E.E.O.C. v. Anchor Hocking Corp.

• Decision Date: 16 December 1981
• Docket Number: 80-3457,Nos. 80-3456,s. 80-3456
• Citation: 666 F.2d 1037
• Parties: 27 Fair Empl.Prac.Cas. 809, 27 Empl. Prac. Dec. P 32,291 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, and Earl Murry, Plaintiff-Intervenor-Appellant, v. ANCHOR HOCKING CORPORATION, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1037

666 F.2d 1037

27 Fair Empl.Prac.Cas. 809,

27 Empl. Prac. Dec. P 32,291

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant and Earl Murry, Plaintiff-Intervenor-Appellant, v. ANCHOR HOCKING CORPORATION, Defendant-Appellee.

Nos. 80-3456, 80-3457.

United States Court of Appeals Sixth Circuit.

Argued Oct. 19, 1981.

Decided Dec. 16, 1981.

Bennie E. Espy, Dennis D. Grant and Charles H. Walker, Bricker & Eckler, Columbus, Ohio, for plaintiff-appellant in No. 80-3456.

Justine Lisser, E. E. O. C.-Appellate Division, Washington, D. C., Lawrence Mays, E. E. O. C. (Cleveland Dist. Office), Cleveland, Ohio, for plaintiff-appellant in No. 80-3457.

Rudolph Janata, Porter, Wright, Morris & Arthur, Columbus, Ohio, David A. Copus, Seyfarth, Shaw, Fairweather & Geraldson, Lee E. Miller, Washington, D.C., for defendant-appellee.

Before EDWARDS, Chief Judge, and MERRITT and BROWN, Circuit Judges.

BAILEY BROWN, Circuit Judge.

The principal question presented by this appeal is whether § 706(f)(2) of Title VII of the Civil Rights Act of 1964 (as amended), 42 U.S.C. § 2000e-5(f) (2), which authorizes the Equal Employment Opportunity Commission ("EEOC" or "the Commission") to sue for temporary injunctive relief when a charge has been 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 the Act," permits the issuance of a preliminary injunction without the traditional showing of irreparable injury. The Commission brought this action requesting a preliminary injunction requiring the appellee, Anchor Hocking Corporation, to reinstate the intervenor, Earl Murry, to the position from which he had been discharged, allegedly in retaliation for his participation in proceedings before the EEOC and opposition to practices made unlawful by Title VII. The district court held that § 706(f)(2) required a showing of irreparable harm and that the Commission and Murry had failed to make such a showing. The EEOC and Murry appealed pursuant to 28 U.S.C. § 1292(a)(1). We agree with the district court and therefore affirm.

The events leading up to this appeal began on August 10, 1979, when Daisy Flowers, president of the Lancaster, Ohio, chapter of the NAACP, filed a charge with the EEOC on behalf of Anchor Hocking employees. The charge contained broad allegations of racial discrimination against its employees by Anchor Hocking and specified three persons, including Earl Murry, as victims of discrimination.

Murry, a black male, had been employed by Anchor Hocking for nearly ten years and was its highest ranking black employee. As "Corporate Director of Employee Affairs," it was his duty to monitor Anchor Hocking's equal employment program, including investigating, reporting on, and recommending resolution of employee complaints, and responding to outside complaints. He was the ombudsman for black employees.

After Anchor Hocking received the Flowers charge, its general counsel questioned Murry about his involvement with the charge. Murry denied having authorized his name to appear therein. He was requested to take affirmative steps to disassociate himself from the charge, which he did.

On December 4, 1979, Murry was questioned under oath by Anchor Hocking officials before a court reporter about his involvement in the Flowers charge and an earlier charge that had been filed with the EEOC. Immediately afterwards, Murry was suspended with pay for thirty days. He remained on suspension until February 1, 1980, when he was terminated. Anchor Hocking asserts that the reason for Murry's discharge was that he had used confidential and privileged information gathered in the course of his employment to bring charges against Anchor Hocking with the EEOC and the Office of Federal Contract Compliance, and thus he was guilty of conflict of interest. Anchor Hocking also contends that Murry lied under oath when questioned about his involvement in these charges.

