Shell Oil Co. v. United States EEOC, 80-1202-C(5)

Decision Date22 September 1981
Docket NumberNo. 80-1202-C(5),81-0230-C(5).,80-1202-C(5)
Citation523 F. Supp. 79
PartiesSHELL OIL COMPANY, Plaintiff, v. UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, et al., Defendants. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. SHELL OIL COMPANY, et al., Defendants.
CourtU.S. District Court — Eastern District of Missouri

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COPYRIGHT MATERIAL OMITTED

Donna L. Harper, St. Louis, Mo., Dianna B. Johnston, Washington, D. C., for E. E. O. C.

Thomas R. Jayne, W. Stanley Walch, Charles A. Newman, Thompson & Mitchell, St. Louis, Mo., Martin D. Schneiderman, Samuel T. Perkins, Mark B. Goodwin, Steptoe & Johnson, Washington, D. C., for defendants in No. 80-1202-C(5) and plaintiff in No. 81-0230-C(5).

Susan J. Sandler, Houston, Tex., for Shell Oil Co.

MEMORANDUM

CAHILL, District Judge.

This matter is before the Court on various pretrial motions.

On September 27, 1979, Eleanor Holmes Norton, Chair of the Equal Employment Opportunity Commission (hereinafter EEOC), initiated a Commissioner's charge against Shell Oil Company (hereinafter Shell) under sections 706 and 707 of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. The charge alleged employment discrimination on the basis of race and sex at plaintiff's refinery in Wood River, Illinois. Subsequently, W. Ed. Mansfield, District Director of the St. Louis District Office of the EEOC, issued the EEOC's first request for information. An administrative subpoena duces tecum was served on Shell May 16, 1980 by Mansfield. In response thereto, on May 23, 1980, Shell filed a petition to revoke or modify the subpoena, which was denied by Mansfield on June 9, 1980. Shell filed an appeal of the petition to revoke or modify the subpoena on June 23, 1980. Likewise, Shell's appeal was denied by Leroy Clark, General Counsel of the EEOC, around August 27, 1980. Having exhausted its administrative remedies, Shell filed an action in this Court (No. 80-1202-C(5)) in order to quash the subpoena and to enjoin the EEOC, Norton, Clark, and Mansfield from their alleged unlawful and arbitrary course of conduct. Around February 4, 1981, the EEOC filed an action in the Southern District of Illinois (now No. 81-230-C(5)) against Shell and its agent, Roger Rice, to enforce the subpoena duces tecum issued by the EEOC. The actions have been consolidated and are now before this Court.

EEOC's Motion to Strike.

The EEOC moves to strike the first, third, and fourth defenses of Shell under Fed.R.Civ.P. 12(f). That rule provides in relevant part that the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. Those defenses are:

1. FIRST DEFENSE: The subpoena may not be enforced because EEOC lacks authority to issue a subpoena to investigate a charge that is unlawfully filed;
2. THIRD DEFENSE: The subpoena may not be enforced because EEOC lacks authority to issue a subpoena that contravenes the terms of the Federal Reports Act, 44 U.S.C. § 3501 et seq.;
3. FOURTH DEFENSE: The subpoena may not be enforced because the Commission claims the authority to disclose to unnamed third parties information produced pursuant to the subpoena in contravention of Section 706b and 709e of Title VII, as amended, 42 U.S.C. 2000e-5(b) and e-8(e) and the Trade Secrets Act, 18 U.S.C. Section 1905.

EEOC claims that Shell's first defense is vague and contains insufficient facts from which an opinion can be formed as to its validity and, therefore, should be stricken. The case law indicates that a motion to strike a portion of the pleadings is a drastic remedy which is viewed with disfavor and such motions are infrequently granted. Lunsford v. United States, 418 F.Supp. 1045, 1051 (D.S.D.1976); Zamora v. Massey-Ferguson, Inc., 336 F.Supp. 588, 591 (S.D.Iowa 1972); Patrick v. I. D. Packing Company, 308 F.Supp. 821, 823 (S.D.Iowa 1969); Vernon J. Rockler and Co., Inc. v. Minneapolis Shareholders Company, 69 F.R.D. 1, 5 (D.Minn.1975). The Court should defer action on a motion to strike a pleading and leave the sufficiency of the allegations for a determination on the merits where there is no showing of prejudicial harm to the moving party. Zamora, 336 F.Supp. at 591; Patrick, 308 F.Supp. at 823. Here, EEOC has not shown that it will be prejudiced if its motion to strike is denied. Furthermore, a defense is good unless it appears to a certainty that plaintiffs would succeed despite any state of facts which would be provided in support of the defense, and any doubt as to the striking of matters in a pleading should be resolved in favor of the pleading. Vernon J. Rockler and Co., Inc., 69 F.R.D. at 5; Hunter v. International Systems & Control Corp., 56 F.R.D. 617, 633 (W.D.Mo.1972). This Court cannot say with certainty that the EEOC would succeed despite any state of facts which would be provided in support of Shell's defense. Therefore, the Court in its discretion denies EEOC's motion to strike as to Shell's first defense. See Vernon J. Rockler and Co., Inc., 69 F.R.D. at 5.

