E.E.O.C. v. City of Norfolk Police Dept.

Decision Date26 January 1995
Docket NumberNo. 94-1350,94-1350
Citation45 F.3d 80
CourtU.S. Court of Appeals — Fourth Circuit
Parties66 Fair Empl.Prac.Cas. (BNA) 1425, 66 Empl. Prac. Dec. P 43,523 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. CITY OF NORFOLK POLICE DEPARTMENT, Defendant-Appellee.

ARGUED: Lamont Navarro White, Office of Gen. Counsel, E.E.O.C., Washington, DC, for appellant. Harold Phillip Juren, Deputy City Atty., Norfolk, VA, for appellee. ON BRIEF: James R. Neely, Jr., Deputy Gen. Counsel, Gwendolyn Young Reams, Associate Gen. Counsel, Vincent J. Blackwood, Asst. Gen. Counsel, Office of Gen. Counsel, E.E.O.C., Washington, DC, for appellant.

Before RUSSELL and MOTZ, Circuit Judges, and CURRIE, United States District Judge for the District of South Carolina, sitting by designation.

Vacated and remanded by published opinion. Judge MOTZ wrote the opinion, in which Judge RUSSELL and Judge CURRIE joined.

OPINION

MOTZ, Circuit Judge:

The district court refused to enforce an Equal Employment Opportunity Commission (EEOC) investigatory subpoena finding that the underlying charge was untimely and, therefore, that the EEOC lacked jurisdiction over the matter. Because it was not clear from the face of the charge or otherwise apparent that the charge was untimely, we vacate the district court order and remand for enforcement of the subpoena.

The relevant facts are not disputed. On April 22, 1986, James C. Powell, an African-American, was suspended from his position as a police officer with the Norfolk Police Department (Norfolk) following an incident in which Powell shot and wounded a fleeing shoplifting suspect. The suspension was based on a criminal charge of unlawful wounding growing out of the incident and on six related charges of violation of various administrative regulations. On April 22, Powell also received and signed a certificate of suspension that provided: "This is, in effect, a decision to terminate your employment subject only to your rights of appeal...." Powell appealed his suspension to the Norfolk Police-Fire Trial Board (Board), but requested a postponement of the hearing on his administrative appeal pending the outcome of the criminal proceedings that had been initiated against him following the shooting. During the pendency of his administrative appeal, Powell remained suspended from active duty without pay.

On January 21, 1987, Powell was convicted in state court of the felony of unlawful wounding; the Court of Appeals of Virginia subsequently affirmed that conviction. During the course of the criminal proceedings, the administrative appeal to the Board remained in abeyance, largely at Powell's request. On June 18, 1990, Powell filed a charge with the EEOC, alleging that his suspension by Norfolk was racially motivated. The EEOC dismissed Powell's charge as untimely, stating that more than 180 days had passed since Powell's April, 1986, suspension and so the EEOC was not authorized to investigate the charge.

On September 6, 1990, Powell's felony conviction was set aside by a state trial court in light of newly discovered evidence. A new trial was ordered, but the Commonwealth chose not to re-try the case. As a result, on January 28, 1991, the criminal charges against Powell were dismissed. A month later, on February 20, 1991, Powell forwarded a letter to the Chief of the Norfolk Police asking for "immediate reinstatement of my job as a Norfolk Police Officer." The next day the Chief of Police denied Powell's request for immediate reinstatement, informing Powell that he would need to pursue the administrative appeal process in order to be reinstated. 1

Following the denial of his request for immediate reinstatement, on March 22, 1991, Powell filed a second charge with the EEOC. In this charge, Powell alleged that "[o]n February 21, 1991, I was denied reinstatement into the position of Police Officer with the City of Norfolk Police Dept .... because of my race...." On March 25, 1991, the EEOC sent Norfolk a notice of the second charge filed by Powell. Two weeks later, the EEOC requested information from Norfolk concerning its policy with respect to reinstating suspended police officers. Norfolk refused to supply the requested information, arguing that the EEOC was exceeding its authority by conducting an untimely investigation of Powell's 1986 suspension. The EEOC replied that the investigation concerned allegations of discrimination relating solely to Norfolk's February, 1991, refusal to reinstate Powell, not to Norfolk's 1986 suspension of Powell. Nonetheless, Norfolk continued to refuse the EEOC's request for information. On May 26, 1992, the EEOC issued an administrative subpoena seeking the previously requested information as to Norfolk's policy with respect to reinstating police officers after they have been suspended for violations "of the criminal code." When Norfolk refused to supply the EEOC with the subpoenaed information, the EEOC filed this action in the United States District Court for the Eastern District of Virginia to enforce the subpoena.

