EEOC v. METRO. ATLANTA GIRLS'CLUB, INC.

• Decision Date: 30 June 1976
• Docket Number: Civ. A. No. C75-1175A.
• Citation: 416 F. Supp. 1006
• Parties: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION v. The METROPOLITAN ATLANTA GIRLS' CLUB, INC.
• Court: U.S. District Court — Northern District of Georgia

416 F. Supp. 1006

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION v. The METROPOLITAN ATLANTA GIRLS' CLUB, INC.

Civ. A. No. C75-1175A.

United States District Court, N. D. Georgia, Atlanta Division.

June 30, 1976.

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Milton C. Branch, Regional Atty., American Regional Litigation Center, Atlanta, Ga., for plaintiff.

Claud L. McIver, III, Fisher & Phillips, Atlanta, Ga., for defendant.

ORDER

EDENFIELD, Chief Judge.

This Title VII action, 42 U.S.C. §§ 2000e, et seq., is now before the court on plaintiff's motion to amend this court's order of March 25, 1975, dismissing the above-titled action as barred for laches.

For the reasons discussed in today's order in EEOC v. Moore Group, Inc., No. C75-1029A, 416 F.Supp. 1002, this court now declines to hold that laches is available as a defense in the instant case. At the same time, however, it is concluded that § 10e(1) of the Administrative Procedure Act, 5 U.S.C. § 706(1), may be used to set aside agency action upon a showing of delay, which delay is unreasonable and which causes defendant to be prejudiced therefrom. EEOC v. Moore Group, Inc., No. C75-1029A (N.D.Ga., order of even date), at 1002.

Upon reconsideration of the facts as presented in this case, the court now concludes that defendant is unable to satisfy the requirements of § 706(1) as outlined above. Although there was a significant delay exhibited by plaintiff in this case (the action was instituted more than two and one-half years after the filing of Ms. Schwartz's charge with the EEOC), there has been no adequate showing by the defendant of prejudice occasioned by this delay. Defendant contends it was prejudiced because the passage of 272 days between the date that the charging party, Schwartz, was notified that conciliation had failed and the date that EEOC's complaint was filed had led the defendant to conclude that the case was closed. However, less than two months after Schwartz's right to sue had expired,¹ the EEOC notified defendant that it had been authorized to sue in the present matter and gave defendant ten days within which to respond to an offer to partake in "pre-suit procedures" in an effort to obtain a voluntary resolution of the suit. Because defendant did agree to engage in this settlement procedure which continued until the suit was filed, it cannot complain that the intervening four-month delay gave rise to prejudice. Presumably defendant was free at any time within that four-month period to withdraw from these negotiation efforts.

Further, defendant can point to no specific item of prejudice which was caused by the passage of time. It points to the nonexistence or disappearance of records, documents and memoranda relevant to this case but by its own admission indicates their absence is due to defendant's status as a nonprofit organization committed to helping young girls instead of keeping "sophisticated employment records." Moreover, this case is distinguishable from the facts presented in Moore Group, supra, where the EEOC waited over a year after the charging party's right to sue had expired before filing suit, without giving defendant any indication that the case was still under consideration. In the interim, defendant had thrown away pertinent time cards pursuant to its normal operating procedure, and therein lay the basis for a finding of prejudice. Here, only two months had elapsed after Schwartz's right to sue had expired when the EEOC informed the defendant that the case was in no way closed, and there has been no specific showing of prejudice caused by the passage of that short period of time.

There having been no adequate showing of prejudice, this court cannot dismiss this action pursuant to 5 U.S.C. § 706(1) as being "unreasonably delayed." Plaintiff's motion to reconsider this court's order of March 25 is GRANTED and the judgment previously entered is hereby VACATED. The court now proceeds to address the other issues raised by defendant's motions to dismiss or, in the alternative, for summary judgment, to strike, and to require a more definite statement.

