E.E.O.C. v. University of New Mexico, Albuquerque, N.M.
| Decision Date | 30 October 1974 |
| Docket Number | No. 74-1119,74-1119 |
| Citation | 504 F.2d 1296 |
| Parties | 8 Fair Empl.Prac.Cas. 1037, 8 Empl. Prac. Dec. P 9758 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee, v. UNIVERSITY OF NEW MEXICO, ALBUQUERQUE, NEW MEXICO, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Washington Marshall, Washington, D.C. (William A. Carey, Gen. Counsel; Joseph T. Eddins, Associate Gen. Counsel; Beatrice Rosenberg and Charles L. Reisched of Employment Opportunity Commission, Washington, D.C., on the brief), for plaintiff-appellee.
John P. Salazar, Albuquerque, N.M. (William A. Sloan, Albuquerque, N.M., on the brief), for defendant-appellant.
Before MURRAH, SETH and BARRETT, Circuit Judges.
This appeal is taken by the University of New Mexico (University) from an order entered by the United States District Court for the District of New Mexico, requiring it to comply with a subpoena duces tecum which had been served upon it by the Equal Employment Opportunity Commission (EEOC) during the EEOC's investigation of a charge of unlawful employment discrimination filed against the University by Dr. Jovan Djuric, and associate professor in the University's Department of Electrical Engineering and Computer Sciences.
On January 26, 1971, Dean Richard Dove of the University's College of Engineering submitted a memorandum to Dr. Djuric notifying him that he was recommending to the President of the University that proceedings be undertaken to terminate Djuric's services for, inter alia, want of fulfillment by Djuric of his contract obligations and failure to remedy the 'serious negative attitude' which Dove had previously brought to Djuric's attention per memo of October 9, 1970.
Dr. Djuric thereafter on November 1, 1971, filed a complaint of unlawful discrimination 'in salary and promotion' from 1966 to 'the present' against the University (naming, individually, President Heady, Vice President Travelstead, Professor Koschmann and Dean Dove), with the State of New Mexico Human Rights Commission. He alleged employment discrimination based upon his ancestry and national origin (Yugoslavian) and his religious creed. On May 14, 1973, the Human Rights Commission dismissed his complaint, specifically finding that Djuric, while represented by competent counsel, failed to 'make out a case for relief.'
On January 21, 1972, Victor W. Bolie, Chairman of the Department of Electrical Engineering and Computer Sciences, wrote to Dr. Djuric regarding Djuric's alleged continuing inadequacies as an Associate Professor within that Department. He set forth twelve specific statements or 'causes' of lack of minimum professional standards in 'performance and behavior' as a staff member during the 1971 fall semester. Our examination discloses that none of the twelve causes could be in anywise associated or related to ancestry, national origin or religious creed.
Termination proceedings were instituted on May 26, 1972, by means of a formal 'Notice of Intention to Terminate' Djuric's employment as of June 20, 1973, executed by President Heady. The notice was submitted to Djuric with attachments setting forth causes, including the memorandum dated May 16, 1972, signed by Chairman Bolie and each of the seven full professors of Djuric's Department, recommending the institution of dismissal proceedings, in light of Dr. Djuric's alleged 'poor performance and antagonistic attitude' which they stated to be 'unacceptable and detrimental' to the Department. We view the memo as extremely relevant and significant. Chairman Bolie and each of the full professors had, just as Djuric, attained doctorate degrees. On August 17, 1972, Chairman Bolie again notified Djuric of specific causes evidencing Djuric's 'continuing refusal' to carry his 'share of the workload in this department' by alleged refusal to teach two 'lab sections' during the Fall Semester of 1972.
On September 5, 1972, Dr. Djuric filed a charge with the EEOC alleging:
'After filing a charge with the Human Rights Commission of New Mexico, and the State having found probable cause, on or about May 25, 1972, the University retaliated against me by informing me that my services would be terminated as of June 30, 1973.'
