GRANITEVILLE CO. (SIBLEY DIV.) v. EQUAL EMPLOY. OP. COM'N

SOBELOFF, Circuit Judge:

This case arises under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Appellee Graniteville Company, Sibley Division, petitioned the District Court to set aside a "Demand for Access to Evidence" served by the Equal Employment Opportunity Commission (EEOC). The Commission cross-petitioned for enforcement of its Demand and now appeals from the Order, 316 F.Supp. 1177, setting the Demand aside.

On February 12, 1968, the EEOC received an unsworn charge of discrimination against Graniteville from Edward Price and James C. Walker, two Negro employees of the company's Sibley Division in Augusta, Georgia. A formal, sworn charge was perfected on March 26, 1968, by Price with the assistance of an Equal Employment Opportunity Officer. In substance that charge alleged that (1) Negroes are discriminated against in promotion policies; (2) Negroes are harassed, placed in fear of job loss, and subjected to different conditions than white employees; (3) concession stands, locker and toilet facilities are segregated on the basis of race; (4) Negroes are hired for traditionally Negro jobs.1

The EEOC undertook an investigation of Price's charge and requested Graniteville to make available certain documentary materials. Much of the evidence sought was supplied over the next several months. By a letter dated July 12, 1968, however, Graniteville declined to supply further information requested by the EEOC. The Commission then served Graniteville with a Demand for Access to Evidence seeking three items of documentary evidence: (1) the key to a number code indicating the department and job classification assignments of all employees of the Sibley Mill as used in a computer list supplied to the EEOC on June 4, 1968; (2) a list showing the date of hire of all employees on the computer list hired subsequent to July 1, 1965; (3) a list showing the job into which each employee on the computer list had been initially hired at the Sibley Mill.

The response of the company was to file a Petition to Set Aside the Demand.2 After the EEOC cross-petitioned for enforcement, the court held several hearings on the petitions, requiring Price and his attorney to be present at the last hearing in order that the court might determine whether he was "aggrieved" in the terms of the Act. Price's attendance was required by the court over the objection of the EEOC. The court granted the Petition to Set Aside the Demand on the grounds that (1) Price is not a person claiming to be aggrieved under the Act and therefore does not have standing to initiate Commission proceedings, (2) the charge was invalid for failure to set forth the facts upon which it was based, and (3) the information sought by the EEOC was beyond the scope of the Commission's investigatory powers and irrelevant to the investigation of the charge. Disagreeing with these conclusions, we reverse and remand.

I.

Standing to Initiate Commission Proceedings

Graniteville argues, and the court below held, that Price is not an aggrieved party because he did not reveal any particular manner in which he personally was aggrieved. Yet his charge filed with the EEOC indicates that he has been discriminated against because of his race, that the company maintains racial classifications of jobs, fails to promote members of Price's race or give them the consideration for better jobs that white employees receive, and that members of his race are harassed, placed in fear of losing employment, and relegated to the use of segregated concession stands and locker and toilet facilities. These allegations are more than sufficient to establish standing in Price to initiate Commission proceedings.

A. Standards for a Valid Charge

We do not deny the proposition put forth by Graniteville that the EEOC is without jurisdiction to proceed in the absence of a valid charge. See Equal Employment Opportunity Commission v. Union Bank, 408 F.2d 867 (9th Cir. 1969). However, the statute quite clearly requires only that a charge be filed "by a person claiming to be aggrieved" by an employer, employment agency, or labor organization engaged in an unlawful employment practice, 42 U.S.C. § 2000e-5 (emphasis added). When an individual fills out an EEOC form entitled "Charge of Discrimination," checks a box indicating discrimination because of "Race or Color," names a respondent in answer to the question "Who discriminated against you?", indicates "The most recent date on which this discrimination took place," and alleges the existence of racially discriminatory employment practices in response to the instruction "Explain what unfair thing was done to you," we think it plain enough that he is claiming to be aggrieved within the statutory meaning of Title VII.

The EEOC is correct in its position that, in the context of Demand enforcement proceedings, "Title VII contains no provision authorizing a general inquiry into the sufficiency of the evidence supporting a charge," as the court below undertook in this case. The EEOC in its investigation is seeking only to determine the existence of reasonable cause to believe that the charge is true. See 42 U.S.C. § 2000e-5(a). In conducting hearings into the aggrieved status of the charging party the court required the EEOC to make a reasonable cause showing as a prerequisite to enforcement of the Commission Demand issued in the course of an investigation designed to determine the existence of reasonable cause. That is not only to place the cart before the horse, but to substitute a different driver for the one appointed by Congress. The statutory standard to be applied in a Demand enforcement proceeding is one of relevancy and materiality, not one of reasonable cause to believe the charge is true. 42 U.S.C. § 2000e-9(a).

