Sparton Southwest, Inc. v. Equal Employment Opportunity Commission

461 F.2d 1055, 4 Fair Empl. Prac. Cas. (BNA) 29, 1971 U.S. App. LEXIS 6915, 4 Empl. Prac. Dec. (CCH) 7575

• Court: Court of Appeals for the Tenth Circuit
• Decided: November 29, 1971
• Docket: No. 668-70, 669-70
• Status: Published

Opinions

SETH, Circuit Judge.

The appellee corporations, United Nuclear-Homestake Partners, and Sparton Southwest, Inc., in separate actions which were consolidated in the trial court, pursuant to 42 U.S.C. § 2000e-9(c), filed petitions seeking to have set aside demands made by the Equal Employment Opportunity Commission for the production of records and to take depositions. The Commission filed its answers to the petitions, and filed cross-petitions for enforcement of its demands. After hearings, the trial court set aside the demands of the Commission, and denied relief on the cross-petitions. The Commission has taken these appeals.

The charges which gave rise to the demands for records were filed by one of the Commissioners against the appellee corporations under 42 U.S.C. § 2000e-5(a), section 706(a) of the Civil Rights Act of 1964. The Commissioner’s charge against United Nuclear-Home-stake Partners was as follows:

“COMMISSIONER’S CHARGE

“Pursuant to Title VII, Section 706(a) of the Civil Rights Act of 1964, I charge the following employer with unlawful employment practices:

“United Nuclear Homestake Partners

P. O. Box 98

Grants, New Mexico 87020

“I have reasonable cause to believe that the above employer is within the jurisdiction of the Equal Employment Opportunity Commission and has violated and continues to violate Section 703 of the Civil Rights Act of 1964 by discriminating against Negroes, Indians and Spanish Surnamed Americans on the basis of race and/or National Origin with respect to recruiting and hiring and other terms and conditions of employment, inter alia:

“Respondent discriminatorily fails and/or refuses to recruit and/or hire Negroes, Indians and Spanish Surnamed Americans in the same manner it recruits and/or hires An-glos.

“Respondent discriminatorily maintains occupational categories that are restricted to exclude Negroes, Spanish Surnamed Americans and Indians.”

The Commissioner’s charge filed against Sparton Southwest, Inc. was identical to the above charge except it contained this additional paragraph:

“Respondent discriminatorily maintains separate job classifications on the basis of sex.”

The trial court held that the charges filed were not sufficient to meet the requirements contained in 42 U.S.C. § 2000e-5(a) in that they did not assert any basis in fact. Thus there was no authority for the requests for documents or depositions.

The statutory provision for the charges is in part as follows (42 U.S.C. § 2000e-5(a)):

“Whenever it is charged in writing under oath by a person claiming to be aggrieved, or a written charge has been filed by a member of the Commission where he has reasonable cause to believe a violation of this subchap-ter has occurred (and such charge sets forth the facts upon which it is based) that an employer, employment agency, or labor organization has engaged in an unlawful employment practice, the Commission shall furnish such employer, employment agency, or labor organization (hereinafter referred to as the ‘respondent’) with a copy of such charge and shall make an investigation of such charge, provided that such charge shall not be made public by the Commission.”

The issue on appeal is thus whether the statutory provision quoted above requires that a charge filed by a Commissioner must “ * * * sets forth the facts upon which it is based,” that is, whether the parenthetical portion of the section refers to the charges filed by a Commissioner, and is a requirement.

In our opinion the trial court was correct in its holding that Congress by the portion in parentheses has expressly provided that the basic facts supporting a charge filed by a Commissioner be set forth therein.

We have not heretofore directly considered this issue, but we did construe a portion of the statute in United States v. Gustin-Bacon Division, Certain-Teed Products Corp., 426 F.2d 539 (10th Cir. 1970). The portion there considered permits the Attorney General to file civil actions in a United States District Court. 42 U.S.C. § 2000e-6(a). We there held that since the provisions concerned the filing of civil actions in the federal courts the statutory reference was governed by the Federal Rules of Civil Procedure relating specifically to pleading. 42 U.S.C. § 2000e-6(a), there concerned, contained language similar to the section here to be construed in that it stated that the complaint to be filed in court by the Attorney General should be one “ * * * setting forth facts pertaining to such pattern or practice. * * *” The section there also provided that the Attorney General have “reasonable cause to believe” a violation has occurred. As mentioned, we there held that the Federal Rules of Civil Procedure governed the contents of complaints to be filed in the district courts, but in so doing we contrasted section 2000e-6(a) with section 2000e-5(a) with which we are here concerned. We there said: “There is no requirement here, as there is in § 2000e-5(a), that the charge set forth facts upon which it is based.”

Under the Gustin-Bacon case and what we consider to be the proper construction of the Act, we hold that 42 U. S.C. § 2000e-5(a) does require a recitation of the basic facts on which the charges filed by a Commissioner are based. Thereby the statutory language inserted in the parentheses “and such charge sets forth the facts upon which it is based,” is given the application apparently intended. The sentence in which the critical words appear refers to the alternatives, charges by a person aggrieved or charges filed by a Commissioner, and the language in the parentheses by ordinary construction refers to the Commissioner’s charges. It would appear that Congress did not wish to require an employee or a person who was directly involved to be required to do anything more than make a charge in writing. It is certainly reasonable to place a greater requirement on a member of the Commission.

The principal case reaching a contrary result is Bowaters Southern Paper Corp. v. E.E.O.C., 428 F.2d 799 (6th Cir.). The court there held in a case very similar to this one that language was not a requirement as to the contents of the charge. A similar holding without discussion appears in General Employment Enterprises, Inc. v. E.E.O.C., 440 F.2d 783 (7th Cir.). But we instead follow the distinction made by this court in Gustin-Bacon, as a proper interpretation of the statutory provision and to give effect to all of the language contained in it.

Affirmed.