E.E.O.C. v. Joseph Horne Co., Nos. 78-1695

CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)
Writing for the CourtBefore HAYNSWORTH, Chief Judge, and WINTER and HALL; WINTER; K. K. HALL
Citation607 F.2d 1075
Parties20 Fair Empl.Prac.Cas. 1752, 21 Empl. Prac. Dec. P 30,311 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Appellee, v. JOSEPH HORNE COMPANY, a Division of Associated Dry Goods Corporation, Appellant. ASSOCIATED DRY GOODS CORPORATION, Appellee, v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Appellant.
Docket NumberNos. 78-1695,78-1696
Decision Date10 October 1979

Page 1075

607 F.2d 1075
20 Fair Empl.Prac.Cas. 1752,
21 Empl. Prac. Dec. P 30,311
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Appellee,
v.
JOSEPH HORNE COMPANY, a Division of Associated Dry Goods
Corporation, Appellant.
ASSOCIATED DRY GOODS CORPORATION, Appellee,
v.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Appellant.
Nos. 78-1695, 78-1696.
United States Court of Appeals,
Fourth Circuit.
Argued April 4, 1979.
Decided Oct. 10, 1979.

Raj K. Gupta, E.E.O.C., Washington, D. C. (Abner W. Sibal, Gen. Counsel, Joseph T. Eddins, Associate Gen. Counsel, Beatrice

Page 1076

Rosenberg, Asst. Gen. Counsel, Washington, D. C., on brief), for E.E.O.C.

Roger S. Kaplan, New York City (Richard W. Schey, Jackson, Lewis, Schnitzler & Krupman, New York City, on brief), for Joseph Horne Co. and Associated Dry Goods Corp. (Robert E. Williams, Douglas S. McDowell, Frank C. Morris, Jr., McGuiness & Williams, Washington, D. C., on brief), as amicus curiae.

Before HAYNSWORTH, Chief Judge, and WINTER and HALL, Circuit Judges.

WINTER, Circuit Judge:

In these consolidated cases, the Equal Employment Opportunity Commission (EEOC) sought to enforce its administrative subpoena Duces tecum to obtain information about the employment practices of Joseph Horne Company (Horne), a wholly owned subsidiary of Associated Dry Goods Company (Associated), with regard to race and sex, and Associated sought to challenge the validity of certain practices of EEOC relating to disclosure of EEOC investigative files to charging parties both by a suit for declaratory and injunctive relief and by resistance to the subpoena. The district court held that the EEOC procedural regulations set forth in 29 C.F.R. §§ 1601.20 and 1601.17(d) and the special disclosure rules contained in § 83 of the EEOC Compliance Manual were void, invalid and unenforceable to the extent that they authorize EEOC to disclose to charging parties any information in EEOC investigative files. It therefore enjoined such disclosures and it granted enforcement of the subpoena subject to this registration on the use of the data to be obtained. Finally, Associated's request for attorneys' fees was denied.

Both parties appeal, and we affirm.

I.

From November 1971 through June 1973, several employees and former employees of Horne filed race and sex discrimination charges with EEOC. The latter undertook to investigate the charges and it served interrogatories on Horne, seeking relevant information. Horne, however, refused to answer the interrogatories without assurances from EEOC that the answers would not be disclosed to the charging parties, their attorneys, or others. EEOC's view of its authority and its policy is directly to the contrary, See 29 C.F.R. §§ 1601.20 (current version at 29 C.F.R. § 1601.22) and 1601.17(d); § 83 of EEOC Compliance Manual, and it declined to give the requested assurances. EEOC therefore issued a subpoena Duces tecum to obtain the information. Horne petitioned EEOC to revoke the subpoena. At the time, EEOC had three commission members, two of whom affirmatively approved the decision not to revoke it. When Horne's petition was denied, Horne did not comply with the subpoena; but Associated filed an action challenging the Commission's disclosure policies and seeking declaratory and injunctive relief. EEOC in turn instituted suit to enforce compliance with its subpoena and the cases were consolidated and decided together.

II.

The first issue that we must address is Associated's argument that the subpoena was invalidly issued because EEOC lacked a quorum when it denied Horne's petition to revoke the subpoena. Its argument is premised upon the fact that the Commission has a statutory size of five members, 42 U.S.C. § 2000e-4(a), with a direction that three shall constitute a quorum, 42 U.S.C. § 2000e-4(c), and the record shows that only two commissioners voted in writing to deny the petition to revoke the subpoena, notwithstanding that 29 C.F.R. § 1601.15(b) (1975) in effect at the time provided that a petition to revoke a subpoena shall be reviewed by the Commission. The district court was of the view that since the two votes approving denial of the petition would likely have prevailed in any event, any absence of the third member was immaterial and only a De minimis deviation from EEOC's then regulation.

We are in essential agreement with the district court. We have heretofore approved the validity of the regulation which

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permits the Compliance Director's determination of whether to permit a subpoena to issue to prevail unless the Commission decides otherwise. EEOC v. South Carolina National Bank, 562 F.2d 329, 333 (4 Cir. 1977). Under the regulation, the members of the Commission need take affirmative action only if they conclude to reverse the Compliance Director's determination. Here the record shows that a majority of the then Commission voted to sustain issuance of the subpoena so that the subpoena would have issued regardless of the vote of the third member. Since we view a vote on the correctness of the Compliance Director's determination not a consultive act requiring an exchange of views, we think it makes no difference to the validity of the subpoena that the record does not show a vote by the third member.

III.

The Commission appeals from the determination that the disclosure to charging parties and their attorneys of investigative materials prior to suit is in violation of 42 U.S.C. § 2000e-5(b) and 2000e-8(e), and therefore 29 C.F.R. §§ 1601. 20 (current version at 29 C.F.R. § 1601.22) and 1601.17(d) and the special disclosure rules of § 83 of EEOC Compliance Manual are void to the extent that they provide otherwise.

