532 F.2d 359 (4th Cir. 1976), 74-1974, E.E.O.C. v. General Elec. Co.

Docket Nº:74-1974.
Citation:532 F.2d 359
Party Name:Dec. P 10,627 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Appellant, v. GENERAL ELECTRIC COMPANY, Appellee.
Case Date:January 22, 1976
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 359

532 F.2d 359 (4th Cir. 1976)

Dec. P 10,627

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Appellant,

v.

GENERAL ELECTRIC COMPANY, Appellee.

No. 74-1974.

United States Court of Appeals, Fourth Circuit

January 22, 1976

Argued April 9, 1975.

Page 360

[Copyrighted Material Omitted]

Page 361

Marian Halley, Atty., E.E.O.C., Washington, D. C. (William A. Carey, Gen. Counsel, Joseph T. Eddins, Jr., Associate Gen. Counsel, Beatrice Rosenberg, Charles L. Reischel, Asst. Gen. Counsels, E.E.O.C., Washington, D. C., on brief), for appellant.

John S. Battle, Jr., Richmond, Va. (J. Robert Brame, III, McGuire, Woods & Battle, Richmond, Va., on brief), for appellee.

Before HAYNSWORTH, Chief Judge, and RUSSELL and WIDNER, Circuit Judges.

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DONALD RUSSELL, Circuit Judge:

This action grew out of two charges of racial discrimination filed with the Equal Employment Opportunity Commission against the defendant General Electric Company. The first charge, filed by one Ford on May 19, 1969, complained of racial discrimination in promotion and job transfer; the second, filed by one Slaughter on September 22, 1969, charged racial discrimination in employment. Investigation of the two charges apparently proceeded separately. In any event, separate decisions were rendered by the EEOC in the two cases, and for some reason not indicated in the appellate record, the second charge was acted on first. The EEOC's "reasonable cause" determination on the Slaughter complaint was filed on December 27, 1971. It was not until May 11, 1972 that a "reasonable cause" determination was filed in the Ford case. In its determinations, the EEOC found "reasonable cause" to believe that the defendant had engaged in racial discrimination in its promotion and transfer practices involving the complainant Ford but had not engaged in racial discrimination in denying employment to the complainant Slaughter. To this extent, it affirmed the findings of its investigator "in their entirety" but, on a review of the "full investigative file" 1 it made additional findings of "reasonable cause" to believe the defendant had engaged in sex discrimination. 1a

After the determinations of "reasonable cause" had been made in each case, the defendant was provided with a copy of the EEOC's determinations and was invited to enter into conciliation as contemplated under the Statute. Before conciliation began in either case, the defendant wrote the EEOC to express its willingness to engage in conciliation but specifically reserved the right to refuse to consider conciliation of any "unrelated charges * * * beyond the original charge (of racial discrimination)." Conciliation in both cases was unsuccessful and this suit by the EEOC resulted. In its complaint the EEOC stated in separate counts claims of racial and sex discrimination. After some discovery, the defendant moved for summary judgment in its favor on the second count, charging sex discrimination. The basis of the motion, as phrased by the defendant, was that "no complaint based upon sex (had been) filed against the defendant * * *." The District Court sustained the motion and ordered judgment for the defendant on the second count of the complaint, i. e., the charge of sex discrimination. 2 The Commission has appealed. We reverse.

The District Court predicated its grant of summary judgment on want of "standing" on the part of the EEOC to maintain the action. In developing its reasoning in support of this ruling, it expressed approval of the rule as announced in Sanchez v. Standard Brands, Inc. (5th Cir. 1970) 431 F.2d 455, that the allowable scope of the judicial complaint is not fixed strictly by the allegations of the EEOC charge but rather by "the 'scope' of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination." 3 It,

