E.E.O.C. v. First Nat. Bank of Jackson

• Decision Date: 02 April 1980
• Docket Number: No. 78-1357,78-1357
• Citation: 614 F.2d 1004
• Parties: 22 Fair Empl.Prac.Cas. 706, 22 Empl. Prac. Dec. P 30,808 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. FIRST NATIONAL BANK OF JACKSON, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1004

614 F.2d 1004

22 Fair Empl.Prac.Cas. 706,

22 Empl. Prac. Dec. P 30,808

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. FIRST NATIONAL BANK OF JACKSON, Defendant-Appellee.

No. 78-1357.

United States Court of Appeals, Fifth Circuit.

April 2, 1980.

Mary Helen Mautner, Lutz Alexander Prager, Susan Buckingham Reilly, Attys., Washington, D. C., for plaintiff-appellant.

Fuselier, Ott, McKee & Flowers, M. Curtiss McKee, Armin J. Moeller, Jr., Jackson, Miss., for defendant-appellee.

Appeal from the United States District Court for the Southern District of Mississippi.

Before MORGAN, REAVLEY and HATCHETT, Circuit Judges.

HATCHETT, Circuit Judge:

This appeal raises the question of whether an employer charged with discrimination in a Title VII action may counterclaim or present affirmative defenses sounding in tort. We reverse, holding that such an employer may not counterclaim or defend based on tort claims.

Appellant, Equal Employment Opportunity Commission, brought this suit in 1975 after its investigation of a charge of discrimination filed by George Brister, a black man. The EEOC determined that there was reasonable cause to believe that the bank had discriminated against blacks and black males, but not against Brister individually. The EEOC brought suit under § 706(b) of Title VII. Appellee, First National Bank of Jackson, filed an answer, including affirmative defenses and a counterclaim. The bank asserted that the suit was maliciously brought, in conspiracy with Brister, whom the district court described as a "chronic complainer." ¹ In connection with the responsive pleadings, the bank sought discovery regarding information about Brister, which is allegedly contained in approximately 45 different investigative files of the Jackson District Office of the EEOC concerning approximately 45 charges brought by Brister against other employers. When EEOC failed to comply with this discovery request, in contravention of an order by a United States Magistrate, the district court dismissed the action with prejudice and awarded attorney's fees and costs to the bank.

The district court held that the bank's counterclaim, which was in the nature of a charge of malicious prosecution, was authorized pursuant to the Federal Tort Claims Act. The district court ruled that the Federal Tort Claims Act constituted a waiver of sovereign immunity. The trial court also stated that the claims were actually recoupments, and were compulsory under the Federal Rules of Civil Procedure.

The primary issue in this case is whether the trial court abused its discretion in dismissing the appellant's suit as a discovery sanction.

Rule 37 of the Federal Rules of Civil Procedure provides trial courts with the means and power to enforce compliance with the rules of discovery through a broad choice of remedies and penalties. ²

In Emerick v. Fenick Industries, 539 F.2d 1379, 1381 (5th Cir. 1976), this court stated:

The discretion of the district court to order sanctions under Rule 37(b)(2) is broad but not unlimited. The due process clause of the fifth amendment limits the power of courts to dismiss an action without affording a party the opportunity for a hearing on the merits of his cause. Societe Internationale v. Rogers, 357 U.S. 197, 78 S.Ct. 1087, 2 L.Ed.2d 1255 (1958). When the disobedient party is a plaintiff, dismissal with prejudice is a sanction of last resort, applicable only in extreme circumstances. Thomas v. United States, 531 F.2d 746, 749 (5th Cir. 1976); Bon Air Hotel, Inc. v. Time, Inc., 376 F.2d 118 (5th Cir. 1967). When the disobedient party shows that his recalcitrance was based on factors beyond his control or on the exercise of constitutional privilege, a reviewing court is justified in terming the dismissal an abuse of discretion. See Thomas v. United States, supra; Dorsey v. Academy Moving & Storage, 423 F.2d 858, 861 (5th Cir. 1970). (footnote omitted)

539 F.2d at 1381.

In reviewing the trial court's actions, we are mindful that if the disputed information was not properly discoverable, it follows that the district court should not have imposed a Rule 37 sanction upon appellant for refusing to reveal the information. Dunbar v. United States, 502 F.2d 506 (5th Cir. 1974).

The district court's compelling discovery was founded on the premise that the counterclaim was viable. We do not agree. The district court's view that the bank's counterclaim was authorized by the Federal Tort Claims Act is erroneous. That the bank's counterclaim sounded in malicious prosecution was not contested by either of the parties. ³ The bank charged that the purpose of the EEOC's lawsuit was to "defraud, vex, and harass" the bank and other employers "maliciously and for ulterior purposes" by means of "unlawfully conceived, groundless, vexatious, and fraudulent charges."

The United States cannot be sued unless it specifically consents to be sued, either by specific statutory consent, United States v. Shaw, 309 U.S. 495, 60 S.Ct. 659, 84 L.Ed. 888 (1940), or by instituting a suit as to which a defendant may plead matters in recoupment. Frederick v. United States, 386 F.2d 481 (5th Cir. 1967). While the Federal Tort Claims Act waives immunity as to certain types of tort claims against the United States, the bank's claims fall squarely within the Act's express exceptions. By its own terms, the Federal Tort Claims Act does not apply to "(a)ny claim arising out of . . . false imprisonment, false arrest, malicious prosecution (or) abuse of process . . . ." 28 U.S.C. § 2680(h).

The bank's assertion that the proviso in § 2680(h) which deletes the exception for investigative or law enforcement officers is applicable to the EEOC is without merit. Investigative or law enforcement officers are defined in § 2680(h) as "any officer of the United States who is empowered by law to execute searches, to seize evidence, or to make arrests for violation of Federal law." Under § 709(a) of Title VII, the EEOC's agents are given the power to: "at all reasonable times have access to, for the purpose of examination, and the right to copy any evidence of any person being investigated or proceeded against that relates to unlawful employment practices covered by (the Act)." They are not, however, given authority to execute searches, seize evidence, or make arrests for violation of federal law. The bank has not cited any authoritative interpretation of the meaning of "investigative or law enforcement officers" which would cause this court to reject the plain meaning given to these terms by the statutory definition itself. See Caruth v. United States, 566 F.2d 901 (5th Cir. 1978).

The district court's ruling that the counterclaim was maintainable in recoupment is also erroneous. To state a claim in recoupment, a counterclaim must assert a claim arising out of the same transaction or occurrence which is the subject matter of the government's suit and seek relief only to the extent of diminishing or defeating the government's recovery. Frederick v. United States, 386 F.2d 481 (5th Cir. 1967). "A defendant's claim arising out of the same transaction or occurrence as that on which the plaintiff seeks recovery may be recouped, but there can be no recoupment if the damages claimed by the defendant arise from the breach of an independent contract or from an independent wrong unconnected with the plaintiff's cause of action. . . ." 20 Am.Jur.2d § 69. Although the bank's counterclaim has some connection to the EEOC's suit, we deem that connection as being too tenuous and indirect to warrant the innovation of the doctrine of recoupment. Indeed, it is only where the plaintiff has no valid claim that a defendant may maintain a suit for malicious prosecution. 52 Am.Jur. § 29.

The bank's charge of harassment by appellant cannot be considered an affirmative defense. Assuming that the bank's allegations of malicious prosecution are meritorious, they could not constitute an affirmative defense to alleged Title VII violations. An affirmative defense is not valid if it appears to a certainty that the plaintiff would succeed despite any set of facts which could be...