EEOC v. Sears, Roebuck & Co.

• Citation: 504 F. Supp. 241
• Decision Date: 07 November 1980
• Docket Number: No. 79 C 4373.,79 C 4373.
• Court: U.S. District Court — Northern District of Illinois
• Parties: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. SEARS, ROEBUCK & COMPANY, Defendant.

504 F. Supp. 241

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. SEARS, ROEBUCK & COMPANY, Defendant.

No. 79 C 4373.

United States District Court, N. D. Illinois, E. D.

November 7, 1980.

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Thomas P. Sullivan, U. S. Atty., Margaret L. Herbert, Chicago, Ill., James P. Scanlan, Robert B. Harwin, Robin E. Harvey, E.E. O.C., Washington, D. C., for plaintiff.

Albert E. Jenner, Jr., Jenner & Block, Chicago, Ill., Charles Morgan, Jr., Hope Eastman, Washington, D. C., for defendant.

MEMORANDUM OPINION

GRADY, District Judge.

Plaintiff, the Equal Employment Opportunity Commission ("the Commission"), has filed this action against Sears, Roebuck and Company ("Sears") alleging sex discrimination under Section 703 of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. ? 2000e-2, and equal pay violations under Section 6(d) of the Fair Labor Standards Act ("Equal Pay Act of the FLSA"), 29 U.S.C. ? 206(d). These violations include discriminatory practices in the recruitment, selection, assignment, transfer, training and promotion of women at Sears facilities "in each and every state of the Continental United States." In addition, it is alleged that Sears has paid female employees lower wages for work requiring equal skill, effort and responsibility at Sears establishments "throughout the United States." Extensive injunctive relief and monetary damages, in the form of back pay awards, are sought on these claims. We note that four other Title VII actions, alleging "race" and "national origin" discrimination at selected facilities, were simultaneously brought against Sears by the Commission in different jurisdictions.¹ Two of these suits have now been dismissed, with a third suit proceeding to a trial on the merits.²

Defendant Sears has moved to dismiss this action on the basis of the Commission's failure to satisfy certain alleged statutory prerequisites to suit, abusive practices in the investigation of Sears, and res judicata as to the equal pay claims under the provisions of the FLSA. For the following reasons, we will deny defendant's motion to dismiss.³

Facts and Legal Standard

Before stating the factual allegations underlying defendant's motion to dismiss, it is appropriate to set out the legal standard to be applied. For purposes of this motion, inasmuch as only limited discovery has occurred, we will take the unusual step of resolving factual disputes in the defendant's favor. We have, in essence, adopted a "worst case" analysis to determine whether any legal basis can be stated for the dismissal of this action on issues collateral to the merits.⁴ If in fact such a legal basis exists, we would then allow additional discovery to develop it fully.

The Commission's investigation of Sears officially began with the filing of EEOC Chairman William H. Brown's charge against Sears on August 30, 1973. Verification of the charge, as required by 42 U.S.C. ? 2000e-5(b), was not effected until September 11, 1973, by which time, according to Sears, Brown's statutory term of office had expired and his power to verify had lapsed.

Prior to the Commission's charge, roughly in mid-1973, a task force was established to handle the investigation of Title VII violations by Sears. Personnel were selected from the National Programs Division ("NPD") of the Office of Compliance of the Commission.⁵ Attorney David A. Copus, as Deputy Chief and later Acting Director of this body,⁶ selected the staff. Mr. Copus clearly played a most important role in several phases of the Sears investigation prior to his April 11, 1977, departure from the Commission. His involvement included the signing of the "Notice of Charge" sent to Sears, the general supervising of the NPD Sears staff, periodic participation directly in pre-decision negotiations, and ultimately the writing (or some control over the writing) of the Commission's reasonable cause decision.⁷ Moreover, it is alleged that Mr. Copus drafted the rules pursuant to which the NPD would process the charge, vesting considerable authority in himself in the overall coordination of the investigation with the district officers and the Office of General Counsel.

While employed at the Commission during the period of November 1973 to September 1974, Mr. Copus was a member of the Board of Directors of the National Organization for Women Legal Defense and Education Fund ("NOW-LDEF"), the litigating arm of the National Organization for Women ("NOW"). In May 1974, NOW mounted a publicity campaign against Sears, culminating in the adoption of a resolution at its Seventh National Conference in Houston calling for "action both nationally and locally against Sears to insure their compliance with equal employment opportunity laws." At approximately the same time a document entitled "A Litigation Strategy for NOW" was released, bearing Mr. Copus' name, in which it was stated that NOW must identify "legal issues, in areas of NOW priorities, which could be developed into precedent setting litigation, on a national level" and must continue "the current program of identifying and pooling all of the legal talent in NOW ..."

