Georgia Power Co. v. Equal Employment Opportunity Com'n, 26831.

• Decision Date: 10 June 1969
• Docket Number: No. 26831.,26831.
• Citation: Georgia Power Co. v. Equal Employment Opportunity Com'n, 412 F.2d 462, 1 FEP Cases 787 (5th Cir. 1969)
• Parties: GEORGIA POWER COMPANY, Petitioner-Appellant, v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

412 F.2d 462 (1969)

GEORGIA POWER COMPANY, Petitioner-Appellant, v.EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Respondent-Appellee.

No. 26831.

United States Court of Appeals Fifth Circuit.

June 10, 1969.

William B. Paul, Fred W. Elarbee, Jr., Constangy & Prowell, Atlanta, Ga., for petitioner-appellant.

David R. Cashdan, Atty., Equal Employment Opportunity Commission, Daniel Steiner, Gen. Counsel, Russell Specter, Asst. Gen. Counsel, Washington, D. C., for respondent-appellee.

Before GEWIN, McGOWAN^* and MORGAN, Circuit Judges.

GEWIN, Circuit Judge:

The appellantGeorgia Power Company filed a petition in the United States District Court for the Northern District of Georgia seeking an order setting aside a Demand for Access to Evidence served on the company by the Equal Employment Opportunity Commission.The information sought by the demand purported to relate to a charge of sex and racial discrimination filed with the EEOC under Title VII of the Civil Rights Act of 1964.¹In support of its petition, the company argued below that it had not been timely furnished with an adequate charge and that the EEOC's Demand was overly broad in scope.

The district court rejected the company's contentions concerning the adequacy and timeliness of the charge but modified the Demand by delimiting the scope of permissible discovery.The EEOC has not appealed from the modification of its Demand; the company, however, argues anew that the charge of discrimination was untimely and inadequate and that the district court did not sufficiently restrict the scope of the Demand.We affirm the judgment of the district court.

I

The relevant facts involved in this case are undisputed.The charging party before the EEOC was a Negro female, Mrs. Neloise R. Adkins, who had applied to the company for employment on July 31, 1967.At that time, the company needed a customer representative trainee, an entry-level position in the company's customer service department.Mrs. Adkins' application was brought to the attention of the head of that department and, after an interview, an employment test was given on August 10, 1967.She took the examination, and in accordance with instructions, called the department head the following day concerning her score and employment prospects.She was told that she did not score high enough on the examination to qualify for the customer service trainee position.

In an unsworn, handwritten letter dated August 27, 1967 and addressed to Mr. Donald Hollowell, regional director of the EEOC, the charging party stated in pertinent part:

I would like to inform you of a few experiences that I have had.First of all, I attended the Institute of Computer Technology, for Data Processing and Programming from Jan. 1967 until I finished in May, 1967 * * *.

* * * * * *

I went to the Georgia Power Co. and placed an application and talked to Mrs. Martin in personal sic.About two weeks from then, she called me and asked if I was not interested in a position in Customer Service.I told her yes.She then set up an appointment for me to talk to the hiring official at the Forsyth St. office.I talked to him and was interviewed by another person.I was scheduled for the test at 1:30 P.M. the same day.I took the test, and there were various parts of it, I did\'nt understand.I was very confused on the last part.The test was too two hours long.

I was then told to call back the next day for my results.He told me that "I did\'nt make quite enough for the job", but that I did\'nt fail, because they don\'t give a numerical rating.He looked at my application and noticed that I had training in Data Processing and told me that they did not hire women in this field.(Aug, 1967)

* * * * * *

I am not pleased with the excuses and run-around that I get from these various places.

I would like very much if you would look into this matter.

