Joslin Dry Goods Co. v. Equal Employ. Opportunity Com'n

• Decision Date: 08 December 1971
• Docket Number: Civ. A. No. C-3187.
• Citation: 336 F. Supp. 941
• Parties: The JOSLIN DRY GOODS CO., Plaintiff, v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Defendant.
• Court: U.S. District Court — District of Colorado

336 F. Supp. 941

The JOSLIN DRY GOODS CO., Plaintiff, v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Defendant.

Civ. A. No. C-3187.

United States District Court, D. Colorado.

December 8, 1971.

Spencer, Fane, Britt & Browne, by Jack L. Whitacre, Kansas City, Mo., Holland & Hart, by Bruce W. Sattler, Denver, Colo., for plaintiff.

Ellis Bert, Equal Employment Opportunity Commission, Albuquerque, N. M., for defendant.

MEMORANDUM OPINION

WINNER, District Judge.

This case arises under 42 U.S.C. § 2000e-9, which switches that which would be a routine discovery matter in an ordinary lawsuit into a full blown trial, the determination of which presumably must rest upon findings of fact and conclusions of law as required by Rule 52. This opinion contains those required findings and conclusions.

42 U.S.C. § 2000e-9 provides in material part:

"(a) For the purposes of any investigation of a charge filed under the authority contained in section 2000e-5 of this title, the Commission shall have authority to examine witnesses under oath and to require the production of documentary evidence relevant or material to the charge under investigation.

"(b) If the respondent named in a charge filed under section 2000e-5 of this title fails or refuses to comply with a demand of the Commission for permission to examine or to copy evidence in conformity with the provisions of section 2000e-8(a) of this title . . . or if any person fails or refuses to comply with a demand by the Commission to give testimony under oath, the United States district court for the district in which such person is found, resides, or transacts business, shall, upon application of the Commission, have jurisdiction to issue to such person an order requiring him to comply with the provisions of section 2000e-8(c) or (d) of this title or to comply with the demand of the commission . . .

"(c) Within twenty days after the service upon any person charged under section 2000e-5 of this title of a demand by the Commission for the production of documentary evidence or for permission to examine or to copy evidence in conformity with the provisions of section 2000e-8(a) of this title, such person may file in the district court, of the United States for the judicial district in which he resides, is found, or transacts business, and serve upon the Commission a petition for an order of such court modifying or setting aside such demand . . .."

The genesis of this case is a complaint filed with the Colorado Civil Rights Commission on December 21, 1970, by one Elnora Thompson against plaintiff here. 42 U.S.C. 2000e-5(b) requires the filing of the charge with the state agency having jurisdiction of such complaints before any charge can be filed with the EEOC. The very next day, to meet the requirements of that section, the Colorado Civil Rights Commission terminated its proceedings in Elnora Thompson's case, and advised the EEOC:

"The Federal Equal Employment Opportunity Commission may now proceed immediately with the case, and it will not be necessary as far as the State of Colorado is concerned for the federal agency to wait the 60 day period mentioned in Section 706(b) of Title VII." 42 U.S.C. § 2000e-5 (b).

The charge in question was:

"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."

The letter from the Colorado Civil Rights Commission and a copy of complainant's charge was received by the EEOC on December 28, 1970, and on December 30, 1970, the EEOC notified Mrs. Thompson of the action of the Colorado Civil Rights Commission and of her right to ask the EEOC to assume jurisdiction. On January 6, 1971, Mrs. Thompson asked that the EEOC assume jurisdiction, and it did. An investigation was commenced by the EEOC on March 30, 1971. In the course of that investigation, one Trujillo, an EEOC investigator, discussed Mrs. Thompson's charge with a vice-president of Joslins. In this discussion, her personnel file, including certain "shopping reports" prepared by Fitzsimmons and Winters, was discussed and reviewed. The demand was served at the conclusion of this conference, and in response thereto the following data was mailed to the investigator:

1. The then current EEO-1 report which shows a numerical breakdown of employees at Joslins downtown store according to job position, race, 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.

This information fell far short of meeting the broad scope of the investigator's demand which ordered:

"You are hereby directed to grant Pat A. Trujillo . . . access to, at the Joslins Stores at Denver, Colorado, or other facilities where information and witnesses may be available within 20 days after service of this demand, the following information in your possession and control for the purpose of examining and copying, to-wit:

"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.

sic

"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.

sic

"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."

The uncontroverted affidavit of Joslins' vice-president shows that the seven stores maintain separate records and that there is no master file of employees. It further shows that although Joslins 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 files.

(c) "Fitzsimmons and Winters" reports including the information described in the fourth demand.

To supply the information demanded would require a review of every personnel file maintained by the company, and this would require a study of more than 1,000 personnel files. The company has already furnished the investigator with the job position, race and sex of the only other employee terminated during the past year because of adverse information contained in the Fitzsimmons and Winters reports.

To compile the information requested by Demand No. 2 would require compilation of information from more than 3,000 index cards, and Demand No. 4 would require compilation of information from more than 1,500 files. It seems apparent that the information demanded could not be compiled without the expenditure of a substantial amount of money by Joslins.

With these facts in mind, we pass to a consideration of the statute itself and of the decisions under it, bearing in mind that what the Commission had before it was a complaint by a single employee that she had been fired. We start from the premise that Title VII of the Civil Rights Act should be liberally construed, and "the Commission may, in the public interest, provide relief which goes beyond the limited interests of the charging parties." Blue Bell Boots, Inc. v. Equal Employment Opportunity Commission, (1969) 5 Cir., 418 F.2d 355. But we also start from an analysis of the statutory scheme and with a recognition that Congress did not intend to confer upon the Commission's investigators the unfettered right to conduct fishing expeditions dictated by nothing more than the investigator's curiosity.

A quick run-through of the statute is as follows:

Sec. 2000e-2 makes it unlawful for an employer "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual (with respect to his employment) because of such individual's race, color, religion, sex, or national origin." Sec. 2000e-4 creates the Equal Employment Opportunity Commission. It consists of five members appointed by the President with the advice and consent of the Senate, and it is given authority to employ subordinates. In summary form, its powers are these:

1. To cooperate with state and local agencies.

2. To pay witness and mileage fees on deposition.

3. To furnish technical assistance to persons subject to the act.

4. Upon request of an employer or labor

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