E.E.O.C. v. South Carolina Nat. Bank, 76-1977
| Decision Date | 28 September 1977 |
| Docket Number | No. 76-1977,76-1977 |
| Citation | 562 F.2d 329 |
| Parties | 15 Fair Empl.Prac.Cas. 1141, 15 Empl. Prac. Dec. P 7858 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Appellant, v. SOUTH CAROLINA NATIONAL BANK, Appellee. |
| Court | U.S. Court of Appeals — Fourth Circuit |
John D. Schmelzer, E. E. O. C., Washington, D. C. (Abner W. Sibal, Gen. Counsel, Joseph T. Eddins, Associate Gen. Counsel, Beatrice Rosenberg, Asst. Gen. Counsel, E. E. O. C., Washington, D. C., on brief), for appellant.
J. Hamilton Stewart, III, Greenville, S. C. (Robert T. Thompson, Thompson, Ogletree & Deakins, Washington, D. C., on brief), for appellee.
Before BRYAN, Senior Circuit Judge, and WINTER and BUTZNER, Circuit Judges.
The Equal Employment Opportunity Commission appeals an order of the district court denying enforcement of a subpoena issued by the commission against the South Carolina National Bank. * The principal issue is whether the initial determination of the timeliness of a charge filed with the commission should be made by the district court or the commission. We conclude that this responsibility belongs to the commission and that the bank's other objections to the subpoena do not bar its enforcement. Accordingly, we reverse and remand the case for enforcement of the subpoena.
On December 29, 1971, Bernice H. Stone filed a complaint with the Atlanta office of the commission charging the bank with discrimination on the bases of race and sex for its failure to rehire her following a maternity leave. Stone stated that before she took the leave, the bank had advised her that it would guarantee her neither a job nor a specific salary level should she be rehired after her leave. She alleged that when she requested reinstatement, she was told no positions were available, but that a bank official would contact her when an opening occurred. Periodic inquiries with the bank elicited similar responses. She claimed that during this time, however, white employees were rehired who had gone on maternity leave after she had. She specified May 14, 1971, as the most recent date on which discrimination had taken place.
To comply with amendments enacted while the charge was pending, on March 27, 1972, the commission notified the bank that a charge of discrimination in the bank's hiring practices had been filed. Matters rested for two and a half years until the commission began investigating the complaint in September, 1974. It then sent the bank a copy of a newly verified and amended complaint alleging discrimination on "May 14, 1971, and continuing" and later provided a copy of the original complaint.
When the bank refused to provide pertinent records voluntarily, the commission issued a subpoena on May 14, 1975, seeking data about Stone and information about the bank's maternity leave policies and practices. The commission's director of compliance denied the bank's subsequent petition to revoke the subpoena. When the bank failed to produce its records, the commission unsuccessfully sought to have the subpoena enforced by the district court.
The district court ruled that the commission lacked jurisdiction to pursue its investigation because Stone's complaint was untimely filed as a matter of law. It found that the bank refused to reinstate Stone from her maternity leave on or before May 14, 1971. Since the charge was not filed until December 29, 1971, the court concluded that it was barred by the 180-day limitation prescribed by 42 U.S.C. § 2000e-5(e).
If the bank had done no more than deny Stone reemployment on May 14, 1971, her charge might well be considered untimely. See Reynolds v. Daily Press, Inc., 5 F.E.P. Cases 4, 5-6 (E.D.Va.1972). But Stone's allegations that the bank repeatedly promised to contact her when an opening occurred charge more than a simple refusal of reemployment. The sketchy record before us indicates that the bank's promise, while firm in assuring Stone that she would be considered for vacancies that occurred, was indefinite about the circumstances under which it would be kept. The bank appears to have assumed a continuing obligation to advise Stone of employment opportunities when a job became available. It is difficult to conclude, without more facts, that the bank was relieved of this duty after determining once or even several times that her services were not yet needed. It could have made its position clear by telling her flatly that she would not be reemployed, but according to the charge, it never did this. Nor on the present record is it clear that she should have been able to perceive that, on a certain date, the bank had ceased to consider her for employment as positions became available.
In sum, it is apparent that the issue of continuing discrimination in this case has not been fully explored. This brings us to the question of whether the district court or the commission should initially determine if the bank's alleged discrimination against Stone was of a continuing nature.
Title 42 U.S.C. § 2000e-9 confers on the commission and its agents investigatory powers similar to those of the National Labor Relations Board as set forth in 29 U.S.C. § 161. This authority includes the issuance of subpoenas requiring the production of evidence by the person being investigated. If the subpoena is not obeyed, the commission may apply to a district court for enforcement.
Settled authority holds that the role of the district court in an enforcement proceeding is sharply limited. The administrative agency, not the court, is responsible for determining in the first instance through its preliminary investigations the coverage of the statutes the agency must administer. Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 214, 66 S.Ct. 494, 90 L.Ed. 614 (1946); 1 Davis, Administrative Law, § 3.12 (1958). An agency need not show that the exercise of its jurisdiction is supported by reasonable cause unless the person to whom the subpoena is directed raises a substantial question that the court's process will be abused by enforcement. See United States v. Powell, 379 U.S. 48, 51, 85 S.Ct. 248, 13 L.Ed.2d 112 (1964). We applied these principles of administrative law in Graniteville Co. v. EEOC, 438 F.2d 32 (4th Cir. 1971). There the district court had required the commission to show reasonable cause as a prerequisite for enforcing a demand for evidence held by the company. Reversing, Judge Sobeloff observed:
That is not only to place the cart before the horse, but to substitute a different driver for the one appointed by Congress. The statutory standard to be applied in a Demand enforcement proceeding is one of relevancy and materiality, not one of reasonable cause to believe the charge is true. 438 F.2d at 36.
The Ninth Circuit, quoting Graniteville in a case similar to the one before us, 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. Pacific Maritime Association v. Quinn, 491 F.2d 1294, 1296 (9th Cir. 1974).
We conclude that the general rule dealing with the enforcement of administrative subpoenas is applicable here. The records that the commission seeks are relevant and material. The bank has not shown that production will be burdensome or that this action has been brought in bad faith to harass it. The commission wishes...
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