EEOC v. National Cash Register Company

• Decision Date: 08 December 1975
• Docket Number: No. C75-284A.,C75-284A.
• Citation: 405 F. Supp. 562
• Parties: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION v. NATIONAL CASH REGISTER COMPANY.
• Court: U.S. District Court — Northern District of Georgia

405 F. Supp. 562

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION v. NATIONAL CASH REGISTER COMPANY.

No. C75-284A.

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

December 8, 1975.

COPYRIGHT MATERIAL OMITTED

Roger J. Martinson, Regional Attorney, Equal Employment Opportunity Commission, Atlanta, Ga., for plaintiff.

Donald B. Harden (Fisher & Phillips), Atlanta, Ga., for defendant.

ORDER

MOYE, District Judge.

This Title VII enforcement action by the EEOC under Section 706(f)(1) and (3) and (g) alleges that the defendant, National Cash Register Company NCR, violated Section 703(a) of Title VII, 42 U.S.C. § 2000e-2(a) and § 2000e-3(a) by discriminating against women with respect to discharges, maternity leave policies and terms and conditions of employment. The case is presently before the Court on the defendant's motion to dismiss or in the alternative for summary judgment, filed March 14, 1975. The plaintiff opposes the motion.

The facts are as follows: The only employee charge related to this EEOC action was filed by Mrs. Beverly Hungerford on September 2, 1970. (See Exhibit # 1 to defendant's brief.) Mrs. Hungerford made two charges: (1) that she was discharged during a reduction-in-force while she was on maternity leave in violation of the sex discrimination prohibitions of the Act; (2) that she was paid lower wages for comparable work than a male who worked in her department.

The EEOC conducted an investigation of Mrs. Hungerford's charge beginning January 4, 1971. On October 29, 1973, the Atlanta District Director, Mr. Thomas McPherson, Jr., issued a Determination of Reasonable Cause (Exhibit 2 to defendant's brief). The Determination reached two conclusions: (1) that there was reasonable cause to believe that Mrs. Hungerford's discharge constituted a violation; and (2) that there was no support for Mrs. Hungerford's allegations of disparate wages. No further issues were raised or discussed.

The Determination found the following on the basis of undisputed facts: Mrs. Hungerford went on maternity leave in May 1970, pursuant to defendant's policies. The defendant instituted a reduction-in-force two months later in July 1970 while Mrs. Hungerford was still on leave. The defendant told Mrs. Hungerford at the end of August 1970, when she was scheduled to return from leave, that she had been terminated in a reduction-in-force. Of the ten persons terminated in the reduction, nine were male.

The defendant has moved to dismiss or for summary judgment on five grounds discussed hereafter:

I. The Complaint raises issues which have not been the subject of the statutorily required EEOC investigation, determination and conciliation.

The defendant argues that the Court lacks subject matter jurisdiction in this statutory proceeding because the defendant has not had an opportunity to engage in voluntary conference, persuasion and conciliation with the EEOC respecting the allegations in this broad-based complaint. Defendant argues that although Mrs. Hungerford's charge and the EEOC's investigation, conciliation efforts and reasonable cause determination were limited to Mrs. Hungerford's termination while on maternity leave and her claimed alleged wage disparity, the EEOC's complaint in the instant action goes well beyond the administrative action below to broadly allege that NCR has engaged in unspecified "unlawful employment practices" against women including but not limited to discharging an unknown number of female employees because of their sex, discrimination against females in terms and conditions of employment, and maintaining an unlawful maternity leave policy. Since the instant claims were never the subject of investigation, a reasonable cause determination and conciliation efforts by the EEOC, the defendant alleges that the EEOC has thereby failed to fulfill the several statutorily mandated conditions precedent to bringing a broad-based case like the instant action, and therefore the case should be dismissed.

The instant action is a statutory action. The Act, in explicit language requires the mandatory performance of the following actions before suit may be brought in the District Court: (1) The service of a charge or notice of filing of charge on the charged party, (2) the investigation of the charge; (3) the determination of whether, based on the results of the investigation, there is reasonable cause to believe the charge is true, and (4) if reasonable cause is found, an attempt to eliminate allegedly unlawful practices by conciliation. 42 U.S.C. §§ 2000e-5(b), 2000e-5(f)(1).

That these conditions precedent must be performed in their requisite order was the holding of the District Court in EEOC v. Container Corp. of America, 352 F.Supp. 262 (M.D.Fla.1972), in which Judge Tjoflat stated:

The Court views each one of the deliberate steps in this statutory scheme — charge, notice, investigation, reasonable cause, conciliation — as intended by Congress to be a condition precedent to the next succeeding step and ultimately legal action. Certainly, the EEOC does not contend that it could skip one or more of these steps at will. The language of the Act is mandatory as to each step and the Commission must complete each step before moving to the next.