In addition to the appellant company, the letter detailed the charging party's "experiences" with three other companies and a private employment agency.On November 16, 1967, some ninety-seven days after the rejection of her application for employment, the charging party amended her letter charge by transferring the facts alleged to an EEOC form and by swearing to the contents.The formal charge also specifically alleged employment discrimination on account of race or sex.Seven days later, on November 23, 1967, the company was served with the formal, sworn charge.The company thereafter demanded a copy of the charging party's original letter and the EEOC supplied the company with a redacted copy, from which all identifying references to the other companies and the employment agency mentioned in the letter were deleted.²

In the course of its investigation of the alleged discrimination, the EEOC served the company with a Demand for Access to Evidence, requiring the submission of the following information:

1.List of all persons presently employed by Respondent in the Customer Service and Data Processing Departments in its Atlanta facilities.Said list to include the following information for each employee:

(a) Name, race and Sex

(b) Date of Hire, and date of entry into these departments

(c) Classification or job title

(d) Test score of each such employee.

2.A copy of the following documents for Mrs. Neloise R. Adkins:

(a) Application for employment

(b) All tests administered to her

(c) The test scores for each test.

3.A copy of the following documents for all persons hired in or who entered into the Customer Service and Data Processing Departments from May 29, 1967 to November 29, 1967:

(a) Application for employment

(b) All tests administered to each such person

(c) The test score for each such test.

4.A copy of the job descriptions for all entry level positions in the Customer Service and Data Processing Departments in effect during the period from May 29, 1967 to November 29, 1967.

5.Any additional documents in the custody or control of Respondent, Georgia Power Company, which reflect the information requested by the United States Equal Employment Opportunity Commission in this Demand.

The company petitioned the district court on June 3, 1968, for an order (1) setting aside the Demand on the ground that an adequate and timely charge had not been filed with the EEOC and (2) limiting the scope of the Demand.The EEOC answered and cross-petitioned for an order enforcing the Demand.The district court rejected the company's attack on the validity of the charge served on the company.However, the court agreed with the company that the Demand was unduly broad in some respects and, accordingly, narrowed the scope of the Demand.The court held that the Demand should be limited geographically to the company's Atlanta facilities and temporally to the five-year period prior to the alleged discrimination.In addition, the court held that the Demand must be limited to non-supervisory employees.Thus the court delimited DemandNo. 1 to information concerning non-supervisory personnel in the Atlanta area from August 11, 1962, and eliminated DemandNo. 5 as being impermissibly broad and vague.

II

The company's attack on the charge filed with the EEOC is basically twofold: (1) assuming that the charging party's original letter was timely, the company contends that the letter was not, for various reasons, adequate; and (2) assuming that the formal charge was adequate, that charge was neither timely nor a legitimate amendment of the letter.

The adequacy of the original letter as a charge is impugned on a number of grounds.The primary basis of attack stems from the fact that, under subsection 706(a) of the Act, the EEOC could not serve the company with a copy of the letter without deleting references to other charged parties.Subsection 706(a) makes it a misdemeanor for "any officer or employee of the Commission who shall make public in any manner whatever" a charge filed with the EEOC.³Pointing out that the same subsection of the Act states that "the Commission shall furnish such employer * * * with a copy of such charge," the company argues that the informal letter could not suffice because it could not be furnished to the company as written by the charging party.

We cannot agree with this contention because, among other things, we think that the company was served with the entirety of the charge against it.The charging party's letter related to four business establishments other than the appellant company; thus the letter was not a single charge but rather multiple charges made together.The mere fact that the charges were contained in an integrated instrument does not entitle the company to be served with charges against other companies.Thus it is clear that the portion of the charging party's letter relevant to the company could have been served as written.The company's argument that it might be advantageous to know the names of other charged parties should be addressed to Congress; before this tribunal, subsection 706(a) concludes the matter.

The opinion of this court in Weeks v. Southern Bell Tel. & Tel. Co.⁴ completely dissipates the company's argument that the charging party's letter was ineffective as a charge because it was unsworn.The court in Weeks approved the EEOC's regulation governing amendments to charges.Subsection 1601.11(b) of the regulations states in part:

A charge is deemed filed when the Comission receives from the person aggrieved a written statement sufficiently precise to identify the parties and to describe generally the action or practices complained of.A charge may be amended to cure technical defects or omissions, including failure to swear to the charge, or to clarify and amplify allegations made therein, and such amendments relate back to the original filing date.⁵

This regulation likewise disposes of the company's contention that the letter is not a proper charge because it did not charge "that any company mentioned therein had violated any law."The charging party...