E.E.O.C. v. K-Mart Corp., K-MART
| Decision Date | 08 December 1982 |
| Docket Number | 82-1909,K-M,Nos. 81-1722,K-MART,s. 81-1722 |
| Citation | 694 F.2d 1055 |
| Parties | 30 Fair Empl.Prac.Cas. 788, 30 Empl. Prac. Dec. P 33,212 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v.CORPORATION andart Enterprises, Inc., Defendants-Appellees. In re EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Petitioner. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Carol Cresswell Moschandreas, Equal Employment Opportunity Commission, Washington, D.C., for plaintiff-appellant.
Equal Employment Opportunity Advisory Counsel, Douglas S. McDowell, McGuiness & Williams, Washington, D.C., for amicus curiae.
Richard T. Sampson-Kathleen Pontone, Semmes, Bowen & Semmes, Baltimore, Md., Peter J. Palmer, K-Mart Corp., International Headquarters, Troy, Mich., for defendants-appellees.
Before KEITH and JONES, Circuit Judges, and MILES *, Chief District Judge.
A judge of the United States District Court for the Eastern District of Michigan issued an order requiring the Equal Employment Opportunity Commission ("EEOC") to produce former EEOC Commissioner Ethel Bent Walsh and certain current EEOC employees for deposition. The EEOC petitions this Court for a writ of mandamus ordering the district court to vacate that discovery order. For the reasons below, we grant the writ of mandamus and vacate the district judge's order. 526 F.Supp. 121.
On September 28, 1979, former EEOC Commissioner Ethel Bent Walsh filed a charge of discrimination against the K-Mart Corporation and K-Mart Enterprises ("K-Mart"). Walsh alleged that she had cause to believe that K-Mart discriminated against Blacks, Hispanics, and women in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. Sec. 2000e et seq. (1976). 1 Specifically, Walsh alleged that K-Mart practiced unlawful racial and sexual discrimination in its recruiting, hiring, job classification, job assignment, promotion and job segregation. Walsh did not state the dates on which these alleged acts of discrimination occurred. She did, however, make these allegations under oath.
In October 1980, the EEOC issued two administrative subpoenas to K-Mart. The EEOC requested the production of various documents, and the production of a K-Mart executive for deposition. 2 On October 29 1980, K-Mart filed a petition with the EEOC seeking to revoke or modify the administrative subpoenas.
On December 4, 1980, Walsh amended her original charge in response to the Ninth Circuit's decision in EEOC v. Dean Witter Co., 643 F.2d 1334 (9th Cir.1980). 3 In Dean Witter, a subpoena enforcement action, the Court held that a charge which stated that the alleged discriminatory employment practices were "continuing" was insufficient to meet the "date" requirement of Section 706(b) of Title VII, 42 U.S.C. Sec. 2000e-5(b). Section 706(b) requires that the EEOC serve upon an employer charged with unlawful employment practices a "notice of the charge (including the date, place, and circumstances of the alleged unlawful employment practice)" 42 U.S.C. Sec. 2000e-5, as amended. Thus, the Court denied enforcement of an administrative subpoena which the EEOC had issued to the employer.
In her amended charge, Walsh stated that "[w]hen I signed the charge, I intended to cover all the unlawful employment practices identified therein occurring from July 2, 1965, continuing through at least the date of the charge, and I believed that the charge as written did cover that time period." App. 23. She also stated that "... to clarify any possible ambiguity that may exist in view of the [Dean Witter] decision, I ... amend my original charge, which is incorporated here by reference, to state that I have reason to believe that the named employers have engaged in the identified unlawful employment practices on a continuing basis from July 2, 1965 until the present." Id. This amended charge was also under oath.
On February 27, 1981, the EEOC denied K-Mart's request to modify or revoke the administrative subpoenas. K-Mart appealed to the General Counsel's Office of the EEOC, and the subpoena was modified. 4 Despite this modification, K-Mart, in a letter dated May 8, 1981, informed the EEOC that it would not comply with the administrative subpoenas.
On May 11, 1981, the EEOC filed this action in the United States District Court for the Eastern District of Michigan to enforce the administrative subpoenas. That same day, the court issued an Order to Show Cause why K-Mart should not comply with the subpoenas. A hearing was scheduled for May 22, 1981 before a United States Magistrate.
