Smith v. Universal Services, Inc.

• Decision Date: 08 March 1972
• Docket Number: No. 71-1635.,71-1635.
• Citation: 454 F.2d 154
• Parties: Donald C. SMITH, Plaintiff-Appellant, v. UNIVERSAL SERVICES, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

454 F.2d 154 (1972)

Donald C. SMITH, Plaintiff-Appellant, v. UNIVERSAL SERVICES, INC., Defendant-Appellee.

No. 71-1635.

United States Court of Appeals, Fifth Circuit.

January 10, 1972.

On Rehearing and Rehearing March 8, 1972.

John H. Brooks, Laborde & Brooks, New Orleans, La., for plaintiff-appellant.

J. Barnwell Phelps, Phelps, Dunbar, Marks, Claverie & Sims, New Orleans, La., for defendant-appellee.

Before THORNBERRY, MORGAN and CLARK, Circuit Judges.

On Rehearing and Rehearing En Banc March 8, 1972.

THORNBERRY, Circuit Judge:

Plaintiff, a member of the Pentecostal Church, brought suit against his former employer, Universal Services, Incorporated (Universal), for alleged discriminatory employment practices under Title VII of the Civil Rights Act of 1964, Title 42, U.S.C., Sections 2000e et seq. Plaintiff alleges that his dismissal from Universal's service was arbitrary and capricious and solely the result of his religious beliefs and practices. Universal contends that plaintiff was dismissed because he walked off the job.

After filing a complaint with the Equal Employment Opportunity Commission (EEOC) and receiving notices that probable cause existed for believing that he had been fired because of his religious practices and that efforts at settlement had failed, plaintiff filed the instant suit through court-appointed counsel on November 15, 1968. After testimony by witnesses for both plaintiff and Universal, the district court held that plaintiff had failed to prove his allegations. This finding was based on the court's belief that the plaintiff's testimony, which can be found to be inconsistent and confusing in many respects, was not credible. Review of the district court's findings is limited by Fed.R.Civ. P. 52(a), and this Court cannot set aside these findings unless they are clearly erroneous and supported by less than substantial evidence. Hodgson v. First Victoria National Bank, 5th Cir. 1971, 446 F.2d 47.

Testimony at trial revealed that plaintiff had been asked by his supervisor to cease singing religious hymns on the job. Plaintiff felt this request was a result of religious discrimination on the part of his employer; the supervisor in question testified that he gave such order only to protect plaintiff from the other employees. The district court chose to believe the supervisor. Such a credibility choice is within the discretion of the district court. Even if this finding could be shown to be clearly erroneous, however, we would not find such fact to be dispositive here. No connection was ever shown between the supervisor's initial orders and plaintiff's eventual discharge. There was substantial evidence that plaintiff was warned that he would have to do his job more efficiently or he would be fired. At this point, plaintiff left his employment station without permission, despite the supervisor's warnings that if he did so he would be fired. The only evidence to the contrary of this state of facts was provided by plaintiff himself. The district court had the option to disbelieve his testimony and the fact that it did so can furnish no basis for an allegation of error at the appellate level.

Plaintiff next contends that the district court erred in failing to admit into evidence the EEOC's investigation report and finding of probable cause, a copy of which is attached in the Appendix to this opinion.

This is a case of first impression. Neither party has been able to cite any district or appellate case directly in point. This Court must therefore deal with the issue in accordance with analogous principles of evidence and our own concepts of equity and fairness.

The Civil Rights Act admittedly contains nothing to authorize the admission of the EEOC's findings into evidence. On the other hand, the statute does not prohibit such use of the agency's report. The statute obligates the EEOC, pursuant to a verified complaint by the aggrieved party, to investigate complaints of unlawful discrimination to determine whether probable cause exists to believe that the employer has engaged in discriminatory practices, and to eliminate any unlawful employment practice found by informal methods of conference, conciliation and persuasion.¹ If such efforts at conciliation fail, the aggrieved party has the opportunity to file a civil suit on his own behalf against his employer for injunctive and damage relief. 42 U.S.C.A. § 2000e-5(e)-(g).

There are two primary objections raised to the introduction of the investigation report into evidence during subsequent civil litigation. First it is contended that the report is immaterial and prejudicial to defendant's case.

It is not to be denied that under Title VII, the action of the EEOC is not agency action of a quasi-judicial nature which determines the rights of the parties subject only to the possibility that the reviewing courts might conclude that the EEOC's actions are arbitrary, capricious or an abuse of discretion. Instead, the civil litigation at the district court level clearly takes on the character of a trial de novo, completely separate from the actions of the EEOC. United States v. H. K. Porter Company, N.D.Ala.1968, 296 F.Supp. 40; King v. Georgia Power Co., supra. It is thus clear that the report is in no sense binding on the district court and is to be given no more weight than any other testimony given at trial.

