Georgia Power Co. v. EQUAL EMPLOYMENT OPPORTUN. COM'N
| Citation | 295 F. Supp. 950 |
| Decision Date | 09 August 1968 |
| Docket Number | No. 11858.,11858. |
| Parties | GEORGIA POWER COMPANY v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION. |
| Court | U.S. District Court — Northern District of Georgia |
William B. Paul, Fred W. Elarbee, Jr., Constangy & Prowell, Atlanta, Ga., for plaintiff.
Daniel Steiner, General Counsel, David Cashdan, Attorney, Equal Employment Opportunity Commission, Washington, D. C., for defendant.
This is a proceeding under the Fair Employment practices provisions of the Civil Rights Acts, wherein the Equal Employment Opportunity Commission ("the Commission") seeks to exercise the discovery powers upon the filing of a charge by Neloise R. Adkins as contained in 42 U.S.C.A. § 2000e-9(a). As permitted by subsection 9(c), the Georgia Power Company ("the petitioner") has filed its objections, timely made, to the production and examination of the information sought by the demand.
The formal demand, dated May 8, 1968, (EXHIBIT "A" to petition), insofar as its pertinent parts seeks:
Petitioner's objections are specified, as required, in paragraphs 7, 8, 9, 10, 11. In the main, they relate to relevancy, scope, and burdensomeness. At the hearing there were extensive stipulations of fact filed by the parties. The authenticity of the documents attached to the petition and response were agreed upon, and oral testimony was likewise received by the court. Briefs have been submitted and the application to set aside or for modification is now ready for determination by the court.
Following such procedure, the objections fall into two main categories (Petitioner's Brief, p. 1).
As revealed by the evidence and stipulations, the complainant made job application on July 31, 1967. While the written application referred to a job as Customer Service Representative, she at the same time orally inquired as to a position in Data Processing, having only recently graduated from a training program in that field. The personnel assistant at that first interview informed the applicant that there were no vacancies at data processing. She was tested on August 10, 1967, and on August 11, 1967, her application was denied.
On August 29th, 1967, the Commission received a handwritten unsworn complaint (the original of which was made available to petitioner at trial) reciting her charges against this and other employers.
The charge was processed by the Commission and in accordance with its regulations was redrafted on an agency form and sworn to on November 16, 1967. This "charge" was served on the company on November 23, 1967. Correspondence and conferences relating to investigation of the charge failed to produce agreement by the parties on discovery, resulting in this demand for discovery on May 13, 1968.
(1) Timeliness.
The argument advanced by petitioner is to the effect that there was no "charge" "in writing under oath" "filed within ninety (90) days after the alleged unlawful employment practice occurred" on August 11, 1967. 42 U.S. C.A. § 2000e-5(a) (d) (e). This alleged failure is deemed to be jurisdictional to this proceeding or to any subsequent court action on the complaint.
There is no question here but that the action complained of was "isolated", as opposed to "continuing" and, in fact, occurred on August 11, 1967. While the unsworn charge in writing was received on August 29, 1967, the sworn charge of November 16, 1967, was more than 90 days after the isolated transaction.
Stated in practical terms, the question before the court is whether a complaint in writing timely received may be amended after the 90-day period so as to meet the requirements of 42 U.S. C.A. § 2000e-5(a). The court holds that such procedure is permissible.
There are practical as well as legal reasons for this conclusion. From the court's observation thus far, the average complainant is not initially represented by counsel, has no knowledge of the niceties of the statute, and generally makes his "charge" in a crude homemade fashion. As in the case of prisoner's petitions, the courts should not be overly technical or strict as to form in such instances. To carry the present argument to the extreme would deny the Commission the power to process or investigate the complaint at all under such circumstances.
To the contrary, it would appear that it is the Commission's duty to process the complaint fashioning specifics from generalities, testing its reliability, and endeavoring to conciliate a bona fide grievance. Unfortunately, these efforts are sometimes cursory and the court has already expressed displeasure at the number of litigated cases filed in court without the conscientious effort to prevent litigation inherent in the statute. Such failures uniformly occur not because of any demonstrated lack of effort or sincerity but from the sheer burden of complaints for a limited staff. It would be grossly unfair to charge any citizen with a delay thus occasioned. See Evenson v. Northwest Airlines, Inc., 268 F.Supp. 29 (E.D.Va.1917); Mondy v. Crown Zellerbach Corp., 271 F.Supp. 258 (E.D.La. 1967). Can there be any justification in the denial of jurisdiction when the charge was timely filed, but could not be processed or "put in form" for 95 days? The court thinks not.
Moreover, there is long-standing authority, both state and federal, to the effect that verification is an amendable defect, even for technical common-law pleadings much less a citizen-drawn statement of grievance. As the courts seek to adopt workable procedures in this new field of litigation, it would appear that this long-standing practice be followed and the absence of an oath not destroy jurisdiction. E. g., Johnston Broadcasting Co. v. F.C.C., 85 U.S.App. D.C. 40, 175 F.2d 351 (1949); Neal v. Davis Foundry & Machine Works, 131 Ga. 701, 63 S.E. 221; 71 C.J.S. Pleading § 343 ff.1
Thus, it is ruled that, while the filing of a written charge within 90 days is jurisdictional, it may be amended as to form thereafter, including the supplying of a verification or oath. The Commission's regulations authorizing such procedure appear to be reasonable and the demand here does not fail in this respect.
(2) Relevancy and Scope.
Having determined that the discovery demand under 42 U.S.C.A. § 2000e-9(a...
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