EQUAL EMPLOYMENT OPPORTUNITY v. BAY SHIPBUILDING, Civ. A. No. 79-C-870.

Citation480 F. Supp. 925
Decision Date19 December 1979
Docket NumberCiv. A. No. 79-C-870.
PartiesEQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. BAY SHIPBUILDING CORPORATION, a Subsidiary of the Manitowoc Company, Inc., Defendant.
CourtU.S. District Court — Eastern District of Wisconsin

Nelson G. Alston, Supervisory Trial Atty., Barry L. Chaet, Senior Trial Atty., Isaia S. Ortiz, Trial Atty., Equal Employment Opportunity Commission, Milwaukee, Wis., for plaintiff.

Sara Joan Bales, Legal Services of Northeastern Wisconsin, Inc., Green Bay, Wis., for charging party Ann Marie Keller.

Clifford B. Buelow, Milwaukee, Wis., for defendant.

MEMORANDUM DECISION AND ORDER

REYNOLDS, Chief Judge.

This is an action for injunctive relief brought by the Equal Employment Opportunity Commission (the "Commission") against the Bay Shipbuilding Corporation ("Bay"). The Commission seeks an order compelling Bay to reinstate Ann Marie Keller to her former position with the company. The Commission bases its request on the allegation that Ms. Keller was discharged because she opposed Bay's discriminatory employment practices. Currently before the court is the Commission's motion for a preliminary injunction.

The parties have submitted a set of stipulated facts, and further testimony was presented at a hearing held on November 30, 1979. The pertinent facts can be summarized as follows. Ms. Keller was hired by Bay as a security guard in November 1977. Soon after she was hired, she applied for admission to an electrician's training program operated by Bay. She was denied admission on the ground that she did not have a high school diploma. On July 26, 1978, she filed a charge of sex discrimination with the Commission. The same charge was filed with the Wisconsin Equal Rights Division on July 31, 1978. On July 11, 1979, Ms. Keller amended her charge with the Commission to allege classwide discrimination.

Ms. Keller continued to seek admission to the training program, and, in furtherance of this goal, she made a number of telephone calls to top company officials including the president of Bay and the president of Bay's parent, the Manitowoc Company. These calls were made on September 5 and 6, 1979. On September 10, 1979, Ms. Keller was discharged for "disruptive behavior."

The Commission's authority to seek preliminary injunctive relief on behalf of a charging party, such as Ms. Keller, is contained in 42 U.S.C. § 2000e-5(f)(2) which provides:

"Whenever a charge is filed with the Commission and the Commission concludes on the basis of a preliminary investigation that prompt judicial action is necessary to carry out the purposes of this Act, the Commission * * * may bring an action for appropriate temporary or preliminary relief pending final disposition of such charge. Any temporary restraining order or other order granting preliminary or temporary relief shall be issued in accordance with rule 65 of the Federal Rules of Civil Procedure. * * *"

The parties are not in agreement as to the standards governing motions for preliminary relief brought pursuant to this statute. More specifically, the question is whether the Commission must make a special showing of irreparable injury in order to prevail on its motion.

There are some indications that actions brought by the Commission pursuant to § 2000e-5(f)(2) are not governed by the same standards that govern traditional requests for preliminary relief. In Equal Employment Opportunity Commission v. Pacific Press Publishing Association, 535 F.2d 1182, 1187 (9th Cir. 1976), the Ninth Circuit made the following observations:

"* * * Unlike the more traditional route to preliminary injunctive relief, the usual requirement of irreparable injury is relaxed because of the statutory authority granted to EEOC to seek judicial relief against Title VII violations. * * * Furthermore, while the injunction runs to the direct benefit of the charging parties, the district court here looked to the injury to EEOC and the public interest and not to the charging parties. This type of inquiry in effect mandates the grant of a preliminary injunctive whenever the EEOC seeks it under § 2000e-5(f)(2) so long as its procedural requirements are met."

At least one district court has held that in § 2000e-5(f)(2) actions, the traditional equitable standards do not apply. In Equal Employment Opportunity Commission v. Union Bank of Arizona, 12 F.E.P. 527 (D.Ariz.1976), the Court stated:

"Section 2000e-5(f)(2) provides statutory authority for preliminary relief to protect the jurisdiction of the Commission during the pendency of charges before it. Since it is a wholly statutory remedy, the traditional standards for determining entitlement to preliminary injunctive relief are not applicable. * * *
"The standards for granting preliminary relief under § 2000e-5(f)(2) are established by the language of the Act itself. In this action, the plaintiff must show that:
"(a) A charge of discrimination was filed with the Commission;
"(b) After conducting a preliminary investigation, the Commission concluded that prompt judicial action was necessary to carry out the purposes of the Act; and
"(c) A prima facie case that defendant committed or is likely to commit serious violations of the Act which will, if not enjoined, frustrate its purpose."

Some district courts, however, have applied the traditional standards in §...

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7 cases
  • E.E.O.C. v. Bay Shipbuilding Corp.
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • December 31, 1981
    ...by the court below that the EEOC's investigation was then too incomplete to warrant a preliminary injunction. EEOC v. Bay Shipbuilding Corp., 480 F.Supp. 925 (E.D.Wis.1979). Bay refused to comply with the questionnaire. Consequently a subpoena duces tecum was served upon Bay on March 6, 198......
  • EEOC v. Pacific Southwest Airlines
    • United States
    • U.S. District Court — Northern District of California
    • April 20, 1984
    ...of irreparable harm. See EEOC v. Anchor Hocking Corp., 666 F.2d 1037, 1041-43 (6th Cir. 1981) (holding); EEOC v. Bay Shipbuilding Corp., 480 F.Supp. 925, 927-28 (E.D. Wis.1979) (holding); EEOC v. Lockheed Electronics Co., Inc., 461 F.Supp. 242, 243, 244-45 (S.D.Tex.1978) (alternate basis fo......
  • EEOC v. Astra USA, Inc.
    • United States
    • U.S. District Court — District of Massachusetts
    • June 27, 1996
    ...pursuant to § 706(f)(2) may be either to the EEOC or to the charging party. Anchor Hocking, 666 F.2d at 1043; EEOC v. Bay Shipbuilding Corp., 480 F.Supp. 925, 928 (E.D.Wis.1979). The Commission may demonstrate irreparable harm by showing that its ability to enforce Title VII or to investiga......
  • E.E.O.C. v. Anchor Hocking Corp.
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • December 16, 1981
    ...of irreparable injury is required for the issuance of a temporary injunction under § 706(f) (2), relied on EEOC v. Bay Shipbuilding Corp., 480 F.Supp. 925 (E.D.Wis.1979) (EEOC's appeal dismissed on its motion by order entered July 7, 1980 (7th Cir. No. 80-1007)). Bay Shipbuilding is on all ......
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