessler and examined the Form EEO-1 required to be kept by the employer. Murray then requested information and records relative to the breakdown of current employees by race and sex and other information concerning the employees of Kessler. Kessler was cooperative in providing information relevant to the charge filed on June 10 but refused to supply records (other than Form EEO-1) or information not pertaining to the individual charge of discrimination filed by Mrs. Watley on June 10. The reasons for such refusal are stated by Kes-sler as follows:

(1) The other records requested are “not relevant to the original charge of discrimination filed by Louise Watley and the so-called amendment of October 20, 1970, was not timely with regard to changes in the substance of the original [333]*333charge 'but was only effective as to procedural defects such as the failure of Louise Watley to swear to the original charge;”

(2) “The information requested as to sex and race for the year 1969 was already contained in Form EEO-1 supplied to the defendant Murray, said information having been obtained by [Kessler] in accordance with § 1602.3 of the Regulations of the EEOC * * * ”

(3) “The other information requested would be extremely difficult to obtain and onerous for [Kessler] to supply. For instance, as already stated, [Kes-sler], in compliance with the above-quoted regulation, does not keep records of its employees by race or sex. Nor does the company keep records of hirings, discharges, promotions or job classifications other than its payroll records. Thus to obtain such information would entail examining each payroll record for additions, deletions, or increases.”

(4) “The information requested would be used by the complainant, Louise Wat-ley, in furtherance of her union organizational activities and in furtherance of her vindictive harassment of [Kessler], the history of which was explained in detail to the defendant Murray.”1 After the EEOC request for information was refused, a Demand for Access to Evidence was served upon Kessler. The evidence and information demanded was as follows:

“1. A list of all employees from January 1, 1969 to the present reflecting the following for each:
a. name
b. race
c. sex
d. date hired
e. job classification on date of hire
f. promotions from one job classification to a higher job classification
g. department to which initially hired and if any, to which subsequently transferred, reflecting the date of transfer
h. salary at the date of hire and current salary
i. current job classification and department to which assigned
“2. A copy of the current or most recent Standard Form EEO-1.
“3. All records, documents, correspondence, job descriptions and other papers which reflect descriptions of duties, responsibilities and privileges for each job classification of position.
“4. All records, documents, correspondence and other papers pertaining to discharges of employees (specifically including but not limited to documents such as discharge notices, which reflect the reasons for the discharges) from July 2, 1965 to the present reflecting the following information for each dis-chargee :
a. race
b. sex
c. date of hire
d. date of discharge
e. job classification
f. salary, and
g. reason for discharge
“5. All records, documents, correspondence, brochures and papers which reflect company policies, pertaining to discharges of employees.
“6. Any and all like or related records, in addition to those heretofore enumerated, retained in a different form from the documents heretofore enumerated, but reflective of the substance of such documents.”

[334]*334Kessler filed this petition within 20 days from the service of the Demand.

AMENDMENT OF THE ORIGINAL CHARGE

One of the primary arguments of Kessler is that the EEOC is not entitled to investigate or obtain information pertaining to the amended charge since that charge was not filed within 90 days after the alleged act of discrimination.2 Kessler contends that the facts alleged in the October 2 charge present additional acts constituting unlawful employment practices not directly related to or growing out of the subject matter of the original charge and, therefore, that the October 20 charge is not a valid amendment within the meaning of EEOC Regulations.

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Bluebook (online)
53 F.R.D. 330, 1971 U.S. Dist. LEXIS 11509, 4 Empl. Prac. Dec. (CCH) 7537, 3 Fair Empl. Prac. Cas. (BNA) 956, Counsel Stack Legal Research, https://law.counselstack.com/opinion/h-kessler-co-v-equal-employment-opportunity-commission-gand-1971.