This is not to say, however, that the report is inadmissible. A trial de novo is not to be considered a trial in a vacuum. To the contrary, the district court is obligated to hear evidence of whatever nature which tends to throw factual light on the controversy and ease its fact-finding burden.

The Commission's decision contains findings of fact made from accounts by different witnesses, subjective comment on the credibility of these witnesses, and reaches the conclusion that there is reasonable cause to believe that a violation of the Civil Rights Act has occurred. Certainly these are determinations that are to be made by the district court in a de novo proceeding. We think, however, that to ignore the manpower and resources expended on the EEOC investigation and the expertise acquired by its field investigators in the area of discriminatory employment practices would be wasteful and unnecessary.

The fact that an investigator, trained and experienced in the area of discriminatory practices and the various methods by which they can be secreted, has found that it is likely that such an unlawful practice has occurred, is highly probative of the ultimate issue involved in such cases. Its probative value, we believe, at least outweighs any possible prejudice to defendant. "Prejudicial" cannot be equated with "harmful" in all cases; rather it connotes "harmful," plus "non-probative." Fullerton v. Monongahela Connecting Railroad Co., D. Pa.1965, 240 F.Supp. 472; Petroleum Carrier Corporation v. Snyder, 5th Cir. 1947, 161 F.2d 323; Prudential Insurance Company v. Faulkner, 10th Cir. 1934, 68 F.2d 676, 31A C.J.S. Evidence § 159, p. 432 (1964); McCormick, Evidence §§ 151-52 (1954).

Secondly, Universal argues that the report is hearsay evidence and inadmissible for this reason. Plaintiff, admitting its hearsay character, would have us admit the report as a business record pursuant to the Federal Business Records Act, 28 U.S.C.A. § 1732. See Gillin v. Federal Paper Board Company, 2 FEP 507, 62 L.C. 6663 (D.Conn.1970). We agree that the investigation report is admissible as an exception to the hearsay rule under the federal statute.

We think that the EEOC report, consisting of a summary of the charges, a brief review of the facts developed in its investigation, and its finding of probable cause that violations exist, can be found to be analogous to accident reports admissible under the Federal Business Records Act. It is not denied that the report was prepared in the regular course of the Commission's business and in accordance with express statutory authority. 42 U.S.C.A. § 2000e-5 (e). The regularity with which such reports are made does not, however, by itself, require admissibility. It must first appear that the reports are required "for the systematic conduct of the business as a business." Palmer v. Hoffman, 318 U.S. 109, 63 S.Ct. 477, 87 L.Ed. 645 (1943).

In Puggioni v. Luckenbach Steamship Company, 2d Cir. 1961, 286 F.2d 340, the Court stated:

Although accident reports should not be admitted when the party making the report offers it for the purpose of its own exoneration from liability . . . this circuit has . . . given trial judges discretion to determine whether the circumstances surrounding accident reports made by others justify their acceptance in evidence. . . . The Federal Business Records Act should not be interpreted in a "dryly technical" way which would "reduce sharply its . . . usefulness."

286 F.2d at 344.

See also Palmer v. Hoffman, 318 U.S. 109, 63 S.Ct. 477, 87 L.Ed. 645 (1943); Bowman v. Kaufman, 2d Cir. 1967, 387 F.2d 582; Hawkins v. Gorea Motor Express, Incorporated, 2d Cir. 1966, 360 F.2d 933; McKee v. Jamestown Baking Company, 3 Cir. 1952, 198 F.2d 551.

As long as this type of investigation is not self-serving nor compiled for purposes of litigation only, it is thus admissible. Vaccaro v. Alcoa Steamship Company, 2d Cir. 1968, 405 F.2d 1133; Pekelis v. Transcontinental & Western Air, 2d Cir. 1951, 187 F.2d 122, cert. den. 341 U.S. 951, 71 S.Ct. 1020, 95 L.Ed. 1374 (1951).

The report involved in the instant case was prepared by an investigator for the EEOC, pursuant to its statutory mandate, and was not prepared in anticipation of litigation. The Commission is not a party to the litigation and can have no interest therein. The investigator had no personal involvement in the situation. There is no reason to suspect any lack of trustworthiness. All of the requirements for admissibility under Title 28, U.S.C.A., Section 1732 are, therefore, met. The district court erred when it chose to ignore the report...