New Orleans Public Service, Inc. v. Brown

• Decision Date: 16 January 1974
• Docket Number: No. 72-2446.,72-2446.
• Citation: 369 F. Supp. 702
• Parties: NEW ORLEANS PUBLIC SERVICE, INC., Plaintiff, v. William H. BROWN, III, Chairman, et al. Defendants.
• Court: U.S. District Court — Eastern District of Louisiana

369 F. Supp. 702

NEW ORLEANS PUBLIC SERVICE, INC., Plaintiff, v. William H. BROWN, III, Chairman, et al. Defendants.

No. 72-2446.

United States District Court, E. D. Louisiana.

January 16, 1974.

COPYRIGHT MATERIAL OMITTED

Michael J. Molony, Jr., Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, La., for plaintiff.

Diane S. Greenberg, E. E. O. C., Washington, D. C., for defendants.

JACK M. GORDON, District Judge:

The Plaintiff, New Orleans Public Service, Inc., instituted this action to quash an administrative subpoena duces tecum issued by the defendant, Equal Employment Opportunity Commission and to enjoin an administrative investigation currently being conducted by the defendant. Civil Rights Act of 1964, Title VII, as amended by the Equal Employment Opportunity Act of 1972, 42 U.S.C. § 2000e-9. The Equal Employment Opportunity Commission answered plaintiff's complaint and counterclaimed to compel compliance with the subpoena in question. Shortly thereafter, the defendants filed a motion, pursuant to Rule 81(a)(3) of the Federal Rules of Civil Procedure, requesting the Court to order the plaintiff to comply with the defendant's subpoena duces tecum, or alternatively, for summary judgment, under Rule 56, denying injunctive relief and directing plaintiff to satisfy the subpoena. The primary question for determination is whether the information sought in the subpoena is material and relevant to the charges of discrimination filed against the plaintiff and presently being investigated by the defendant, Equal Employment Opportunity Commission.

FACTS

A chronological background first is in order. Between May 5, 1971, and July 30, 1971, six individual charges complaining of racial discrimination in hiring, promotion, discharge and other miscellaneous conditions of employment in violation of Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e et seq., were filed with the Equal Employment Opportunity Commission (hereinafter referred to as "EEOC" or "Commission") against New Orleans Public Service, Inc. (hereinafter referred to as "NOPSI"). On January 4, 1972, a commissioner's charge of racial, religious, sex, and national origin discrimination with respect to recruitment, hiring, job assignment, seniority, promotion, representation, training, and sundry terms of employment was filed with the Commission against NOPSI and three labor unions. On or about January 26, 1972, NOPSI was served with copies of these seven charges of employment discrimination together with a request for production of certain documents. NOPSI did not comply with the request. On August 11, 1972, the EEOC issued a subpoena duces tecum in accordance with 42 U.S. C. § 2000e-9, as amended in 1972. The subpoena commanded a representative of NOPSI to appear on August 18, 1972, before the Commission with documents that purportedly were material and relevant to the charges under investigation. NOPSI timely petitioned the Commission to revoke the subpoena, but the Commission rejected NOPSI's petition on August 29, 1972. The Commission, however, did modify the subpoena duces tecum to the extent of excusing plaintiff from the production and delivery of any documents NOPSI previously had furnished the Commission in connection with other individual charges against NOPSI, which charges have been investigated and processed.

Albeit this case is not one of first impression in the employment discrimination field, it is one whose facts markedly have made an impression on the conscience of the Court. Hence, the factual allegations and accompanying legal position of the respective parties must be ventilated thoroughly at this juncture.