The restrictions upon disclosure by EEOC of investigative information contained in §§ 2000e-5(b) and 2000e-8(e) and their effect upon the validity of EEOC's regulations and Compliance Manual have been thoroughly considered by three Courts of Appeals with conflicting conclusions. The Fifth Circuit in H. Kessler & Co. v. EEOC, 472 F.2d 1147 (5 Cir. 1973) (in banc), a case on which EEOC heavily relies, held that charging parties and their attorneys are not members of the "public" within the meaning of the restrictive statutory language and consequently the regulations and the Compliance Manual do not exceed the statute and thus are valid and enforceable. The District of Columbia Circuit in Sears, Roebuck & Co. v. EEOC, 189 U.S.App.D.C. 163, 581 F.2d 941 (D.C. Cir. 1978), a case on which the district court in the instant case relied, and the Seventh Circuit in Burlington Northern, Inc. v. EEOC, 582 F.2d 1097 (7 Cir. 1978), Cert. denied, 440 U.S. 930, 99 S.Ct. 1267, 59 L.Ed.2d 486 (1979), reached the opposite conclusion. While Sears and Burlington attempted to distinguish Kessler (unpersuasively, we think), they also declined to follow it if it were indistinguishable.

The analysis of the legal arguments, the legislative history and the policy considerations on both sides...

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7 practice notes
  • Associated Dry Goods Corp. v. EEOC, Civ. A. No. 75-0297-R.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • July 20, 1982
    ...to all counsel of record. --------Notes: 1 Associated Dry Goods Corp. v. EEOC, 454 F.Supp. 387 (E.D.Va.1978). 2 EEOC v. Joseph Horne Co., 607 F.2d 1075 (4th Cir. 3 EEOC v. Associated Dry Goods Corp., 449 U.S. 590, 101 S.Ct. 817, 66 L.Ed.2d 762 (1981). 4 29 C.F.R. § 1610.17 provides, in rele......
  • Equal Employment Opportunity Commission v. Associated Dry Goods Corporation, No. 79-1068
    • United States
    • United States Supreme Court
    • January 26, 1981
    ...that each employee filing a charge against Horne would see information in no file other than his or her own. Pp. 603-604. 4th Cir., 607 F.2d 1075, reversed and remanded. Barry Sullivan, Chicago, Ill., for petitioner. Roger S. Kaplan, New York City, for respondent. Page 592 Justice STEWART d......
  • Food Town Stores, Inc. v. E.E.O.C., No. 82-1564
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • June 28, 1983
    ...the law, then this court could not have entertained the challenge to the EEOC disclosure regulations in E.E.O.C. v. Joseph Horne Co., 607 F.2d 1075 (4th Cir.1979), rev'd sub nom., E.E.O.C. v. Associated Dry Goods Corp., 449 U.S. 590, 101 S.Ct. 817, 66 L.Ed.2d 762 We therefore conclude that ......
  • EQUAL EMPLOYMENT, ETC. v. University of Pittsburgh, Misc. No. 7653.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • March 26, 1980
    ...(7th Cir. 1978), cert. denied 440 U.S. 930, 99 S.Ct. 1267, 59 L.Ed.2d 486 (1979), and the Fourth Circuit in EEOC v. Joseph Horne Co., 607 F.2d 1075 (4th Cir. 1979), reached the opposite conclusion. The Third Circuit has not considered this The analysis of the legal arguments, the legislativ......
  • Request a trial to view additional results
7 cases
  • Associated Dry Goods Corp. v. EEOC, Civ. A. No. 75-0297-R.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • July 20, 1982
    ...to all counsel of record. --------Notes: 1 Associated Dry Goods Corp. v. EEOC, 454 F.Supp. 387 (E.D.Va.1978). 2 EEOC v. Joseph Horne Co., 607 F.2d 1075 (4th Cir. 3 EEOC v. Associated Dry Goods Corp., 449 U.S. 590, 101 S.Ct. 817, 66 L.Ed.2d 762 (1981). 4 29 C.F.R. § 1610.17 provides, in rele......
  • Food Town Stores, Inc. v. E.E.O.C., No. 82-1564
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • June 28, 1983
    ...the law, then this court could not have entertained the challenge to the EEOC disclosure regulations in E.E.O.C. v. Joseph Horne Co., 607 F.2d 1075 (4th Cir.1979), rev'd sub nom., E.E.O.C. v. Associated Dry Goods Corp., 449 U.S. 590, 101 S.Ct. 817, 66 L.Ed.2d 762 We therefore conclude that ......
  • Equal Employment Opportunity Commission v. Associated Dry Goods Corporation, No. 79-1068
    • United States
    • United States Supreme Court
    • January 26, 1981
    ...that each employee filing a charge against Horne would see information in no file other than his or her own. Pp. 603-604. 4th Cir., 607 F.2d 1075, reversed and remanded. Barry Sullivan, Chicago, Ill., for petitioner. Roger S. Kaplan, New York City, for respondent. Page 592 Justice STEWART d......
  • EQUAL EMPLOYMENT, ETC. v. University of Pittsburgh, Misc. No. 7653.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • March 26, 1980
    ...(7th Cir. 1978), cert. denied 440 U.S. 930, 99 S.Ct. 1267, 59 L.Ed.2d 486 (1979), and the Fourth Circuit in EEOC v. Joseph Horne Co., 607 F.2d 1075 (4th Cir. 1979), reached the opposite conclusion. The Third Circuit has not considered this The analysis of the legal arguments, the legislativ......
  • Request a trial to view additional results

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