EEOC asserts that Shell's third defense should be stricken because the Federal Reports Act is inapplicable to subpoenas. EEOC then cites the Court to Adams v. F. T. C., 296 F.2d 861, 866 (8th Cir. 1961), cert. denied, 369 U.S. 864, 82 S.Ct. 1029, 8 L.Ed.2d 83 (1962), which held that a subpoena meets the requirements for enforcement if the inquiry is: (1) within the authority of the agency; (2) the demand is not too indefinite, and (3) the information sought is reasonably relevant. See Blue Ribbon Quality Meats, Inc. v. F. T. C., 434 F.Supp. 159, 162 (W.D.Mo.1976); United States v. Empire Gas Corp., 419 F.Supp. 34, 37 (W.D.Mo. 1976). Although the Court does not attempt to rule on the merits, it cannot say at this time that the subpoena is not within the authority of the agency, that the demand is insufficient, or that the information sought is irrelevant. Therefore, the Court in its broad discretion denies EEOC's motion to strike as to Shell's third defense. See Vernon J. Rockler and Co., Inc., 69 F.R.D. at 5.

The Court having considered EEOC's argument to strike Shell's fourth defense, denies the motion to strike as to Shell's fourth defense on the same grounds that it denied the motion as to Shell's first and third defenses. Accordingly, EEOC's motion to strike is denied.

EEOC's Motion For Protective Order That Discovery Not Be Had.

EEOC moves for a protective order under Fed.R.Civ.P. 26(c) forbidding the discovery via interrogatories and the first request for production of documents sought by Shell. First, EEOC challenges Shell's third defense in its answer. This same challenge was enunciated in EEOC's motion to strike. This argument for the motion for protective order is rejected, therefore, for the reasons set out by the Court in the denial of the motion to strike.

In regard to Shell's interrogatories No. 11-13, the motion for protective order is stayed pending the filing of a certificate of privilege by the EEOC with respect to these interrogatories. (See, memorandum in support of applicant's motion for protective order, p. 4.)

After careful review of the motion and the memorandum in support of the protective order, the Court finds that EEOC's motion for protective order is denied as to Shell's interrogatories No. 1-10 and 14-17 and Shell's first request to inspect and copy documents.

Shell's Motion For Continuance.

Shell moves to continue the hearing of the Court's order to show cause scheduled for April 17, 1981 until May 21, 1981, or until 45 days after EEOC has provided full answers to Shell's first interrogatories. Since the hearing on the order to show cause was held on May 15, 1981 in this Court, the motion for continuance is denied as moot.

EEOC's Motion For Reconsideration.

EEOC moves the Court to reconsider its order of March 6, 1981 denying defendant's motion to dismiss civil action No. 80-1202C(5). The grounds for the motion for reconsideration are:

1. Denial of the motion to dismiss and allowance of discovery by plaintiff will affirmatively harm the ability of the EEOC to carry out its mandate under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.
2. This is simply a motion to quash a subpoena and as such is a summary proceeding.
3. The recent amendment to the Federal Reports Act clarifies Congressional intent not to include investigatory material within the Act's coverage.

In order to systematically approach the present motion for reconsideration, the Court will analyze the original motion to dismiss on an issue by issue basis.

EEOC's first argument is that the Court lacks subject matter jurisdiction. This action is brought under U.S.Const. amend. V; the Declaratory Judgment Act, 28 U.S.C. §§ 2201 et seq.; the Administrative Procedure Act, 5 U.S.C. §§ 551 et seq., 701 et seq.; the Federal Reports Act, 44 U.S.C. §§ 3501 et seq.; the Trade Secrets Act, 18 U.S.C. § 1905, and 28 U.S.C. §§ 1331, 1337, 1391(e), and 1651. 28 U.S.C. § 1331 provides that the district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States. Since the instant matter arises under an amendment of the United States Constitution and several United States laws, this Court has subject matter jurisdiction under 28 U.S.C. § 1331.

Defendant next argues that plaintiff has failed to state a claim upon which relief can be granted under Fed.R.Civ.P. 12(b)(6). This contention is argued via four subsections entitled: A. Federal Reports Act, B. Confidentiality, C. There is Sufficient Justification For Issuance of a Commissioner Charge, and D. The Subpoena Should Not Be Quashed.

A. Federal Reports Act.

Shell asserts in Counts IV and V of the complaint that the information sought by the EEOC from Shell in its subpoena and October 1979 Request for Information was requested in violation...

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