E.E.O.C. v. Ocean City Police Dept., 85-1798

Decision Date24 June 1987
Docket NumberNo. 85-1798,85-1798
Citation820 F.2d 1378
Parties44 Fair Empl.Prac.Cas. 97, 43 Empl. Prac. Dec. P 37,235, 56 USLW 2016 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Appellee, v. OCEAN CITY POLICE DEPARTMENT, Appellant.
CourtU.S. Court of Appeals — Fourth Circuit

Scott L. Sherman (Richard T. Sampson, Kathleen Pontone, Semmes, Bowen & Semmes, Baltimore, Md., on brief), for appellant.

Mark S. Flynn, Asst. Gen. Counsel (Acting), (Johnny J. Butler, Gen. Counsel (Acting), Gwendolyn Young Reams, Associate Gen. Counsel (Acting), Susan Buckingham Reilly, Asst. Gen. Counsel, Peggy R. Mastroianni, Washington, D.C., on brief), for appellee.

Before WINTER, Chief Judge, RUSSELL, WIDENER, HALL, PHILLIPS, SPROUSE, ERVIN, CHAPMAN, WILKINSON, WILKINS, Circuit Judges, and HAYNSWORTH, Senior Circuit Judge.

WIDENER, Circuit Judge:

The Ocean City Police Department (the Department) appeals from the district court's order, see 617 F.Supp. 1133, enforcing a subpoena duces tecum to the Department pursuant to section 710 of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e-9. We deny enforcement of the subpoena.

The subpoena duces tecum was issued in connection with a charge of racial discrimination filed against the Department by Keith L. Wright, a black male who was employed by the Department as a police officer from September 15, 1980 until his discharge on April 14, 1981. On December 21, 1981, 251 days after he was terminated, Wright filed a charge of discrimination with EEOC.

On December 6, 1983, EEOC issued a subpoena duces tecum to the Department requesting production of certain documents it alleged were necessary to its investigation of Wright's claim. The Department refused to turn over the documents and filed a petition to revoke or modify the subpoena, which was denied by EEOC. On March 19, 1984, the Department filed an administrative appeal, which also was denied. As a consequence of the Department's continued refusal to comply with the subpoena, EEOC initiated this subpoena enforcement proceeding in the United States District Court for the District of Maryland.

The Department opposed enforcement on the ground that Wright had failed to file a timely charge of discrimination, and that EEOC was therefore without authority to investigate the charge. Following a non-evidentiary hearing, the district court held that the charge had been timely filed and granted EEOC's application for enforcement of the subpoena. Subsequently, the district court granted the Department's motion to stay enforcement pending the outcome of this appeal.

On appeal, a panel of this court upheld the order, but for reasons different from those relied on by the district court. Although the panel noted that, under Dixon v. Westinghouse Electric Corp., 787 F.2d 943 (4th Cir.1986), the charge in question had not been timely filed, 1 it nevertheless held that the district court had properly enforced the subpoena because "the timeliness of the charge was not properly before the lower court in this subpoena enforcement proceeding." 2 Subsequently we granted the Department's petition for rehearing en banc and, in disagreement with the panel, we reverse.

The general rule is that in a proceeding to enforce an administrative subpoena "the role of the district court ... is sharply limited." EEOC v. South Carolina National Bank, 562 F.2d 329, 332 (4th Cir.1977). The justification for limiting the district court's role is one of efficiency. It would unnecessarily delay administration of statutes to conduct a trial within a trial at the discovery stage where the same issues may later be raised on the merits. Issues such as the scope of administrative regulations are for the enforcing agency to determine in the first instance, and a subpoena enforcement proceeding is not the proper place to challenge the agency's determination. See, e.g., Endicott Johnson Corp. v. Perkins, 317 U.S. 501, 507-09, 63 S.Ct. 339, 342-43, 87 L.Ed. 424 (1943).

Nevertheless, the district court is not merely a rubber stamp in an enforcement proceeding, and this is true although enforcement is sought by EEOC. Congress intended to limit EEOC's investigative power to the access to information relevant to specific charges brought under Title VII. As the court noted in EEOC v. Shell Oil Co., 466 U.S. 54, 104 S.Ct. 1621, 80 L.Ed.2d 41 (1983), the "EEOC's investigative authority is tied to charges filed with the Commission; unlike other federal agencies that possess plenary power to demand to see records relevant to matters within their jurisdiction [e.g., the Federal Trade Commission, the Court noted in a footnote], the EEOC is entitled to access only to evidence 'relevant to the charge under investigation.' Sec. 2000e-8(a)." 466 U.S. at 64, 104 S.Ct. at 1629.

