Motorola, Inc. v. Equal Employment Opportunity Com'n, Civ 6906 PHX.

• Decision Date: 10 June 1968
• Docket Number: No. Civ 6906 PHX.,Civ 6906 PHX.
• Citation: 317 F. Supp. 282
• Parties: MOTOROLA, INC., an Illinois corporation, Petitioner, v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION et al., Respondents.
• Court: U.S. District Court — District of Arizona

317 F. Supp. 282

MOTOROLA, INC., an Illinois corporation, Petitioner, v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION et al., Respondents.

No. Civ 6906 PHX.

United States District Court, D. Arizona.

June 10, 1968.

Evans, Kitchel & Jenckes, Phoenix, Ariz., Robert V. Nystrom, Associate Counsel, Chicago, Ill., for plaintiff.

Julia P. Cooper, Atty., Equal Employment Opportunity Commission, Washington, D. C., for defendants.

OPINION and ORDER

MUECKE, District Judge.

We have before us: (1) Motorola's Petition for Order Quashing or Modifying Demand for Access to Evidence and Compliance to Give Testimony Under Oath, (2) Motion to Vacate Notice of Deposition of Vicente T. Ximenes made by Respondent, Equal Employment Opportunity Commission, and (3) Respondent's Motion to Amend the Commissioner's Charge.

Briefly, the facts are that on October 21, 1968, two documents were served at 8201 East McDowell Road, Scottsdale, Arizona, on Rufus Coulter, Western Area Director of Personnel for Motorola, Inc. One document consisted of a sheet entitled "Commissioner's Charge" dated June 10, 1968, signed by Vicente T. Ximenes, Commissioner, with the additional legend, "Commissioner's Charge, TAL9C0165.¹" It charged unlawful employment practices by Motorola, Inc., 3102 North 56th Street, Phoenix, Arizona, 85018, and further that

"the employer violates Section 703 (a) (2) of the Civil Rights Act of 1964 by maintaining employment practices which virtually exclude Negroes and Spanish surnamed persons from employment."

The second document consisted of a sheet also entitled "Commissioner's Charge" but was undated and unsigned.² This charged unlawful employment practices against Motorola, Inc., 5005 McDowell Road, Phoenix, Arizona, and set forth facts upon which the charge was based. Thereafter, the Commission made oral demand for access to employment records and information and served a demand in writing on Motorola, Inc., 8201 East McDowell Road, Scottsdale, Arizona, Attention Mr. Rufus Coulter, Director of Personnel, Motorola, Inc., RE: Vicente T. Ximenes, Charge File No. TAL9C0165.³ The demand makes it clear that all area affiliates were charged. Motorola thereupon filed, pursuant to 42 U.S.C. 2000e-9(c), a Petition for Order Quashing or Modifying Demand for Access to Evidence and Compliance to Give Testimony Under Oath. Respondent —E.E.O.C. answered the petition and cross-petitioned for an order enforcing the demand for access. Petitioner —Motorola filed a notice for the taking of Commissioner Ximenes' deposition. Respondent—Commission—moved to vacate the notice of taking Ximenes' deposition. Oral arguments were held on April 14, 1969, at which time Respondent orally moved to amend its charge by including the second page as a continuation of page one of the charge. This Court thereupon ordered the parties to brief the issue presented.

Respondent's oral motion to amend the Commissioner's Charge is granted. Petitioner has had, we feel, sufficient notice of the charge brought by the Commissioner. To give notice is, of course, the purpose of the charge. 42 U.S.C. § 2000e-5(a)⁴. That purpose is fulfilled by allowing the two documents to be construed as a single, two-page commissioner's charge. 1 Davis, Administrative Law 523 et seq., N. L. R. B. v. Royal Palm Ice Co., 193 F.2d 569 (5th Cir. 1952).

Respondent's Motion to Vacate Notice of Petitioner's taking Commissioner Ximenes' deposition is granted. Commission regulations 29 C.F.R. § 1610.20 and § 1610.30 to-.36⁵ prohibit a disclosure of the desired information. Furthermore, by analogy, as the reasoning by the Court in Local No. 104, Sheet Metal Workers International Assoc. v. Equal Employment Opportunity Commission, 303 F.Supp. 528 (N.D.Calif., 1969) makes clear, to allow the Commissioner's deposition to be taken would, at this point in the proceedings, require the Commissioner to reveal his sources of information and deter individuals from making complaints for fear of retaliation. This would violate Congressional intent. (See 110 Cong.Rec. 14188, 14191). Obviously, at some point in the proceedings, prior to any evidentiary hearing on the basic issues, the Commission would make available to petitioners herein, the witnesses and exhibits intended to be used to present the Commission's case. This disclosure, however, need not reveal the identity of those individuals who might have given the initial information.