The district court refused to enforce the subpoena, holding that the EEOC was without jurisdiction over the matter because the underlying charge that the EEOC sought to investigate was untimely. EEOC v. City of Norfolk Police Dept., No. 2:93-MC-158, slip op. at 2 (E.D. Va. January 12, 1994). The court reasoned that Norfolk's refusal to reinstate Powell in February, 1991, was not a separate act of discrimination, triggering a new limitations period for filing a Title VII claim, but was only a reassertion of Norfolk's 1986 employment decision to suspend Powell. Id. at 3. Accordingly, the district court concluded that Powell's charge as to Norfolk's refusal to reinstate him was untimely because it was not filed with the EEOC within 180 days of Norfolk's 1986 suspension of Powell.

In general, the role of the district court in an administrative subpoena enforcement proceeding is "sharply limited." EEOC v. South Carolina Nat'l Bank, 562 F.2d 329, 332 (4th Cir.1977); see also EEOC v. American & Efird Mills, Inc., 964 F.2d 300, 303 (4th Cir.1992) ("The scope of judicial review over administrative subpoenas is necessarily limited by the intent of such review process. The process is not one for a determination of the underlying claim on its merits; Congress has delegated that function to the discretion of the administrative agency"). Therefore "[c]ourts should generally enforce administrative subpoenas where, as an initial matter, the administrative agency shows that (1) it is authorized to make such investigation; (2) it has complied with statutory requirements of due process; and (3) the materials requested are relevant." 964 F.2d at 302-03; see also Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 217-18, 66 S.Ct. 494, 509-10, 90 L.Ed. 614 (1946). There is no claim here that the EEOC has not complied with the statutory requirements of due process or that the requested materials are irrelevant. As in American & Efird Mills, this appeal "focuses solely on the EEOC's disputed investigatory authority." 964 F.2d at 303. 2

In EEOC v. Shell Oil Co., 466 U.S. 54, 104 S.Ct. 1621, 80 L.Ed.2d 41 (1984), the Supreme Court held that "the existence of a charge that meets the requirements set forth in Sec. 706(b), 42 U.S.C. Sec. 2000e-5(b), is a jurisdictional prerequisite to judicial enforcement of a subpoena issued by the EEOC." Id. at 65, 104 S.Ct. at 1629. The Court concluded that the charge before it did meet the requirements of Sec. 706(b), but it did not address the significance vel non of the timeliness of a charge. However, in EEOC v. Ocean City Police Department, 820 F.2d 1378 (4th Cir.1987) (en banc ), vacated, 486 U.S. 1019, 108 S.Ct. 1990, 100 L.Ed.2d 223 (1988), we relied on Shell Oil to hold that "a charge which shows on its face that it is untimely is also an invalid charge incapable of invoking EEOC's investigatory powers." 820 F.2d at 1380. Because it was conceded that the charge was untimely on its face, 3 we held the district court should have refused to enforce the EEOC subpoena. Id. The Supreme Court granted certiorari and vacated our judgment in Ocean City in light of EEOC v. Commercial Office Prods. Co., 486 U.S. 107, 123, 108 S.Ct. 1666, 1675, 100 L.Ed.2d 96 (1988), in which the Court, on other grounds, held that an untimely filing with a state agency does not preclude application of the extended 300-day federal filing period.

Norfolk insists that our judgment in Ocean City was vacated on other grounds and that Ocean City 's asserted holding that "a timely filed charge" is "a prerequisite to EEOC investigative jurisdiction" is still "to be accorded precedential value." Indeed, Norfolk heavily relies on that "holding." Assuming that when a judgment of this Court has been vacated by the Supreme Court, the opinion containing that judgment is still entitled to some precedential value, 4 Norfolk's reliance on Ocean City is nonetheless misplaced. This is so because in Ocean City we did not hold that a "timely filed charge" is a "prerequisite" either to judicial enforcement of an EEOC subpoena or to the EEOC's "investigative jurisdiction."

In fact, in Ocean City we very carefully explained that we were not holding that "subpoenas should be enforced only where there is concededly no timeliness problem," or that "timeliness is a jurisdictional prerequisite" to enforcement of a subpoena. 820 F.2d at 1383 n. 9 (internal quotations omitted). Rather, we held only that if "there are no facts in dispute relating to the untimeliness of the charge," if the charge "shows on its face that it is untimely," and "if the filing of the charge is concededly out of time or ... such is otherwise apparent," then "enforcement of a subpoena based on that charge should be denied." Id. at 1381, 1380, and 1383 n. 9 (emphasis added). Only if the charge here "shows on its face that it is untimely," is "concededly out of...

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