EEOC v. Ocean City Police Dept.

• Decision Date: 30 June 1985
• Docket Number: Civ. No. K-84-4448.
• Citation: 617 F. Supp. 1133
• Parties: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION v. OCEAN CITY POLICE DEPARTMENT.
• Court: U.S. District Court — District of Maryland

617 F. Supp. 1133

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION v. OCEAN CITY POLICE DEPARTMENT.

Civ. No. K-84-4448.

United States District Court, D. Maryland.

June 30, 1985.

Johnny J. Butler, Acting Gen. Counsel, and E.E.O.C., Washington, D.C., Gerald S. Kiel, Regional Atty., Frederick P. Charleston, Supervisory Trial Atty., and E.E.O.C., Baltimore, Md., for plaintiff.

Richard T. Sampson, Kathleen Pontone and Semmes, Bowen and Semmes, of Baltimore, Md., for defendant.

FRANK A. KAUFMAN, Chief Judge.

On December 6, 1983, the Equal Employment Opportunity Commission (EEOC) issued a subpoena duces tecum to the Ocean City Police Department (Respondent), requiring the production of certain data allegedly necessary to the investigation of a charge of discrimination filed against Respondent by Keith Wright. That subpoena was issued after Respondent had failed to respond fully to the EEOC's requests for data.

On December 16, 1983, Respondent filed a Petition to Revoke or Modify the Subpoena. On March 10, 1984, the EEOC issued its Determination on Respondent's petition, denying the request to revoke the subpoena in its entirety, and modifying the subpoena only as to the time limit for compliance. On August 3, 1984, the General Counsel for the EEOC affirmed the Determination issued by EEOC's Baltimore District office, and directed Respondent to provide the requested data by September 7, 1984. To date, Respondent has failed to comply with the subpoena. In that context, the EEOC instituted this case in which it has filed an Application for Enforcement of Subpoena Duces Tecum.

On December 10, 1984, this Court ordered Respondent to appear on January 22, 1985, to show cause why this Court should not require Respondent to comply with the subpoena. Subsequently, on December 10, 1984, Respondent opposed in writing EEOC's subpoena enforcement action, the EEOC filed a written rebuttal, and a nonevidentiary hearing was held on the record on June 7, 1985. At the conclusion of that hearing, this Court informed counsel that it would enter an Order enforcing the subpoena as soon as it could prepare and file the within opinion and such Order.

I

Keith Wright alleges, inter alia, that he has been discharged by Respondent because of Wright's race, that only 9 of the 75 officers on the police force were black, and that while on the force, he was continuously harassed. Wright was discharged on April 14, 1981. On November 19, 1981, he completed an EEOC "Intake Questionnaire," and on December 16, 1981, he signed a formal "Charge of Discrimination." That formal charge was received by the EEOC on December 21, 1981, 251 days after April 14, 1981, the date of the discharge. At no time did Wright file any charge with the Maryland Commission on Human Rights (MCHR); nor did the EEOC ever refer this matter to the MCHR.

Section 706(b) of Title VII of the Civil Rights Act of 1964 authorizes the EEOC to conduct investigations of potential violations of the Act:

Whenever a charge is filed by ... a person claiming to be aggrieved ..., alleging that an employer ... has engaged in an unlawful employment practice, the Commission shall serve a notice of the charge ... on the employer ... within ten days, and shall make an investigation thereof ... if the Commission determines after such investigation that there is not reasonable cause to believe the charge is true, it shall dismiss the charge and promptly notify the person claiming to be aggrieved and the respondent of its action ... if the Commission determines after such investigation that there is reasonable cause to believe that such charge is true, the Commission shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation and persuasion ...

Section 709(a) of Title VII, as amended, 42 U.S.C. § 2000e-8(a), provides that the Commission may 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 and is relevant to the charge under investigation." Section 710 of Title VII, 42 U.S.C. § 2000e-9, authorizes the Commission to obtain information relevant to discriminatory charges and to issue subpoenas requiring the testimony of witnesses and the production of evidence. Section 710 also confers upon any district court of the United States the jurisdiction to issue an order of compliance to any person refusing to obey a subpoena. Id.