The significance of the timeliness of the charge was not before the court in Shell Oil. In that case the employer defended enforcement of an EEOC subpoena on the ground that the charge did not contain information sufficient to satisfy Sec. 706(b) of Title VII, 42 U.S.C. Sec. 2000e-5(b). Although the Court found that the requirements of Sec. 706(b) had been met, it held that a charge meeting the requirements of Sec. 706(b) was a "jurisdictional prerequisite to judicial enforcement of a subpoena issued by the EEOC." Id. at 65, 104 S.Ct. at 1629. The same result had earlier been reached in this circuit, as the Court noted, in EEOC v. Appalachian Power Co., 568 F.2d 354, 355 (4th Cir.1978).

In this case we are asked to order enforcement of an EEOC subpoena based on a charge which admittedly cannot be pursued for lack of timeliness. 3 This we decline to do. "In construing the EEOC's authority to request judicial enforcement of its subpoenas, we must strive to give effect to Congress' purpose in establishing a linkage between the Commission's investigatory power and charges of discrimination." Shell Oil, 466 U.S. at 65, 104 S.Ct. at 1629. The panel opinion recognized that Shell Oil established the rule that an EEOC subpoena may only be enforced if its underlying charge is valid. 4 However, the panel also apparently read Shell Oil as establishing that a charge need only meet the requirements of Sec. 706(b) to be valid. We disagree. As noted above, the question of timeliness was not before the court in Shell Oil, and there is no language in the opinion to indicate that the requirements of a valid charge were to be limited to those contained in Sec. 706(b). We think that requiring a subpoena to be based on a timely charge best gives effect to the Congressional policy of limiting EEOC's investigative powers by linking them to valid charges of discrimination. Therefore, we hold that a charge which shows on its face that it is untimely is also an invalid charge incapable of invoking EEOC's investigatory powers.

Ordinary logic indicates that it is beyond the authority of EEOC to investigate charges which cannot be pursued. EEOC is not empowered to conduct general fact-finding missions concerning the affairs of the nation's work force and employers. The only legitimate purpose for an EEOC investigation is to prepare for action against an employer charged with employment discrimination, or to drop the matter entirely if the Commission finds the charge to be unfounded. But if no action can be taken on the charge, there is no justification for an investigation absorbing the resources of both the employer and the Commission. It would be anomalous to hold that a charge that was invalid to support an action was nevertheless valid to support investigation, the sole purpose of which is preparation for the action. 5

This case should not be construed as affecting this court's decision in EEOC v. South Carolina National Bank, 562 F.2d 329 (4th Cir.1977). In that case the court reversed a district judge's decision to deny enforcement of an EEOC subpoena on the ground that it was based on an untimely charge. The charge in South Carolina National Bank differed critically from the one in this case, however. In South Carolina National Bank, the charge alleged a continuing violation. This meant that the charge could not have been untimely on its face, since the most recent unlawful employment practice alleged would not be the one specified in the charge. The court cited with approval Pacific Maritime Association v. Quinn, 491 F.2d 1294 (9th Cir.1974), which held that "it is not the function of the district court in an enforcement proceeding to determine the timeliness of a charge that may appear to be of a continuing nature." South Carolina National Bank, 562 F.2d at 332 (emphasis supplied). In the case at hand there is no allegation of a continuing violation, but rather an allegation of a single unlawful act on a specific date, or at the best for Wright of harassment ending on the same specific date. The difference is that here there are no facts in dispute relating to the timeliness of the charge, whereas in South Carolina National Bank the subpoena would have elicited information regarding the charge's timeliness. "The Commission wishes to subpoena material that will facilitate an informed judgment concerning the timeliness of this vague complaint, a judgment that is an essential part of its administrative task." 562 F.2d at 332. Obviously, as South Carolina National Bank holds, if the subpoena seeks information relating to the timeliness of the charge, the district court should not refuse enforcement on the ground of untimeliness. That is not the case here, however.

Nor do we think that Endicott Johnson Corp. v. Perkins, 317 U.S. 501, 63 S.Ct. 339, 87 L.Ed. 424 (1943), requires a different result. In that case the Secretary of Labor sought a subpoena duces tecum pursuant to the Walsh-Healey Public Contracts Act. The Secretary was only empowered to investigate plants covered by the Act, and the contractor maintained that certain plants as to which records were sought did not fall within the Act's...

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