* * * * * *

The Court concludes that the question of the EEOC's satisfaction of the statutory conditions precedent to suit is a proper and indeed a necessary subject of judicial inquiry. . . . (Emphasis supplied) 352 F.Supp. 265-66

See similar language in EEOC v. E. I. DuPont de Nemours and Co., etc., 373 F.Supp. 1321, 1336 (D.Del.1974):

As this opinion has earlier stressed, each step in the Commission's administrative process is designed to be a prerequisite to the following step and, ultimately, to suit. Congress, committed as it was to voluntary compliance, could not have intended that the Commission could attempt conciliation on one set of issues and, having failed, litigate a different set. . . .

Judge Tjoflat's treatment in EEOC v. Container Corp. of America of these conditions prerequisite to an EEOC suit has been supplanted by the Fifth Circuit's opinion in EEOC v. Standard Forge & Axle Co., Inc., 496 F.2d 1392 (5 Cir. 1974), which held that as a pleading matter under Fed.R.Civ.P. 9(c), it was sufficient for the EEOC to aver generally that "all conditions precedent to the institution of the lawsuit have been fulfilled." See EEOC v. Times-Picayune Publishing Corp., 500 F.2d 392 (5 Cir. 1974). The Fifth Circuit, however, left open the extent of the district court's inquiry into the EEOC's fulfillment of conditions precedent to bringing suit:

What may or may not be conditions precedent to the Commission's right to seek judicial redress of a Title VII grievance, cf. Sanchez v. Standard Brands, Inc., 5 Cir. 1970, 431 F.2d 455; Miller v. International Paper Co., 5 Cir. 1969, 408 F.2d 283; Dent v. St. Louis-San Francisco Railway Co., 5 Cir. 1969, 406 F.2d 399, cert. denied, 1971, 403 U.S. 912, 91 S.Ct. 2219, 29 L.Ed.2d 689, must be determined by the district court after the issue is properly presented under the rules of pleading. 496 F.2d at 1395.

In the present case, the question of EEOC fulfillment of conditions precedent is squarely presented by the defendant's motion for summary judgment and supporting exhibits and the EEOC's response. Consequently, EEOC v. Standard Forge & Axle Co., Inc., supra, constitutes no bar to the Court's consideration of this issue at this time.

The test for determining the scope of an individual's Title VII complaint, which stems from an initial charge before the EEOC is well-settled. Sanchez v. Standard Brands, Inc., 431 F.2d 455 (5 Cir. 1970).

Sanchez decided that the scope of the judicial complaint in a Title VII case:

. . . is limited to the "scope" of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination. (emphasis supplied) (431 F.2d 455).

See also Tipler v. E. I. duPont de Nemours, Inc., 443 F.2d 125 (6 Cir. 1971), and King v. Georgia Power Co., 295 F.Supp. 943 (N.D.Ga.1968).

The focus in Sanchez was on the EEOC investigation. In other words, where the EEOC's investigation of an individual's EEOC charge reveals unlawful employment practices which could be reasonably expected to be uncovered during the EEOC investigation, and are "like or related to" those alleged in the original charge, the judicial complaint may encompass these additional alleged unlawful employment practices.

Conversely, the judicial complaint may not allege unlawful employment practices, which were the subject neither of the EEOC's investigation, Sanchez v. Standard Brands, Inc., supra, nor of its "reasonable cause" determination. EEOC v. E. I. DuPont de Nemours and Co., etc., 373 F.Supp. 1321 (D.Del.1974).

That the scope of the EEOC's investigation and "reasonable cause" determination may not be widened in a subsequent judicial complaint, whether suit is brought by a private citizen or the EEOC, is supported by EEOC v. E. I. DuPont, supra, and EEOC v. Huttig Sash & Door Co., 511 F.2d 453 (5 Cir. 1975).

In DuPont, supra, the District Court adopted the Sanchez rule in determining the permissible scope of the EEOC's proceedings in relation to the scope of the employee's EEOC charge. 373 F.Supp. at 1335-36. In discussing the scope of the judicial complaint in relation to the scope of the EEOC proceedings, the DuPont Court adopted the rule that the judicial complaint may only encompass those issues falling within the Commission's "reasonable cause" determination:

Although the Parker charge gave the Commission authority to investigate the full range of employment practices encompassed by its determination of reasonable cause, it is a separate question whether the Commission is now entitled to litigate all of the issues framed by its complaint filed in this Court . . . Since the determination of reasonable cause defines the framework for conciliation, it follows that the issues to be

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