On May 20, 1981, K-Mart noticed the depositions of former EEOC Commissioner Walsh and certain EEOC employees who had been involved in the decisions to issue the charge and the administrative subpoenas to K-Mart. On May 26, 1981, the EEOC moved the district court for a protective order prohibiting K-Mart from taking the depositions of Walsh and the EEOC employees. This matter was also referred to the magistrate.
On June 5, 1981, the magistrate denied the EEOC's request for a protective order. The magistrate did, however, limit the scope of the proposed depositions to matters relating to 1) the date of the alleged unlawful acts; 2) the standard employed for making the decision to issue the charge of unlawful discrimination; and 3) the general type or kind of information the EEOC possessed before the charges were issued. He also noted that the EEOC need not produce any documents.
The EEOC objected to the Magistrate's Report and Recommendation. The EEOC moved the district court to reconsider the magistrate's order allowing discovery. This motion was denied on August 27, 1981. The EEOC filed a Motion for Clarification of the August 27 order. The EEOC sought to have the district court include findings of fact and conclusions of law which would indicate that discovery was necessary.
On October 27, 1981, the district court reaffirmed its earlier order requiring that the EEOC make Walsh and the other designated employees available for deposition. Thereafter, K-Mart issued subpoenas for depositions to Walsh and the other EEOC employees.
On November 6, 1981, the EEOC simultaneously sought certification for an interlocutory appeal of the discovery order under 28 U.S.C. Sec. 1292(b), and a stay of the October 27, 1981 order. That same day, the district court denied the motion for stay, and the EEOC appealed the denial of the motion for a stay to this Court. The EEOC immediately applied to the district court for a stay pending this appeal.
On November 9, 1981, Walsh was scheduled to appear at the Washington, D.C. offices of K-Mart's counsel for a deposition at 10 a.m. However, the deposition never occurred. That morning, the EEOC applied to the United States District Court for the District of Columbia for a stay of K-Mart's subpoena. The EEOC appeared before District Judge Thomas A. Flannery and obtained a stay of the subpoena. That same day, the EEOC sought a stay pending appeal, or, in the alternative, a petition for mandamus from this Court. Also on this date, the EEOC filed a Notice of Appeal from the district court's August 27, and October 27, 1981 orders, and the Magistrate's June 5, 1981 order.
On November 11, 1981, the Honorable Nathaniel R. Jones of this Court referred the motion for a stay pending appeal and the petition for a writ of mandamus to a three-judge motions panel for its consideration. Judge Jones stayed the district court's order pending the three-judge panel's disposition of this matter.
On January 7, 1982, K-Mart moved this Court to dismiss the appeal and the petition for a writ of mandamus, and to vacate the stay granted by Judge Jones. K-Mart alleged that the discovery order was not appealable, and that the EEOC's notice of appeal was untimely. K-Mart also alleged there was no petition for mandamus before this Court, that any petition was untimely filed, and that mandamus relief was not available in this case. On January 28, 1982, the EEOC conceded that its appeal was untimely, but continued to maintain that this Court should issue a writ of mandamus.
A motions panel of this Court concluded that portions of the EEOC's emergency motion for a stay and statements contained in its petition and brief were sufficient to bring the petition for mandamus relief before this Court. Moreover, because the case presented a question of first impression, the panel agreed to accept jurisdiction over this case. Accordingly, the panel extended the emergency stay and referred K-Mart's motion to dismiss to the panel designated to hear this case.
The threshold question on appeal is whether this Court has jurisdiction. K-Mart moved this Court to dismiss the EEOC's appeal and the petition for a writ of mandamus. We will consider each alleged jurisdictional defect separately.
K-Mart argues that this Court does not have jurisdiction over this appeal because 1) the appeal was not timely filed pursuant to Rule 4(a)(1), Fed.R.App.P.; 2) the appeal has no effect under Rule 4(a)(4), Fed.R App.P., since it was filed during the pendency of a motion to amend the district court's order to certify the appeal under 28 U.S.C. Sec. 1292(b); and 3) the order granting limited discovery of former Commissioner Walsh and the designated EEOC employees was not an appealable order.
The EEOC concedes that this appeal was untimely pursuant to Rule 4(a)(1). A timely notice of appeal is a mandatory jurisdictional requirement. Browder v. Director, Department of Corrections of Illinois, 434 U.S. 257, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978). Therefore, we have no jurisdiction over an appeal in this case because it was not timely filed.
K-Mart argues that the EEOC's petition for a writ of mandamus should be dismissed because: 1) a petition for a writ of mandamus is not before this Court; 2) assuming a petition was before this Court, that...
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