Petitioner also seeks an order quashing or modifying demand for access to evidence and compliance to give testimony under oath. The petition alleges that (1) the evidence sought is not relevant and material to the charge and (2) the demand violates the Fourth Amendment. We find no merit in these contentions, Local No. 104, Sheet Metal Workers International Association, supra, except that the reference to "sex" in Item Three of the demand is stricken.

Petitioner also contends that the demand is not based on a valid Commissioner's Charge under § 706(d) of the Act because it is made 90 days after the alleged unlawful employment practice. We find no merit in this contention. The practice of discrimination, if it exists, is by its nature, a continuing violation. Petitioner also alleges that the Commission's own rules and regulations, found in 29 C.F.R. § 1601.11⁶ are violated. There is no merit in this contention. See Local No. 104, Sheet Metal Workers International Association, supra, and 1 Davis, Administrative Law, supra. Except to the extent the Commissioner's demand is modified by striking the reference to "sex", the petition to quash or modify the demand is denied and petitioners are ordered to comply with Respondent's Demand for Access to Evidence and Compliance to Give Testimony Under Oath.

APPENDIX A.

EXHIBIT A

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION WASHINGTON, D. C. 20506

Seal

COMMISSIONER'S CHARGE

Pursuant to Section 706(a) of the Civil Rights Act of 1964, I charge the following employer with unlawful employment practices:

Motorola, Incorporated 3102 N. 56th Street Phoenix, Arizona 85018

I have reasonable cause to believe that the employer is within the jurisdiction of the Equal Employment Opportunity Commission and that it has committed the following unlawful employment practices:

The employer violates Section 703(a) (2) of the Civil Rights Act of 1964 by maintaining employment practices which virtually exclude Negroes and Spanish surnamed persons from employment.

June 10, 1968 (s) Vicente T. Ximenes Date Commissioner

COMMISSIONER'S CHARGE TAL9C0165

APPENDIX B.

COMMISSIONER'S CHARGE

Pursuant to Section 706(a) of the Civil Rights Act of 1964, I charge the following employer with unlawful employment practices:

MOTOROLA INCORPORATED 5005 McDowell Road Phoenix, Arizona

I have reasonable cause to believe that the above employer is within the jurisdiction of the Equal Employment Opportunity Commission and that it has committed and is now committing the following unlawful employment practices:

1. The above employer violates Section 703(a) of the Civil Rights Act of 1964 by discriminating against Negroes, American Indians, and Spanish Surnamed Americans, male and female, with respect to hiring.

I base this charge on the following facts:

a) The above employer employs at its Phoenix, Arizona facilities a total of approximately 11,730 employees of whom 96 are Negro, 454 are Spanish Surnamed Americans, and 14 are American Indian.

b) It is alleged that the above employer discriminates against minority group job applicants by using biased pre-employment testing and hiring procedures.

c) It is alleged that the above employer refuses to hire males to work as electronics assemblers on the basis that the manual dexterity of females is superior to that of males.

d) It is alleged that the above employer discriminates against women by applying unfair character criteria related to the legitimacy of their children and not applying the same to male job applicants.

e) It is alleged that the above employer does not hire members of these minority groups to work at its Phoenix, Arizona facilities.

______________ __________________ Date Commissioner

APPENDIX C.

EXHIBIT B

UNITED STATES OF AMERICA

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

DEMAND FOR ACCESS TO EVIDENCE AND COMPLIANCE TO GIVE TESTIMONY UNDER OATH

To: Motorola, Inc. RE: Vicente T. Ximenes 8201 East McDowell Charge File No Scottsdale, Arizona TAL9C0165 ATTN: Mr. Rufus Coulter Director of Personnel Motorola, Inc.

Pursuant to Section 710 of the Civil Rights Act of 1964, you and each of you are hereby required and directed to furnish RAY R. BACA, a duly authorized representative of the Equal Employment Opportunity Commission, at Motorola, Inc., 8201 East McDowell, Scottsdale, Arizona, and all its area affiliates, on November 20, 1968, the information within your possession or control as set forth below:

1. List of job openings from January 1, 1968, through present.

2. Job qualifications for all job classifications including laborers, service workers, and assemblers.

3. A list of existing job classifications with a staffing breakdown as to minority group composition and sex.

4. Copies of all tests used and the norms.

5. List of new hires from January 1, 1968, through present including job classification and specify race or ethnic grouping of each individual.

6. List of promotions from January 1, 1968 through present including job classification and specify race or ethnic grouping of each individual.

7. List of recruitment resources and copies of employment requests.

8. Total number of applicants and total number of applicants interviewed from January 1, 1968, through present and access to said applications upon Commission request.

9. Permission to interview under oath any agent or employee and examine any records of Motorola, Inc., relevant to Charge File No. TAL9C0165.

10. Permission to tour and observe employees at work in all facilities of Respondent in the area.

11. To provide copies of the latest

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