Cessna Aircraft Co. v. Kansas Commission on Civil Rights

• Decision Date: 17 January 1981
• Docket Number: No. 51646,51646
• Citation: 229 Kan. 15,622 P.2d 124
• Parties: , 25 Fair Empl.Prac.Cas. (BNA) 214 The CESSNA AIRCRAFT COMPANY, Appellee, v. KANSAS COMMISSION ON CIVIL RIGHTS, Appellant.
• Court: Kansas Supreme Court

Page 124

622 P.2d 124

229 Kan. 15, 25 Fair Empl.Prac.Cas. (BNA) 214

The CESSNA AIRCRAFT COMPANY, Appellee, v. KANSAS COMMISSION ON CIVIL RIGHTS, Appellant.

No. 51646.

Supreme Court of Kansas.

Jan. 17, 1981.

Syllabus by the Court

1. In an investigation by the Kansas Commission on Civil Rights, the subpoena power of the Commission is subject to the provisions of K.S.A. 60-245(b ) and the subpoena cannot be unreasonable or oppressive.

2. The test of relevancy to be applied to documents subpoenaed by the Kansas Commission on Civil Rights during an investigation is that the inquiry must be one which the commission is authorized to make, the demand for production must not be too indefinite and the information sought must be reasonably relevant.

3. A district court has the power to modify a subpoena issued by the Kansas Commission on Civil Rights and thus remove any objectionable features from it while preserving the remainder.

4. In determining whether the effects of a subpoena issued by the Kansas Commission on Civil Rights are unreasonable or oppressive under K.S.A. 60-245(b ), the court must apply the statute liberally to carry out the mandate of K.S.A. 1979 Supp. 44-1006.

5. The determination of the scope of a subpoena issued by the Kansas Commission on Civil Rights is subject to the sound discretion of the trial court.

6. When the scope of a subpoena is called into question before the trial court some showing of relevancy must be made if the trial court is to have a basis upon which to determine whether the subpoena is unreasonable or oppressive.

Roger W. Lovett, Topeka, argued the cause and Robert T. Stephan, Atty. Gen., was with him on the brief for appellant.

Alvin D. Herrington of McDonald, Tinker, Skaer, Quinn & Herrington, Wichita, argued the cause and was on the brief for appellee.

HOLMES, Justice:

Plaintiff-appellee, Cessna Aircraft Company (Cessna), filed this action in district court to enjoin the Kansas Commission on Civil Rights (KCCR) from proceeding with an investigation of a complaint filed by a Cessna employee, or enforcing a subpoena duces tecum issued in conjunction with the investigation. The district court, after a hearing in which the KCCR declined to present any evidence, issued an injunction limiting the scope of the investigation and likewise modified the subpoena, limiting its scope. The KCCR has appealed and the case was transferred from the Court of Appeals pursuant to K.S.A. 1979 Supp. 20-3017.

In June, 1977, a complaint was filed under the terms of the Kansas Acts Against Discrimination, (K.S.A. 44-1001 et seq., as amended and supplemented), by Nancy Cotter with the KCCR, alleging that Cessna was guilty of unlawful employment discrimination based upon sex. Her complaint based upon a violation of K.S.A. 1979 Supp. 44-1009(a )(1), omitting formal parts, reads:

1. "I am a woman.

2. "In 1974, I assumed a job that was previously held by a male at Cessna Aircraft Company with the same job responsibilities that the male had, but my grade level was a grade five (5), whereas his was a grade three (3).

3. "In August, 1976, I became an accounts payable section leader and have discovered since that time, that my rate of pay was lower than male section leaders who do substantially the same work.

4. "On or about March 1, 1977, I asked for the opportunity to apply for a higher paying job with the same grade level as I currently hold. The accounting manager, Mr. R. W. Lester, informed me that if I took the job, I would have to take a cut in pay. This is in the face of the fact that I had more seniority than the person who was holding the job.

5. "When a division of responsibility was made in my department, I supervised only women and Warren Sinclair supervised the men. The very absence of women in higher management indicates that there is a pervasive pattern of practice of sex discrimination at Cessna. There is discrimination in the assignment of women subordinates; a practice of not assigning male subordinates to those few women who are in any kind of managerial positions. Those women who are not hourly employees, but are labeled salary employees consistently receive the lowest salary of all salary employees. There is also discouragement of women attempting to receive promotions. When women receive new assignments, there is a change of grade level (pay scale) which is not done when men in similar situations get a job assignment. (Emphasis added for ready reference).