NOPSI contends that it has offered to produce the necessary documents and information relevant to the charges filed with the Commission by the six individuals in EEOC cases numbered TNO-1-1036, TNO-2-0057, TNO-2-0075, TNO-1-1029, TNO-1-1093, and TNO-2-0058. Reference to the individual charging parties and the departments in which they were employed or sought employment, argues NOPSI, cannot support the overly broad subpoena duces tecum requesting extensive data and documents concerning the defendant company's practices in each of its eighteen divisions. Rather, the access to the massive volumes of employment information can only be based on the charge by the Chairman of the EEOC in Case No. TNO-2-0692. NOPSI thus reasons that enforcement of the controverted subpoena duces tecum would impose such an unreasonable burden as to constitute a violation of the company's Fourth Amendment protections. Oklahoma Press Publishing Co. v. Walling, 327 U. S. 186, 66 S.Ct. 494, 90 L.Ed. 614 (1946). Additionally, since the thrust of the subpoena is founded on the commissioner's charge, NOPSI closely scrutinizes the validity, if any, of the commissioner's charge. In particular, NOPSI attacks the commissioner's charge against NOPSI for its refusal or failure to have corrected between July, 1965, and January, 1972, the imbalance between the percentage of Negroes, Spanish-surnamed Americans, members of the Jewish faith, and females employed by NOPSI in each of its departments and the percentages of those minorities within the total population of New Orleans, Louisiana. NOPSI defends its failure to grant preferential treatment to such minority groups during the aforesaid time span by alluding to Section 703(j) of the Civil Rights Act, 1964, 42 U.S.C. § 2000e-2 which provision, it contends, specifically prohibits such favoritism. NOPSI states, a fortiorari, that an invalid charge cannot support the enforcement of a subpoena that is based on such a charge. Sections 706, 709(a) and 710 of the Civil Rights Act, 1964, 42 U.S.C. §§ 2000e-5, 2000e-8, and 2000e-9. Alternatively, NOPSI proposes that Title VII places a "relevancy" limitation on any subpoena issued by the Commission, that is, that the requested information must be relevant to the charge under investigation, and, the disproportionate scope of the subpoena in contest vis-à-vis the individual charges inherently prevents the detection of a relevancy standard.

Besides constituting a burden in contravention of its Fourth Amendment rights, NOPSI indicates that it would sustain a serious economic burden if it were compelled to comply with the outstanding subpoena.

Believing the 1972 amendments to the Civil Rights Act control the case sub judice, NOPSI points out another apparent defect in this proceeding by the Commission: refusal or inability by the Commission to furnish the date, place, and circumstances of the alleged employment malpractices contained in the commissioner's charge and failure by Commissioner Brown to submit his charge under oath, pursuant to Section 706(b) of the Civil Rights Act, as amended in 1972. NOPSI hastens to add that nowhere in the commissioner's charge is it contended that said charge is an investigation of a pattern or practice of discrimination on the part of NOPSI.

Rebutting the assertions of NOPSI, the EEOC argues that there are no grounds for granting NOPSI the relief it seeks, and therefore, the subpoena should be enforced. The EEOC classifies the six individual charges of employment discrimination as follows: 1) refusal to employ Negroes because of race; 2) refusal to employ Negroes because of racial characteristics; 3) discharge because of race; 4) racially segregated job facilities; and 5) racially discriminatory terms and conditions of employment. Due to the Commission's broad investigatory powers, the EEOC submits, any one of the individual charges by itself would support the subpoena duces tecum issued in this case. The commissioner's charge, argues the EEOC, equally would warrant an indepth investigation into NOPSI's employment practices.

With respect to the commissioner's failure to delineate specific acts of discriminatory behavior, the EEOC responds that the jurisprudence clearly has sustained charges containing conclusory allegations of patterns and practices of discriminatory behavior, similar to the present charge at issue. Illustrative of this judicial attitude, the EEOC states, are Motorola, Inc. v. McLain, 484 F.2d 1339 (7th Cir. 1973), Joslin Dry Goods Co. v. EEOC, 483 F.2d 178 (10th Cir. 1973); Sparton Southwest, Inc. v. EEOC, 461 F.2d 1055 (10th Cir. 1972); Sheet Metal Workers' International Assn., Local 104 v. EEOC, 439 F.2d 237 (9th Cir. 1971). Continuing this line of reasoning, the EEOC argues that the function of an EEOC charge is merely to activate the investigative processes of the Commission, and, it is not until the investigative machinery has been operative for a reasonable duration that detailed proof of discrimination is required. In the alternative, the EEOC states that if the 1972 amendments are applicable, the information concerning the "date, place and circumstances" of the alleged discrimination, pursuant to Section 706(b) of the amended Civil Rights Act, is present in each of the seven charges. The EEOC suggests that all of the individual charges contain the date and place and at least some of the circumstances of the alleged unlawful employment practices, and, that the commissioner's charge equally specifies the statutory requisites. More particularly, the EEOC argues that the commissioner's charge alleges daily discrimination against its employees and applicants for employment in its main office and in all other employee facilities, and that the enumerated discriminatory employment practices constitute the circumstances of the alleged wrongs.

The EEOC asserts that the purpose of the statistical analysis incorporated in the commissioner's charge is to establish a prima facie case of work discrimination; see, e. g., Stamps v. Detroit Edison Co., 365 F.Supp. 87 (E.D.Mich., 1973). Moreover, the EEOC submits that Section 703(j) of the Civil Rights Act, 42 U.S.C. § 2000e-2 is not contravened through usage of these figures since that section is directed to remedies for Title VII violations and is not...