'I am being discriminated against because of my national origin, Yugoslav.'
During the course of the investigation of the above charge, the University supplied the EEOC with requested information including: (a) records or lists of all terminations which occurred at the College of Engineering from September 1, 1970 to the present, revealing race or national origin, position hired into, date of hire, starting salary, ending salary, date of termination and reason for termination; (b) copies of memorandums or letters that any other terminated employees received if any terminations were for the same reason as Dr. Djuric's; (c) a complete copy of Dr. Djuric's personnel file; (d) all records or minutes held by the Engineering Department which led to the decision to terminate Djuric's services; and (e) a statement as to why the decision was made in May of 1972 to terminate Dr. Djuric. Thereafter, in order to conduct a more 'thorough and complete investigation of the charge' the EEOC requested the University to provide further information. The University refused to do so, contending that the EEOC request was not relevant to the charge and was too broad. On May 16, 1973, the EEOC issued a subpoena duces tecum for the production of the requested additional information, to-wit:
1. Copies of personnel files of those faculty members terminated from the College of Engineering from January, 1970, to May 14, 1973. 2. Copies of personnel files of all faculty members in the College of Engineering as of May 14, 1973.
Following the University's refusal to comply with the subpoena, the EEOC petitioned the District Court for an order requiring obedience thereto. The Trial Court conducted hearings on August 24 and November 1, 1973. On November 2 the Court entered a 'Memorandum Opinion' holding, inter alia that On December 3, 1973, the District Court entered its Order directing the University to produce the records and papers described in the subpoena and to make them available for inspection by the EEOC within 30 days. This appeal followed. The judgment appealed from is final and the notice of appeal presents issues for review by this Court. Joslin Dry Goods Co. v. Equal Employment Opportunity Commission, 483 F.2d 178 (10th Cir. 1973).
The pertinent statutes involved in this action are:
Section 709(a) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e-8(a):
In connection with any investigation of a charge filed under section 2000e-5 of this title, the Commission or its designated representative shall at all reasonable times have access to, for the purposes 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 this subchapter (42 U.S.C.A 2000e-2000e-17) and is relevant to the charge under investigation.
42 U.S.C. 2000e-9 provides, inter alia:
For the purpose of all hearings and investigations conducted by the Commission or its duly authorized agents or agencies, section 161 of Title 29 shall apply.
29 U.S.C. 161 provides, inter alia:
For the purpose of all hearings and investigations,
(1) The Board, or its duly authorized agents or agencies, shall 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 any matter under investigation or in question . . . Within five days after the service of a subpoena . . . such person may petition the Board to revoke, and the Board shall revoke, such subpoena if in its opinion the evidence whose production is required does not relate to any matter under investigation, or any matter in question in such proceedings, or if in its opinion such subpoena does not describe with a sufficient particularity the evidence whose production is required.
During the hearings held before the District Court, the Court the the EEOC clearly treated Dr. Djuric's complaint as one predicated upon alleged discrimination because of his Yugoslav national origin.
The University's position has consistently been that the information, files, records and documents it has already supplied the EEOC clearly evidence that the sole and only reason for Djuric's termination is that of poor job performance. The University argues that because the Djuric discrimination charge, i.e., retaliation (abandoned) and termination by reason of Yugoslav origin, is a personal and not a class complaint, that the EEOC, through its Chief Investigator, Edmund L. Trujillo, is first and foremost, under the circumstances of this case, obligated to initially and carefully examine the documentary evidence supplied by the University and to interrogate the University's President, administrative personnel and departmental professors regarding Djuric's poor job performance in relation to his termination in order to determine whether those causes are valid. The University thus contends that if those causes clearly support the allegation of poor job performance, there is no need to investigate or inquire further. In effect the University argues that evidence of Dr. Djuric's poor job performance is so compelling that it constitutes the exclusive reason for his...
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