New Orleans Public Service, Inc. v. Brown, 74-1697
| Decision Date | 27 January 1975 |
| Docket Number | No. 74-1697,74-1697 |
| Citation | 507 F.2d 160 |
| Parties | 9 Fair Empl.Prac.Cas. 134, 9 Empl. Prac. Dec. P 9928 NEW ORLEANS PUBLIC SERVICE, INC., Plaintiff-Appellee, v. William H. BROWN, III, Chairman, et al., etc., Defendants-Appellants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
William A. Carey, Gen. Counsel, William H. Robinson, Associate Gen. Counsel, Isabelle R. Cappello, Asst. Gen. Counsel, Diane S. Greenberg, Joseph P. McCormick, John F. Goemaat, Attys., Joseph T. Eddins, Associate Gen. Counsel, Beatrice Rosenberg, Atty., Charles L. Reischel, Ramon V. Gomez, EEOC, Washington, D.C., Charles White, EEOC, New Orleans, La., for defendants-appellants.
Michael J. Molony, Jr., New Orleans, La., for plaintiff-appellee.
Howard L. Mocerf, Jerry Kronenberg, Chicago, Ill., Milton Smith, Gen. Counsel, Richard Berman, Labor Relations Counsel, Washington, D.C., for Chamber of Commerce, amicus curiae.
Appeal from the United States District Court for the Eastern District of Louisiana.
Before TUTTLE, WISDOM and GOLDBERG, Circuit Judges.
This is an appeal by the Equal Employment Opportunity Commission and individual complaining parties from an injunction forbidding the Commission from pursuing any investigation of the New Orleans Public Service, Inc. and several labor organizations pursuant to a charge filed by EEOC Commissioner William H. Brown, III. Viewed against a backdrop of the many proceedings pending and disposed of in the Courts of this Circuit dealing with the provisions of Title VII of the Civil Rights Act of 1964 (Equal Opportunity Act) (42 U.S.C. 2000e-9), we conclude that were this decision of the trial court to stand it would render a substantial part of Title VII a nullity. We therefore reverse.
Starting out as a run-of-the-mill Commissioner's charge, 1 Commissioner Brown filed his charge on January 4, 1972 following receipt by the Commission of six individual charges of employment discrimination filed between May 5, 1971 and July 30, 1971. These individual charges allege that the company had violated Title VII by refusing to hire blacks, unjustly discharging blacks, systematically excluding blacks from employment, maintaining segregated facilities, and allowing the harassment of blacks. After the Commissioner's charge had been served on the employers with a request for access to information relevant to the Commission's investigation of the charges and after the request had been ignored the Commission caused an administrative subpoena to be served on the company on August 11, 1972. On August 18 the company petitioned the Commission to revoke the subpoena, which petition was denied on August 29, 1972, although the subpoena was modified to the extent that such information as had been previously submitted in connection with other Commission investigations of NOPSI need not be again produced. The Commission also stated in its response that it would copy the subpoenaed documents at its own expense or make arrangements properly to reimburse the company.
On September 14, the company filed a complaint with the district court asking that the Commission be enjoined from enforcing the subpoena duces tecum and from further investigating the Commissioner's charge. The Commission, counterclaimed for enforcement of its subpoena. On November 20, 1972 the Commission moved the district court for judgment pursuant to Rule 81(a)(3), or in the alternative, for summary judgment. After an oral hearing was held at which company officials testified to the burdensome nature of the compilation of records that would be necessitated by enforcing the subpoena, more than a year later, in January, 1974, the trial court concluded both that the enforcement of the subpoena would be too burdensome, in that it required a compilation of data by the utility company, and that the enforcement of the subpoena was not justified because Commissioner Brown's charge was invalid. The court thus enjoined any further investigation under the charge.
Under the requirements of the statute, as paraphrased by the court: '(A) commissioner first must have had reasonable cause to believe that the discriminatory practice actually did exist, and further, the Commission must have presented a concise statement of facts on which the charge rested.' The court determined that the 'facts' as found by the court 'disclose(d) no basis for a reasonable cause by the charging commissioner to believe that . . . discriminatory practices actually did exist.'
