Joslin Dry Goods Co. v. EQUAL EMP. OPPORTUNITY COM'N, 72-1172.

• Decision Date: 15 August 1973
• Docket Number: No. 72-1172.,72-1172.
• Citation: 483 F.2d 178
• Parties: The JOSLIN DRY GOODS CO., Petitioner-Appellee, v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Respondent-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

483 F.2d 178 (1973)

The JOSLIN DRY GOODS CO., Petitioner-Appellee, v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Respondent-Appellant.

No. 72-1172.

United States Court of Appeals, Tenth Circuit.

August 15, 1973.

COPYRIGHT MATERIAL OMITTED

Jack L. Whitacre, Kansas City, Mo. (Jack L. Whitacre, Spencer, Fane, Britt & Browne, Kansas City, Mo., Bruce Sattler, Holland & Hart, Denver, Colo., on the brief), for appellee.

Ellis L. Bert, Albuquerque, N. M., (John de J. Pemberton, Jr., Acting Gen. Counsel, Julia P. Cooper, Chief, Washington, D. C., Appellate Section, Ellis L. Bert, Field Atty., Albuquerque, N. M. Charles L. Reischel, Atty., E. E. O. C., Washington, D. C., on the brief), for appellant.

Before LEWIS, Chief Judge, and JONES^* and McWILLIAMS, Circuit Judges.

JONES, Circuit Judge:

The Joslin Dry Goods Co., the appellee, operated retail department stores in the Denver, Colorado, area. It operated a Downtown Denver store and one on West Almeda Street in Denver. It had stores in Aurora, Englewood and Lakewood in suburban Denver. Other stores were located in Greeley and Boulder, each of which is some distance from Denver. The Lakewood store was discontinued prior to the initial hearing in this proceeding.

Mrs. Elnora Thompson filed a charge with the Colorado Civil Rights Commission claiming that she had been the subject of a racially motivated discharge as an employee at Joslin's Downtown Denver store. The proceeding terminated and she filed a charge with the appellant, Equal Employment Opportunity Commission, reading as follows:

"The respondents discriminated against me on November 16, 1970, by discharging me from my job, such action being based in whole or in part on my race or color, Negro/Black. The respondent also fails and refuses to hire Negroes and persons of Mexican ancestry."

It was asserted that Mrs. Thompson's discharge was precipitated, at least in part, by an adverse "Shoppers Report" of Fitzsimmons, Winters & Co. These reports describe customer service and whether the sale of merchandise is properly recorded and cash properly handled.

The EEOC served Mrs. Thompson's charge on Joslin on March 30, 1971. During the ensuing investigation Joslin voluntarily provided the EEOC with the following information: (1) the current EEO-1 report showing a numerical or statistical breakdown of the employees at the Downtown Denver store according to job position, race or ethnic background and sex; (2) an additional summary breakdown by department of all employees in the Downtown Store according to race and ethnic background; (3) a breakdown of managers according to race and ethnic background; (4) the complete personnel file of Mrs. Thompson, including the Fitzsimmons, Winters & Co. reports, and (5) the job position, race, and sex of the only other person terminated during the prior year, in whole or in part, because of adverse information contained in a Fitzsimmons, Winter & Co. shopping report.

The Commission decided that this information was insufficient for an adequate investigation of the charge and, on May 26, 1971, served Joslin with an administrative subpoena, styled a "Demand for access to evidence and compliance to give testimony under oath," pursuant to Sections 709(a) and 710(a) of Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. §§ 2000e — 8(a) and 2000e — 9 (a). The subpoena demanded "access to, . . . for the purpose of examining and copying . . .", the following:

1. A roster of all employees presently employed in the following locations:

Downtown Store, Denver Aurora Store J. C. R. S. — Lakewood Greeley Boulder Villa Italia