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also, accepted without question the reasoning in King v. Georgia Power Company (N.D.Ga.1968) 295 F.Supp. 943, that "the statute (i. e., Title VII) would be subverted if the issues raised during conciliation efforts could not later be the subject of a civil suit," thereby assuming that, as other decisions have declared, the opportunity to conciliate is a crucial issue in determining the issues open for adjudication in the civil suit. 4 But, while it agrees that the civil suit is related in its scope to the investigation and may include other claims of discrimination than those stated in the charge filed with the EEOC if they reasonably "grow out" of the investigation, it held that this right to include an additional claim of discrimination uncovered in the investigation in the civil suit is limited to the claims "which might have been raised by the charging party." It reasoned that a claim of discrimination which the charging party had no standing to assert was necessarily a claim "which could not reasonably have been expected to grow out of the charge of discrimination." In further explication of its ruling, it stated that, if the charging party (Slaughter) had been a "black female" and had claimed in her charge only racial discrimination, it would have sustained the count on sex discrimination, based on facts uncovered in the investigation of the charge of racial discrimination, because "the discrimination uncovered" in those circumstances would "have had the potential of prejudicing the charging party * * *." It distinguished Latino v. Rainbo Bakers, Inc. (D.Colo.1973) 358 F.Supp. 870, because there the charging party was female and, though her charge related only to national origin discrimination, the sex discrimination uncovered by the investigation was a type of discrimination she had standing to raise in a civil suit since there was the "potential of" prejudice to her as a result of that discrimination. It dismissed as "not a crucial factor" that "the EEOC determined that there was no reasonable cause to believe that Mr. Slaughter's charge was true" and declared that, "(T)he significant factor is whether he might have been subjected to type of discrimination alleged in the suit * * *," i. e., whether he, a male, could have been prejudiced by sex discrimination directed at women. It concluded that since any claim of sex discrimination in this case could not have any "potential of prejudicing the charging party," there was no standing in the charging party or the EEOC to assert that claim in a suit arising out of the charges filed by either Ford or Slaughter, both males.

The District Court proceeded to add in its decision that, whenever there was any additional type of discrimination uncovered in the investigation of a charge by an "aggrieved" person which that "aggrieved" person himself lacked standing to assert, then that new discrimination could only be the subject of a civil suit after the filing of a new and separate Commissioner's charge, or presumably a charge by some "aggrieved person" who could be prejudiced by the discrimination, and after the EEOC had investigated and acted on this new charge. In justification of the requirement that the "discrimination uncovered" in the investigation of the initial charge, which the charging party was held to be without standing to raise, should be severed from the original proceedings and be converted into a new and separate proceeding predicated on a new charge, the Court declared that any other treatment of the discrimination would prejudice the employer in connection with possible backpay liability, and would represent a failure to follow "the procedure contemplated by Title VII and its (EEOC's) regulations * * *." Though it would require a new charge for a reasonable cause determination of sex discrimination, it seemingly recognized that the investigation of the charges filed by Ford and Slaughter had reasonably uncovered sex discrimination which, upon the filing of a new charge, could eventuate in a civil suit, and accordingly

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dismissed the count stating sex discrimination "without prejudice."

In its argument in this Court in support of the judgment below, the defendant, on the other hand, would give the charge filed by the "aggrieved" party a more constrictive effect on both the scope of the EEOC's action and of the civil action than did the District Court in its opinion. It did, however, concede the correctness of the District Court's ruling that a civil suit might be based properly on any additional claimed discrimination uncovered as a result of the investigation by the EEOC of the charge filed with it, provided the facts in support of that finding of discrimination reasonably grew out of the investigation of the charge. But it asserts on this appeal a more restrictive and limited application of this principle than did the District Court. While the District Court would limit that principle to situations where the discrimination uncovered was one that had the "potential" of prejudice to the charging party, the defendant would restrict its application not only by rules of standing, as did the District Court, but also by type of discrimination. It argues that any additional claim of discrimination, if it is to be included in a civil suit growing out of an investigation of the initial charge, must also qualify as a "like" or "related" type of discrimination to that charged and that in no event can racial and sex discrimination be regarded as "like" or "related" types of discrimination. Under this argument, the EEOC could never maintain a civil suit on, or, for that matter, make a "reasonable cause" determination of, sex discrimination where the charging party only claimed racial discrimination, however clearly the facts supporting sex discrimination may have been developed in, or reasonably grew out of, the investigation of the racial charge made by the charging party. This contention, of course, would mean that, contrary to what the District...

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