The trial court was under no illusions as to the unique position which it took with respect to the Commissioner's charge. Neither the court itself nor NOPSI in its brief in this Court points to a single decided case in which a charge as fully documented as the one before us has been held to be insufficient for the purpose of commencing the investigatory procedures by the Commission. 2
Since the charge filed by Commissioner Brown is the all-important element in the case we consider it necessary to quote it in full to show how completely the trial court misunderstood its responsibility when faced with the request for the enforcement of a subpoena as authorized under 709(a), 42 U.S.C. 2000e-8(a), 710, 42 U.S.C. 2000e-9 (Supp. II 1972) and 161 Title 29 which is incorporated by reference as to the subpoena power.
The charge was worded as follows:
'Pursuant to Title VII, Section 706(a) of Civil Rights Act of 1964, I charge the following employer and unions with unlawful employment practices:
New Orleans Public Service
317 Barone Street
New Orleans, Louisiana and
Cooperative Power Division Employer Association of New Orleans
New Orleans, Louisiana
Cooperative Electric Distribution Division
Employees Association of New Orleans
New Orleans, Louisiana
Cooperative Gas Department Employees Association of New Orleans
I have reasonable cause to believe that the above employer and unions are within jurisdiction of the Equal Employment Opportunity Commission and have violated Section 703(a), (c), and (d) of the Civil Rights Act of 1964 by discriminating against Negroes, Spanish Surnamed Americans, Jews and females on the basis of race, national origin, religion and sex with respect to recruitment, hiring, job assignment, seniority, promotion, representation, and other terms and conditions of employment.
1. Respondent employer discriminatorily refuses or fails to recruit and hire Negroes, Spanish Surnamed Americans, Jews and females in the same manner it recruits and hires Caucasians. A. Of a total company employment of 3052, 695 (22.8%) are Negro. The population of New Orleans is 45% Negro. B. The company employs 1 Spanish Surnamed American. The estimated Spanish Surnamed population of New Orleans is 5%. C. Females account for 248 (8.1%) of the company's total employment. 2. Respondent employer discriminatorily places Negroes, and females in traditionally relegated or lower-paying jobs. A. Of 1,117 white collar workers, 24 (2.1%) are Negro. Of these 24 Negro white collar workers 14 (58%) are office and clerical workers.
There is a total of 1877 blue collar workers. Negroes hold 617 (32.9%) of the blue collar jobs and account for 53 (86.9%) of laborers and 54 (93.1%) of all service workers.
Females hold 238 (21.3%) of all white collar jobs. Of the female white collar workers 221 (93%) are office and clerical employees. Only 2 (0.1%) hold blue collar jobs.
3. Respondent employer discriminatorily limits and restricts Negroes, Spanish Surnamed Americans and females from higher-paying positions as officials and managers, professionals and technicians. 4. Respondent employer discriminatorily limits and restricts Negroes, Spanish Surnamed Americans and females in certain job categories. 5. Respondent employer discriminatorily maintains segregated departments based on race and sex. 6. Respondent employer discriminatorily maintains a seniority system that discriminates against Negroes, Spanish Surnamed Americans and females. 7. Respondent employer discriminatorily fails to provide Negroes, Spanish Surnamed Americans, Jews and females with equal job opportunities benefits and promotions afforded other employees. 8. Respondent employer discriminatorily fails to provide equal training opportunities to Negroes, Spanish Surnamed Americans and females. 9. Respondent Union discriminatorily fails equally to represent Negores, Spanish Surnamed Americans and females. 10. Respondent Union discriminatorily restricts Negroes, Spanish Surnamed Americans and females from its membership. 11. Respondent employer and union have further discriminated against Negores, Spanish Surnamed Americans, Jews, and females in all policies and practices, like, related to, or growing out of the specific practices enumerated above.
The class aggrieved includes, but is not limited to, all persons who have been and continue to be or might be adversely affected by the unlawful practices complained of herein.
This charge applies to the home office and all of the employees' facilities.'
As we have stated the trial court cited no case, and none is cited by the appellant, to conflict with the plethora of cases holding that charges similar to that involved here, even without the statistical information which this charge contains,...
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