Such roster to include:

a. Name of employees

b. Date of hire

c. Position and/or department of employees

d. Racial/ethnic group of each employee

e. Starting and current salary

2. A list of all employees terminated since January 1, 1970, to the present, from the Downtown, Aurora, Englewood, J. C. R. S. — Lakewood, Greeley, Boulder, and Villa Italia Stores, inclusive of:

a. Name of employees

b. Date of hire

c. Position and/or employees\' department

d. Racial/ethnic group of each employee

e. Date of termination

f. Reason for termination

3. A roster of the managerial staff for the Downtown, Aurora, Englewood, J. C. R. S. — Lakewood, Greeley, Boulder, and Villa Italia Stores, inclusive of:

a. Name of employees

b. Date of hire

c. Racial/ethnic group of each employee

d. Position held

4. "Fitzsimmons and Winters reports on the Downtown, Aurora, Englewood, J. C. R. S. — Lakewood, Greeley, Boulder, and Villa Italia Stores since January 1, 1970, to the present. Such reports to include findings based on the checks and/or investigations and/or "shoppings" made during the aforementioned period. The reports are to include:

a. Name of individual(s) checked or investigated

b. Date of hire of individual(s) checked or investigated

c. Position held by such individual(s)

d. Racial/ethnic group of such individual(s)

e. The report to include the number and name of employees that have been discharged as a result of the checks, investigations and "shoppings" made since January 1, 1970, by "Fitzsimmons and Winters."

5. Any like or related records retained in a different form from the documents heretofore enumerated, but reflective of the substance of the evidence in the DEMAND.

As is shown by the Demand, the EEOC requested information as to the operations of Joslin's Downtown Store and also to the operations of the other Joslin stores. Joslin refused to furnish the information as to the other stores. It filed in the district court a "Petition to Set Aside Demands for Production of Documents" as authorized by Section 710 (c) of the Act, 42 U.S.C.A. § 2000e — 9 (c). The Commission answered and petitioned for enforcement of its Demand.

The district court rendered an opinion reported as Joslin Dry Goods Co. v. Equal Employment Opportunity Commission, 336 F.Supp. 941. Before it was an affidavit of a vice president of Joslin and it found that the seven Joslin stores maintain separate personnel records and that there is no master file or records of employees. The district court found that ". . . although Joslin maintains every record and makes every report required by the EEOC, it does not maintain:

(a) A schedule of employees showing starting salaries.

(b) A list of employees terminated since January 1, 1970. A separate personnel file is kept for each employee, and such a list would have to be compiled from a review of all the files.

(c) `Fitzsimmons and Winters\' reports including the information described in the . . . demand."

The district court determined that to supply the information demanded would require a review of every personnel file maintained by the company and the compilation of a substantial amount of information, which "could not be compiled without the expenditure of a substantial amount of money by Joslins." The district court decided that:

"There is no way that the statute can be read to require an employer to compile information. Sec. 2000e — 8 gives the right to copy, and Sec. 2000e — 9 requires the production of documentary evidence. No statute requires the employer to compile anything, and the courts have so held." Georgia Power Co. v. EEOC, 5th Cir. 1969, 412 F.2d 462, 465.

This ruling disposed of most, but not all, of the EEOC's Demand. There was no request for modification of the Demand and the district court declined to winnow it down, choosing instead to set it aside without prejudice to the right of EEOC to serve a new Demand consistent with the court's opinion. The opinion went on to set forth additional limitations upon the scope of any new Demand. It was determined that Mrs. Thompson has no standing to challenge the hiring practices of Joslin. The rationale of this determination is twofold. It was first decided that Mrs. Thompson was not injured by Joslin's hiring practices. Next it was held that the requirement of 42 U.S.C.A. § 2000e — 5(a) that an EEOC Commissioner must have "reasonable cause" before initiating an investigation was not met since Mrs. Thompson's charge contained no fact establishing "reasonable cause" for believing she or anyone else had been discriminated against by the company's hiring practices.

In discussing the right of Mrs. Thompson to question Joslin's hiring practices the district court considered and distinguished the opinion in Georgia Power Co. v. EEOC, 5th Cir. 1969, 412 F.2d 462. We do not think the district court intended, as EEOC suggests,...