E.E.O.C. v. Cuzzens of Georgia, Inc.
| Decision Date | 27 December 1979 |
| Docket Number | No. 77-3147,77-3147 |
| Citation | 608 F.2d 1062 |
| Parties | 21 Fair Empl.Prac.Cas. 803, 21 Empl. Prac. Dec. P 30,539 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. CUZZENS OF GEORGIA, INC., Defendant-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Lutz A. Prager, E. E. O. C., Abner W. Sibal, Gen. Counsel, Joseph T. Eddins, Jr., Assoc. Gen. Counsel, Leopoldo Fraga, Jr., Atty., Philip B. Sklover, Atty., E. E. O. C., Washington, D. C., for plaintiff-appellant.
J. Timothy White, J. Michael Lamberth, Atlanta, Ga., for defendant-appellee.
Appeal from the United States District Court for the Northern District of Georgia.
Before COLEMAN, Chief Judge, KRAVITCH and HENDERSON, Circuit Judges.
On January 22, 1975, Raymond A. Sneed, Jr. filed a charge with the Equal Employment Opportunity Commission (EEOC) alleging that his employer, Cuzzens of Georgia, Inc. (Cuzzens) had violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-9. After Cuzzens refused to allow the EEOC to examine company documents connected with the charge, the EEOC issued a subpoena duces tecum for those documents. Cuzzens made no attempt administratively to modify or quash the subpoena. Upon application by the EEOC, the District Court ordered Cuzzens to show cause why the subpoena should not be enforced. The trial court then denied enforcement on the ground that the statute did not apply to Cuzzens.
The EEOC argues (1) that it, not the District Court, has the initial authority to determine whether an employer charged with violating Title VII is covered by that statute; (2) that Cuzzens' failure to exhaust administrative remedies precluded it from raising defenses to the subsequent judicial enforcement of the subpoena; and (3) that the District Court erred by applying the improper standards to determine whether there was statutory coverage. We reverse and remand.
In New Orleans Public Service, Inc. v. Brown, 5 Cir. 1975, 507 F.2d 160, where we reversed a trial court order denying enforcement of an EEOC subpoena, we stated, "(I)t is for the agency rather than a district court to determine in the first instance the question of the coverage in the course of the preliminary investigation into possible violations." Id. at 165. In the instant case denying enforcement of the subpoena hindered the EEOC's investigation of both the charge and the question of coverage.
The EEOC provides an administrative remedy whereby Cuzzens could have sought to modify or quash the subpoena. This remedy incorporates the same procedure employed by the National Labor Relations Board. § 11(1) of the National Labor Relations Act, 29 U.S.C. 161(a). Under this procedure the person served with the subpoena may, within five days of service, challenge the subpoena by filing a petition for revocation. A procedure for appeals within the EEOC is also provided. An application for enforcement of a subpoena may not be heard in the District Court until after the person served has had the opportunity to exhaust this administrative remedy. Hortex Manufacturing Co. v. NLRB, 5 Cir. 1966, 364 F.2d 302.
Generally, one who has neglected the exhaustion of available administrative remedies may not seek judicial relief. See Samaniego v. Brownell, 5 Cir. 1954, 212 F.2d 891, 894; Bedenbaugh v. National Surety Corporation, 5 Cir. 1955, 227 F.2d 102, 104; and III Davis, Administrative Law, § 20.08 (1958).
However, Cuzzens did not initiate judicial proceedings for modification or quashing the subpoena. The EEOC applied for enforcement of its subpoena and Cuzzens appeared in court only to raise defenses to the enforcement. In such a situation, however, we see no sound legal reason for a rule different from that applicable where the employer goes into court without having exhausted administrative remedies. No Fifth Circuit case directly on point has been discovered but there are two decisions pointing in this direction.
In National Labor Relations Board v. Frederick Cowan and Company, Inc., 2 Cir. 1975, 522 F.2d 26, the NLRB appealed from a district court order denying...
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