6. "For monthly salary males there is a company barber shop, so that those males may have their hair cut on company time. To my knowledge, women can not leave on company time to have their hair fixed or cut, there is no company beauty salon. Males are also given flying lessons because of job related roles. To the best of my knowledge, no women have been afforded the same privileges.

7. "I believe there is discrimination against women in areas of pay, promotion, benefits, misleading and inaccurate merit systems. There is also discrimination against women in the area of hourly, weekly, or monthly pay systems. There is also discrimination in classification and assignment of jobs. 8. "I hereby charge Cessna Aircraft Company and their representatives with a direct violation of the Kansas Act Against Discrimination for discriminating against me because of my sex, and others similarly situated in the terms, conditions, and privileges of our employment under which we have to work, in the areas of pay, promotions, benefits, misleading and inaccurate merit systems, and in the classifications and assignments of jobs."

We have added the paragraph numbers 1 through 8 for ready reference throughout the opinion.

In April, 1977, Ms. Cotter filed a similar complaint with the Equal Employment Opportunity Commission alleging a violation of the Civil Rights Act of 1964, as amended, and in August, 1978, she filed another complaint with the KCCR alleging violations of K.S.A. 1979 Supp. 44-1009(a )(1), (4). The latter two complaints are not involved in this proceeding.

At the outset we will attempt to clarify certain terminology which appears throughout the pleadings, briefs and arguments in this case and which has appeared in prior cases of the courts. On numerous occasions the parties refer to a "pattern of practice" investigation, a "pattern and practice" investigation, a "pattern or practice" investigation, and individual investigations of unlawful employment practices. K.S.A. 1979 Supp. 44-1009 defines certain unlawful employment practices which may be the basis for an investigation under any of the frequently used designations. The Kansas Acts Against Discrimination (K.S.A. 44-1001 et seq.) does not attempt to define the various terms which have been adopted by the courts and the parties to this action other than specific acts which constitute unlawful employment practices. See K.S.A. 1979 Supp. 44-1002(g ) and 44-1009(a ) and (b ). The statutes do, however, refer to a "practice of discrimination" and a "pattern or practice of discrimination" which, when read with all the statutes, obviously refers to something other than an individual or isolated complaint of an "unlawful employment practice." K.S.A. 1979 Supp. 44-1005. As we perceive it, any violation of 44-1009(a ) or (b ) could be the subject of an individual complaint by the particular employee who claims to have been subjected to the unlawful employment practice. On the other hand, if such violations are more pervasive in scope and apply throughout all or a substantial portion of the work force of a particular employer, then such violations could logically be designated as a pattern or practice of unlawful employment discrimination. As we see the distinction, if the violation is isolated or peculiar when applied to a particular individual it is an unlawful employment practice or act, but if it applied to numerous employees, it appears to be called a pattern and/or practice of discrimination. Complaints affecting numerous employees in the employers' work force appear to have been interchangeably designated pattern of practice complaints, pattern or practice complaints, and pattern and practice complaints, and such language will be so considered in this opinion. Federal courts have also recognized a distinction between an individual complaint and a pattern or practice complaint. Teamsters v. United States, 431 U.S. 324, 52 L.Ed.2d 396, 97 S.Ct. 1843 (1977); United States v. Gilman, 341 F.Supp. 891 (S.D.N.Y.1972).

Ms. Cotter was first employed in July, 1973, by Cessna in department 94 at its Pawnee Division in Wichita and in November, 1973, transferred to department 92. She has only worked in departments 92 and 94, both of which are accounting departments at the Pawnee Division. At the time of trial, she was a section leader in department 92, a supervisory position, drawing a weekly salary of $320.00. She is a grade B, non-technical, administrative weekly-salaried supervisor.

A copy of the Cotter complaint was served upon Cessna by mail on June 27, 1977. Cessna responded on September 9, 1977. On March 22, 1978, Mr. Earl Haehl, a representative of the KCCR, appeared at the Cessna Pawnee Division and presented a records request as a part of his investigation of the complaint. During a conversation with Cessna personnel officials, Mr. Haehl advised he was investigating a "pattern and practice complaint" based upon the allegations of Ms. Cotter. When asked for details as to the scope and nature of the investigation, Mr. Haehl merely stated it was a broad investigation based upon the Cotter complaint. The records requested by Mr. Haehl all pertained to accounting personnel and included job descriptions, personnel files, salary histories, EEO-1 reports (federal reports required by Title VII of the Federal Civil Rights Act, 42 U.S.C. 2000e et seq.), and a copy of the company employees handbook. The records and items requested were furnished by Cessna. On March 28, 1978,...