Motorola, Inc. v. McLain
| Decision Date | 10 September 1973 |
| Docket Number | No. 72-1748,72-1749.,72-1748 |
| Parties | MOTOROLA, INC., Petitioner-Appellee, v. Elmer W. McLAIN, Regional Director, Equal Employment Opportunity Commission of the United States, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Julia P. Cooper, Charles Reischel, Equal Employment Opportunity Commission, Washington, D.C., for defendant-appellant.
Robert V. Nystrom, Chicago, Ill., for petitioner-appellee.
Before FAIRCHILD and SPRECHER, Circuit Judges, and REYNOLDS, District Judge.*
These two appeals require us to delineate the scope of the Equal Employment Opportunity Commission's investigatory powers under Title VII of the Civil Rights Act of 1964.
In No. 72-1748 (the Taggart case), Lillian Taggart filed a charge on February 2, 1970, with the Equal Employment Opportunity Commission (EEOC) pursuant to Section 706(a) of Title VII of the 1964 Civil Rights Act (42 U.S.C. § 2000e-5(a) (1971)), alleging that petitioner, Motorola, Inc., had discriminated against her "because of her race (Negro)."
Ms. Taggart's affidavit alleged that she commenced employment at petitioner's Communications Plant, 4545 West Augusta Boulevard, Chicago, as an assembler on April 27, 1964, and worked as productivity clerk from 1966 to 1967 and as an inspector, tester, analyzer and repairer from 1967 to September 24, 1970, the date the affidavit was executed; that in April, 1969, she was told by Assistant Foreman, Chuck Mortell, to prepare herself to fill a supervisory vacancy by learning more about testing equipment and analyzing procedure inasmuch as her supervisor, Leslie Chapman, was transferring to another department and Mortell expected that she would fill that vacancy; that about 18 days later Chapman informed her that his vacancy was to be filled by a white, male, newly-hired employee, Tom Donley; that when she complained to Mortell, he said that Donley wasn't filling the vacancy but "was merely learning the operation" and if he did not work out, she would replace him; that she complained to Dick Brennan in the personnel department, who said he would look into the matter and about one month later told her Donley was a technician, not a supervisor; that in October, 1969, Mortell told her that Donley was her supervisor; that she was then in the highest classification in her department section and the next step would be group leader, key operator or supervisor; that Donley was frequently absent and was discharged in January, 1970, for poor attendance; that Jim Rich, a supervisor from another department, took over until March 23, 1970, when he was replaced by Stanley Swarek, who was transferred from another department where he had been supervisor; that her complaints to the petitioner went unanswered; that no equal employment posters were on the petitioner's bulletin boards; that in 1969 there were 10 black employees in her department and at present there were two; and that the petitioner suggested that she take a technician's test, but she protested that no white supervisors were required to take this test.
In No. 72-1749 (the Shannon case), Christine Shannon filed a charge on February 4, 1970, with EEOC, alleging in connection with her employment at petitioner's Augusta Boulevard plant, the following:
In accordance with Section 706(b) of Title VII (42 U.S.C. 2000e-5(b)), requiring charging parties to exhaust their remedies before state fair employment practices commissions, EEOC deferred the two charges until receiving notification on February 26, 1970, that Lillian Taggart's charge, and on March 30, 1970, that Christine Shannon's charge had been dismissed by the Illinois Fair Employment Practices Commission. The charges were considered filed with EEOC upon termination of state proceedings and upon receipt by EEOC of notification thereof pursuant to Section 1601.12(b)(IV) of EEOC Procedural Regulations (29 C.F.R. § 1601.12b(4) (1973)).
On September 29, 1970, an investigator from EEOC's Chicago office attempted to serve both charges on the petitioner, whose representatives on advice of counsel refused to receive service and refused to produce requested documents and information.