In this same document also appeared the name of Whitney Adams, who during the period of January-June 1974 was employed as a special assistant to then EEOC Chairman John H. Powell, Jr. Ms. Adams, in turn, was a member of the Board of Directors of NOW during the period February 1973-October 1975. While there is little indication⁸ that Ms. Adams was directly involved in the Sears investigation during her tenure at the Commission, she did not hesitate to make her views known in 1974 on the prosecution of Sears for Title VII violations. In a NOW questionnaire, predating the May 1974 Houston convention, Adams as a candidate for a NOW directorship post made the following comment: Under the heading of "Supports Action Orientation for NOW" appeared "Supports action ... Nat'l targets with sim. actions as Sears, AT&T actions." As part of Adams' "Expertise in Feminist Issues/Actions" was the notation "Special Assistant to Chair, EEOC."

Beginning in May 1974, NOW filed a series of formal charges of employment discrimination against Sears. These charges were reviewed by Copus and other personnel of the NPD task force. These charges were filed by Copus as "suitable" for consolidation with the Brown charge.⁹

In late May 1974, EEOC Chairman Powell, apprised of Copus' seat on the NOW-LDEF Board, requested an opinion on the propriety of such activity from William Carey, EEOC General Counsel. On July 23, 1974, Mr. Carey responded, recommending Copus' terminating his NOW-LDEF directorship but not his post at the Commission or his involvement in the Sears investigation. This conclusion was arrived at because of the "sensitive nature of our the EEOC's responsibility under Title VII," and because

NOW-LDEF is put in a favored position by having him Copus serve on their Board of Directors even if in matters involving employment discrimination which come before the board for consideration, he declines to participate. His mere presence on the board would give the public the appearance of a conflict of interest. To further demonstrate this point, Mr. Copus is in direct contact with respondents in seeking information....

Further, the "activist nature of NOW," including its advocacy before the Commission, was perceived as a source of "embarrassment to the Commission" if Copus continued his dual service. Still, the proposed disposition of the NOW-LDEF directorship was not intended in any way to limit Copus' membership in NOW or "active" participation in activities of the organization distinct from the "policy-making authority of a director."¹⁰ Copus withdrew from service on the NOW-LDEF Board on September 6, 1974.

The Commission's decision, 77-21, was handed down on April 19, 1977, some 18 days after Copus left the Commission. In a 2-1 vote, reasonable cause was found to charge Sears with employment practice violations under Title VII.

Prior to the issuance of the decision, Commission officials apparently notified Sears of their intention to release information on the Sears investigation, including the Commission's decision, to individual charging parties. In response, Sears filed an action for declaratory and injunctive relief in the United States District Court for the District of Columbia to prohibit the dissemination of such information and to "enforce the confidentiality requirements of Title VII." Judge Gesell issued a temporary restraining order on June 1, 1977, enjoining the release of the Commission decision and certain other information. See Sears, Roebuck and Co. v. EEOC, 435 F.Supp. 751 (D.D.C.1977), aff'd in part and rev'd in part, 581 F.2d 941 (D.C.Cir.1978).¹¹ On about July 8, 1977, three copies of the Commission's decision were discovered missing from the Commission offices in Washington. Two of these copies later surfaced in the office of NOW's Chicago chapter and the Women's Equity Action League in Dallas. The third copy has never turned up. The source(s) of the leak were never uncovered. It is to be noted, however, that no finding of contempt of the injunction ever issued from District of Columbia District Court, nor is there any indication that such an order was sought.

Following the Commission's decision, conciliation efforts commenced on October 19, 1977. On February 27, 1978, during the pendency of these discussions, Sears petitioned the Commission for a reconsideration of the reasonable cause decision. The motion was denied on March 28, 1978. Negotiations continued until November 29, 1978, when they were terminated by the Commission. Bad faith is alleged against the EEOC for refusing to separately negotiate the individual charges (consolidated with the Brown charge) and the `sex only' charges for settlement.

This lawsuit was filed by the Commission on October 22, 1979.¹²

Summary of Grounds for Dismissal

Sears stakes...