E.E.O.C. Keco Industries, Inc., 77-3498
| Decision Date | 18 April 1980 |
| Docket Number | No. 77-3498,77-3498 |
| Citation | 617 F.2d 443 |
| Parties | 22 Fair Empl.Prac.Cas. 486, 22 Empl. Prac. Dec. P 30,759 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. KECO INDUSTRIES, INC., Defendant-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Ismael Alvarez, E. E. O. C., Chicago, Ill., William H. Ng, E. E. O. C., Washington, D. C., for plaintiff-appellant.
John J. Getgey, Jr., White, Getgey & Meyer Co., L. P. A., Cincinnati, Ohio, for defendant-appellee.
Before ENGEL and KENNEDY, Circuit Judges, and PECK, Senior Circuit Judge.
The Equal Employment Opportunity Commission (EEOC) appeals from the District Court's grant of summary judgment to the defendant Keco Industries, Inc. (Keco). This Court, upon review of the entire record, finds that there are issues of material fact in dispute and remands the case to the District Court for further proceedings.
Mrs. Lena Grimes, an employee of Keco, filed a charge with the EEOC on July 22, 1970, alleging sex discrimination in that, although she was promoted to the position of buyer, she never received the same pay as the male buyers. Investigative interviews were conducted in February 1971 and the Regional Director made findings of fact in April 1971. A Determination of Probable Cause was made May 1, 1974. Mrs. Grimes was notified of her right to sue July 9, 1974 and filed suit December 6, 1974. On September 22, 1975 the EEOC filed the instant action. Its motion to consolidate the two actions was granted by the District Court.
Thereafter, Keco moved to dismiss the EEOC's complaint as being merely duplicative of the Grimes' complaint. 1 The District Court held that the complaint alleged charges broader than those in Grimes' complaint and refused to dismiss the case. After taking depositions and serving interrogatories upon EEOC, Keco moved for summary judgment, arguing that the EEOC's answers to the interrogatories indicated that it had nothing except Grimes' charge as a basis for its allegations. The District Court agreed that EEOC's answers to interrogatories indicated it had nothing broader than Grimes' charge and that it could not depend upon discovery to seek to establish it had anything broader.
On appeal, EEOC points to its Determination of Probable Cause as proof it has a broader claim than Grimes' charge. Keco objects to the EEOC's reliance on this document since it is merely the unsworn determination by a party to the litigation and should be treated in the same fashion as an allegation of a complaint. It claims that as EEOC has not presented any affidavits, depositions, or other sworn testimony, it failed to meet the requirements of Fed.R.Civ.Pro. 56(e) for opposing a motion for summary judgment and thus must fail.
The allegations of the EEOC complaint are clearly broader than those alleged by Mrs. Grimes. Her complaint states that Keco discriminated on the basis of sex by not paying her the same wages as men who performed the same job, that of buyer. The EEOC, in P 7 of its complaint, alleges Keco engaged in unlawful employment practices, to wit: (a) failing to pay females on the same basis as males; (b) assigning women to lower paying clerical jobs and refusing them advancement to management and supervisory positions; and (c) maintaining job classifications segregated on the basis of sex. In P 9 of its complaint, EEOC alleges that since 1971 Keco failed to submit to the EEOC the Employer Information Report EEO-1 (EEO-1 Report (Standard Form 100)) as required by § 709(c) of Title VII and 29 C.F.R. § 1602.7. This Court must examine the EEOC's answers to Keco's interrogatories to determine if those answers show there is no issue of fact with respect to the broader allegations.
With respect to the failure to file EEO-1 reports, the EEOC's answers to interrogatories stated that the Commission's Office of Research, the division of the Commission which receives and has custody of EEO-1's found no record of EEO-1 reports for Keco Industries, Inc. for the years 1972, 1973, 1974, and 1975. By affidavit, David M. Levin stated that he made a diligent inquiry of the Office of Research, but no EEO-1's could be found for Keco for 1972 through 1975. By affidavit, Marguerite Downing, Keco's Office Manager, stated that filings of EEO-1's were made 1970 through 1975. Attached to the affidavit were copies of EEO-1's for February 1971, May 1972, and May 1973. However, for 1973, 1974, and 1975, copies of the Small Business Administration Compliance Report were attached rather than EEO-1's. (The record does not state whether these are equivalent.) The affidavits clearly show a material issue of fact whether or not Keco filed the proper papers. EEOC's answers to interrogatories did not remove this issue of disputed fact. The District Court was in error in dismissing the complaint with respect to P 9.
The more important issue relates to the charges of sex discrimination. In its answer to question 4, the EEOC admitted that only four persons have filed charges against Keco, and only one, Mrs. Grimes, is a sex discrimination charge. Question 5 asked EEOC to specify the names of individuals affected and the nature of all the alleged unlawful employment practices mentioned in EEOC's complaint, P 7. EEOC answered:
The names of those persons affected by the Defendant's alleged unlawful employment practices and the dates they were affected will be made available to Defendant after Plaintiff has conducted discovery. The names of witnesses and a list of places, where relevant, will be provided to Defendant after the Plaintiff has conducted discovery.
Question 6 asked the EEOC to state the policies and practices of Keco upon which P 7 of the complaint was based and to identify all documents, records, or writings in which such practices were set forth. EEOC answered:
The allegations in paragraph 7 of Plaintiff's complaint are based upon the reasonable cause determination on the issues of equal pay and sex segregated job classifications, in the Grimes' charge. All discoverable documents,...
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