On May 5, 1971, EEOC served petitioner with a Demand for Access to Evidence in both cases. On May 17, petitioner filed two separate actions in the district court pursuant to Section 710(c) of Title VII (42 U.S.C. § 2000e-9(c)) praying for modification of the demand as to certain of its requirements.
On June 14, 1972, the district court, upon appeal from a magistrate who heard arguments by counsel for petitioner and EEOC, ordered in the Taggart case that the petitioner need not comply with the Demand and neither produce nor grant access to:
1. The most recent E.E.O.-1 form regarding the makeup of the work force in the plant located at 9401 West Grand Avenue, Franklin Park, Illinois.
2. All records and personnel relating to Charge No. TCHO 0794 the Taggart charge.
3. The complete personnel records maintained by Motorola, Inc. for the following:
if such persons are employed by Motorola, Inc.
4. Home address and telephone number of James Mortell if such person is employed by Motorola, Inc.
5. Home address and telephone number of Richard Brennan, if such person is employed by Motorola, Inc.
6. A tour of the plant facilities located at 4545 West Augusta Boulevard, Chicago, Illinois.
In the Shannon case, the district court ordered on June 14, 1972, that the petitioner need not comply with the Demand and neither produce nor grant access to the following:
List of all incumbent employees hourly and salaried, designating race, sex, present labor grade, present job classification, present department, job code (or other applicable code), and all seniority dates for whatever purpose used by the company. If seniority is by job classification or department, such list shall be prepared by seniority date. If no such seniority date is maintained such list shall be furnished alphabetically by name of employee.
EEOC has appealed both orders.
Section 709(a) of Title VII (42 U.S.C. § 2000e-8(a)) provides that "the Commission or its designated representative shall at all reasonable times have access to ... and the right to copy any evidence of any person being investigated or proceeded against that relates to unlawful employment practices ... and is relevant to the charge under investigation." At the time the charges were filed, Section 710(a) provided that "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." 42 U.S.C. § 2000e-9(a) (1971) (emphasis added).
In General Employment Enterprises, Inc. v. Equal Employment Opportunity Commission, 440 F.2d 783, 784 (7th Cir. 1971), we enforced the EEOC's Demand for Access to Evidence under Sections 709(a) and 710(a) as "consistent with the broad remedial purposes of the Act which could only be thwarted by sustaining technical defenses of alleged violators."
Most of the courts which have considered the scope of the investigatory powers of EEOC have agreed that they are broad. Blue Bell Boots, Inc. v. Equal Employment Opportunity Commission, 418 F.2d 355, 358 (6th Cir.1969) (); Parham v. Southwestern Bell Telephone Co., 433 F.2d 421, 425 (8th Cir.1970) (). One district court which sought to find that "Congress intended to deny the Commission the broad investigatory powers of other federal agencies ..." was expressly reversed by the Court of Appeals. Graniteville Co. v. Equal Employment Opportunity Commission, 316 F.Supp. 1177, 1185 (D.S. Car.1969), rev'd, 438 F.2d 32, 39 (4th Cir.1971).
The only voice arguing for a presumed narrower grant of authority is Georgia Power Co. v. Equal Employment Opportunity Commission, 412 F.2d 462, 467-468 (5th Cir.1969) and that view was based primarily on Senator Dirksen's question during debate in 1964: "What protection is afforded to an employer from fishing expeditions by investigators, in their zeal to enforce Title VII?" 2 Statutory History of the United States: Civil Rights 1176 (B. Schwartz ed. 1970).1 The "fishing expedition" language has been repeated occasionally (Parliament House Motor Hotel v. Equal Employment Opportunity Commission, 444 F.2d 1335, 1339 (5th Cir.1971)) and has been echoed by the petitioner in the present appeals. Brief for Appellee at 7, No. 72-1748.
When the Supreme Court was considering Federal Rule of Civil Procedure 26(b)(1), which reads in part that discovery may be obtained "regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action," it said in Hickman v. Taylor, 329 U.S. 495, 507, 67...
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