Defendant contends that the expiration of the charging party's right to sue (90 days after notice of failure to conciliate, 42 U.S.C. § 2000e-5(f)(1)), also extinguishes the EEOC's right to sue on the charging party's claim. EEOC v. C & D Sportswear, 398 F.Supp. 300, 305 (M.D.Ga.1975). Although the March 25 orders in the instant case and in EEOC v. Moore Group, Inc., supra, declined to rule on this point, this court now specifically holds that the EEOC is not required to bring an action on a charging party's complaint within 90 days after the charging party has been notified that conciliation efforts have failed. This conclusion follows implicitly from the Fifth Circuit's decision in EEOC v. Louisville & Nashville R.R., 505 F.2d 610 (5th Cir. 1974), cert. den. 423 U.S. 824, 96 S.Ct. 39, 46 L.Ed.2d 41, 44 U.S.L.W. 3201 (1975), wherein the court held that the EEOC was not obligated to bring suit within 180 days after a charge was filed. In reviewing the statutory scheme as set out in § 706(f)(1) of Title VII, 42 U.S.C. § 2000e-5(f)(1), the court noted that three specific time limitations were provided at various stages in the procedure: (1) the Commission must wait 30 days from the filing of a charge before instituting suit (in an effort to secure a conciliation agreement); (2) if a conciliation agreement has not been reached or the EEOC has not filed suit within 180 days from the filing of such charge, the EEOC must so notify the aggrieved party; and (3) the aggrieved party then has 90 days within which to file an action. "No explicit time limitation on the Commission's right to bring civil action is mentioned in the subsection. . . . The private suit limitation makes the absence of any specific limit for Commission actions all the more conspicuous, and the difference must be taken to be intentional." EEOC v. Louisville & Nashville R.R., supra at 613; and see EEOC v. Rollins, 8 FEP 492, 495 (N.D.Ga.1974).

That Title VII supplies no specific deadline by which time the EEOC must bring suit makes sense in light of the legislative history behind the 1972 amendments to Title VII which gave the EEOC enforcement powers. See generally EEOC v. Louisville & Nashville R.R., supra at 615-17; EEOC v. Cleveland Mills Co., 502 F.2d 153, 156-57 (4th Cir. 1974). Up until 1972, the aggrieved party bore the responsibility of bringing suit if conciliation efforts on the part of the EEOC failed. The major purpose behind the 1972 amendments was to give the EEOC the power to sue on its own, and it was intended from that time forward that the Commission would be the prime enforcer of the Act in the courts. The 180-day waiting period was created to allow the conciliation process between the employer and the EEOC to proceed without the interference of a private lawsuit. After 180 days, the aggrieved party had 90 days within which to file a private action if dissatisfied with "agency inaction, dalliance or dismissal of the charge, or unsatisfactory resolution. It was hoped that recourse to the private lawsuit would be the exception and not the rule. . . . However, it was thought necessary that all avenues be left open for quick and effective relief." EEOC v. Louisville & Nashville R.R., supra at 615, citing 118 Cong.Rec.S. 3462, March 6, 1972. It would appear, then, that the purpose behind the 90-day time limitation on private actions was to give the EEOC a clear indication, within a reasonably short period of time, as to whether the aggrieved party would in fact initiate suit on his own. It seems likely that it was not intended to limit the time within which the EEOC itself could file suit.

Further evidence supporting such a conclusion is found in Congress's awareness of the backlog of cases plaguing the EEOC when it increased its jurisdiction in the 1972 amendments. See discussion of legislative history in EEOC v. Du Pont de Nemours, 373 F.Supp. 1321, 1328-30 (D.Del.1974). Regarding this workload the Fifth Circuit commented "We cannot infer, without very convincing evidence, that Congress intended to curtail so severely the duration of EEOC's authority in the face of these demands on its limited enforcement resources." EEOC v. Louisville & Nashville R.R., supra at 616.

The court takes note of the fact that one court has already held that the EEOC is bound by the 90-day period, EEOC v. C & D Sportswear Corp., 398 F.Supp. 300 (M.D.Ga. 1975). This court however, finds the arguments in C & D Sportswear unpersuasive. C & D Sportswear bases its holding in part upon the Fifth Circuit's decision in EEOC v. Huttig Sash & Door Co., 511 F.2d 453, 456 (5th Cir. 1975), which held that where an individual has filed suit and then has terminated the action, the EEOC is barred from bringing suit on behalf of that individual on the same charge. However, that decision rested upon principles of res judicata and is distinguishable from the instant case where no suit had ever been filed by the charging party. C & D Sportswear's next argument, which concerns the problem of duplicitous lawsuits during the 90-day period, seems directed not towards whether the EEOC may sue after the expiration of 90 days, but whether it is in fact required to file suit before the 90-day period commences, which was explicitly answered in the negative in EEOC v. Louisville & Nashville R.R., supra. In addition, C & D Sportswear's references to the EEOC's regulations and Field Manual, which indicate that in the normal course of events the EEOC has decided whether or not they will file an action before informing the charging party of his right to sue, do not preclude the possibility that in individual cases the EEOC might decide to institute an action upon learning that the charging party will not sue on his own.

C & D Sportswear does point out one unsatisfactory result if the EEOC is allowed to institute an action after the expiration of 90 days: under 42...