On February 8, 1980, Murry filed a charge with the EEOC against Anchor Hocking alleging unlawful retaliation. On February 21, 1980, the EEOC filed this action for preliminary relief, alleging that Murry's reinstatement was necessary to an effective investigation of the pending charges, for if he were not reinstated, it was alleged, black employees at Anchor Hocking would be reluctant to cooperate in the investigation. Murry filed a motion to intervene, which the district court granted.

At the hearing on the application for a preliminary injunction, the EEOC presented testimony from five Anchor Hocking employees, each of whom testified that, though not yet asked, he would be hesitant to cooperate with the EEOC because of fear of retaliation by Anchor Hocking. On the other hand, Barbara Spotts, an EEOC investigator assigned to the Flowers charge, testified that she had not detected a lack of cooperation from Anchor Hocking employees that she had contacted. The investigation was just beginning when the district court held its hearing.

The district court, Duncan, J., denied the motion for a preliminary injunction. The court held that § 706(f)(2) upon which the EEOC relies requires a showing of irreparable injury before preliminary relief may be granted ¹ and that neither the EEOC nor Murry had made such a showing. 23 FEPC 81 (April 7, 1980).

With regard to Murry, the court relied on Sampson v. Murray, 415 U.S. 61, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974), for the proposition that a discharge from employment will seldom rise to the level of irreparable harm. The court also noted that the statutory remedies of reinstatement and back pay would be available to Murry if his claim were successful on the merits.

With regard to the EEOC, the court found that there had been no showing that Murry's discharge had yet impeded its investigative functions. The court stated that the testimony of the five Anchor Hocking employees that they would be reluctant to cooperate with the investigation was "speculative" and that the Commission needed to show that its investigation was actually being obstructed before preliminary relief would be warranted.

On appeal, the Commission and Murry argue that the district court applied an incorrect legal standard in denying the preliminary injunction to the EEOC. ² They contend that a showing of irreparable harm is not a prerequisite to the EEOC's obtaining a preliminary injunction under § 706(f)(2) and urge this court to remand to the district court for a determination of whether the other requirements for a preliminary injunction are present, i.e., whether there was likelihood of success on the merits, whether the issuance of a preliminary injunction would cause substantial harm to others, and whether the public interest would be served by issuing the preliminary injunction. Mason County Medical Association v. Knebel, 563 F.2d 256, 261 (6th Cir. 1977). The EEOC and Murry contend, alternatively, that the district court was clearly erroneous in finding that they had not shown irreparable injury and urge that it be reversed on that basis.

Section 706(f)(2) provides, in relevant part:

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.

42 U.S.C. § 2000e-5(f)(2) (1976).

On its face, the statute does not indicate whether or not a showing of irreparable injury is a prerequisite to the grant of a preliminary injunction. The EEOC contends, however, that § 706(f)(2) contains its own standard for determining when injunctive relief should be granted. The Commission argues that the language empowering it to bring an action for injunctive relief "(w) henever ... the Commission concludes ... that prompt judicial action is necessary to carry out the purposes of the Act" by clear implication places the primary responsibility of determining the necessity of preliminary relief on the Commission. The EEOC therefore asserts that courts must grant relief under § 706(f)(2) whenever the EEOC demonstrates that: ³

(a) a charge of discrimination was filed;

(b) after conducting a preliminary investigation, the Commission has concluded that prompt judicial action is necessary to carry out the purposes of the Act; and (c) there is a prima facie case establishing that defendant is likely to have committed serious violations of the Act which will, if not enjoined, frustrate its purposes.

We do not believe, however, that the language of § 706(f)(2) on its face can be so construed. The statute does not state that an injunction must be granted whenever the Commission determines that prompt judicial action is necessary. On the other hand, the statute does not require a prima facie showing of a violation of Title VII. It appears to us that the EEOC could just as plausibly argue that the statute does not require a prima facie showing of a violation as it does argue that the statute does not require a showing of irreparable injury, and yet the EEOC concedes that the statute, properly construed, requires a showing of such a violation. By its terms the statute merely authorizes the EEOC, upon making a determination that prompt judicial action is necessary, to bring an action for "appropriate" relief. The decision whether relief is "appropriate" is left to the court. ⁴

Anchor Hocking likewise asserts that § 706(f)(2) contains a standard for determining whether an injunction should issue. Anchor Hocking reads the reference to Fed.R.Civ.P. 65 as incorporating into the statute the traditional equitable standards for preliminary injunctions....