The EEOC is entitled to access only to evidence "relevant to the charge under investigation," Section 2000e-8(a). The following legislative history reveals that that limitation upon the EEOC's authority is not, as Justice Marshall wrote in EEOC v. Shell Oil Company, 466 U.S. 54, 104 S.Ct. 1621, 1629, 80 L.Ed.2d 41 (1984), "accidental":

"It is important to note that the Commission's power to conduct an investigation can be exercised only after a specific charge has been filed in writing. In this respect the Commission's investigatory power is significantly narrower than that of the Federal Trade Commission or of the Wage and Hour Administrator, who are authorized to conduct investigations, inspect records, and issue subpenas sic whether or not there has been any complaint of wrongdoing." 110 Cong.Rec. 7214 (1964) (citations omitted).

In Shell Oil, after quoting that passage from the legislative history, Justice Marshall concluded that:

we must strive to give effect to Congress' purpose in establishing a linkage between the Commission's investigatory power and charges of discrimination. If the EEOC were able to insist that an employer obey a subpoena despite the failure of the complainant to file a valid charge, Congress' desire to prevent the Commission from exercising unconstrained investigative authority would be thwarted. Accordingly, we hold that the existence of a charge that meets the requirements set forth in § 706(b) ... is a jurisdictional prerequisite to judicial enforcement of a subpoena issued by the EEOC.

Id. (footnote omitted). Accordingly, in order to establish entitlement to the grant of its written petition to enforce the subpoena in question, the EEOC must show that a valid charge was duly filed by Wright.

II.

Section 2000e-5(c), 42 U.S.C. states in part:

In the case of an alleged unlawful employment practice occurring in a State ... which has a State or local law prohibiting the unlawful employment practice alleged and establishing or authorizing a State or local authority to grant or seek relief from such practice ... no charge may be filed under subsection (b) of this section by the person aggrieved before the expiration of sixty days after proceedings have been commenced under the State or local law, unless such proceedings have been earlier terminated ... (emphasis added).

Section 706(e) of Title VII, 42 U.S.C. Section 2000e-5(e) provides in part:

A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred ... except that in a case of an unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings with a State or local agency with authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, such charge shall be filed within three hundred days after the alleged unlawful employment practice occurred....

The State of Maryland, through the MCHR, has established a state agency capable of affording relief from discrimination. Thus, Maryland is a Title VII "deferral" state in which the extended 300-day period for filing charges applies. Soble v. University of Maryland, 572 F.Supp. 1509, 1512 (D.Md.1983), citing to Vanguard Justice Society, Inc. v. Hughes, 471 F.Supp. 670, 680 n. 26 (D.Md.1979).

In this case, Wright did not file a charge with the EEOC within the 180 day period or with the MCHR within the applicable state limitations period. Herein, the question arises as to whether, in order to invoke the extended 300-day federal filing period, a claimant must file a state charge within the state limitations period. The Maryland limitations period, pursuant to Article 49(b) of the Annotated Code of Maryland, Section 9(a), is 180 days.

In Mohasco Corporation v. Silver, 447 U.S. 807, 100 S.Ct. 2486, 65 L.Ed.2d 532 (1980), Justice Stevens wrote in his majority opinion as follows (at 809-10, 100 S.Ct. at 2488-89):

The question in this Title VII case is whether Congress intended the word "filed" to have the same meaning in subsections (c)1 and (e)2 of § 706 of the Civil Rights Act of 1964, 78 Stat 260, as amended in 1972, 86 Stat 104-105, 42 USC §§ 2000e-5(c) and (e) 42 USCS §§ 2000e-5(c) and (e). The former subsection prohibits the filing of an unfair employment practice charge with the federal Equal Employment Opportunity Commission (EEOC) until after a state fair employment practices agency has had an opportunity to consider it. The latter subsection requires that in all events the charge must be filed with the EEOC within 300 days of the occurrence. We hold that a literal reading of the two subsections gives full effect to the several policies reflected in the statute.

1 "In the case of an alleged unlawful employment practice occurring in a State, or political subdivision of a State, which has a State or local law prohibiting the unlawful employment practice alleged and establishing or authorizing a State or local authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, no charge may be filed under subsection (b) by the person aggrieved before the expiration of sixty days after proceedings have been commenced under the State or local law, unless such proceedings have been earlier terminated, provided that such sixty-day period shall be extended to one

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