Such judicial hearings into the merits of the charging party's allegations also frustrate congressional intent by entailing extensive delay in the disposition of Title VII cases. We have previously noted that there can be no doubt "that Congress intended the remedies provided to be timely and effective." Johnson v. Seaboard Air Line Railroad Company, 405 F.2d 645, 651 (4th Cir. 1968). More than a year elapsed between the filing of Graniteville's petition and the granting of the Order setting aside the Demand for Evidence. Such delays are clearly to be avoided if possible and are not justified by examinations into the aggrieved status of the charging party during Demand enforcement proceedings.

B. The Title VII "Aggrieved" Party

The court also erred in holding that Price was not claiming to be aggrieved because his charge did not "reveal any particulars" in which he was aggrieved. Employer unlawful employment practices include discrimination on the basis of race "against any individual with respect to his compensation, terms, conditions, or privileges of employment" and classifying employees on the basis of race "in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee."3

If, as alleged, Graniteville discriminates on the basis of race in making job assignments, promoting employees, and operating the facilities it provides for the benefit of its employees, Price unquestionably is being classified in a manner and subjected to terms and conditions of employment which violate the prohibitions of Title VII. Proof of the allegations contained in Price's charge would as effectively establish violations of the Act and affirm Price's status as an aggrieved party as if the alleged practices were written into Price's employment contract as avowed terms and conditions of employment. Judge Gray of the Middle District of Tennessee expressed the controlling principle well in Hall v. Werthan Bag Corp., 251 F.Supp. 184, 186 (M.D.Tenn.1966):

It is for just this reason that a Title VII suit alleging a discriminatory promotion policy is not mooted by the plaintiff's acceptance of a promotion from the defendant subsequent to filing suit. Jenkins v. United Gas Corp., 400 F.2d 28 (5th Cir. 1968). Noting that under the Title VII structure enforcement of nondiscrimination in employment is left largely to private action, the Fifth Circuit rejected the mootness argument on the grounds that "[w]hether in name or not, the suit is perforce a sort of class action for fellow employees similarly situated." Id. at 33. The logic of that decision is pertinent here. Under Graniteville's reasoning the party would no longer be aggrieved after accepting the promotion, would no longer have standing to file a charge with the EEOC, and therefore would no longer be entitled to maintain a Title VII suit against his employer.

We also take note of the Fifth Circuit's holding that a charging party may even be aggrieved by employment practices to which he is not immediately subject. Carr v. Conoco Plastics, Inc., 423 F.2d 57 (5th Cir. 1970), aff'g on the opinion of the District Court, 295 F.Supp. 1281 (N.D.Miss.1969); cf. Cypress v. Newport News General Hospital Ass'n, 375 F.2d 648 (4th Cir. 1967). In Carr the court upheld the standing of plaintiffs, allegedly denied employment with the defendant because of their race, to challenge such alleged internal policies of the defendant as racial classification of jobs and segregation of facilities. The allegation by Price in the case at hand that he personally and the class he represents are subject to defendant's discriminatory employment policy is more than sufficient to establish his standing to initiate EEOC proceedings though he makes no claim that the policy has been applied to him in a specific instance.

II.

Specificity of the Charge

Section 706(a), 42 U.S.C. § 2000e-5(a), provides in pertinent part:

Graniteville contends that the charge in this case is deficient in setting forth the facts upon which it is based since it "contains no names, incidents, dates, jobs, places or related information." The error in this construction of the statute is best revealed by examining the role of the charge in Title VII proceedings.

Charges are filed with the EEOC by lay-complainants who are unfamiliar with the niceties of pleading, and nearly always are without the assistance of counsel. The Commission then sets about a nonadversary investigation (in which respondents are encouraged to submit whatever evidence and arguments they regard as relevant) in an effort to determine only whether reasonable cause exists to believe that the charge is true. Having reached a finding of reasonable cause, the EEOC still is without authority to take any action against the respondent and is empowered only to "endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion." 42 U.S.C. § 2000e-5(a). If the respondent will not be conferred with, conciliated, or persuaded, the EEOC has no more role to play and the charging party is left to his own devices in the federal courts.

The purpose of the charge under section 706 is only to initiate the EEOC investigation, not to state sufficient facts to make out a prima facie case. The parenthetical clause in section 706(a) only requires a sufficient allegation to give the EEOC notice of what it is to investigate and put the respondent on notice of the practice or violation with which it is charged.

The scope of prohibited practices under Title VII is broad. The section 706(a) requirement that charges state the facts on which they are based must accordingly be given a flexible interpretation as applied to allegations of different unlawful employment practices. If a charging party is alleging a specific incident as a violation of Title VII, such as denial of a requested promotion or the termination of his employment, it may be appropriate to require some degree of specificity of the charge's allegations. However, sophisticated general policies and practices of discrimination are not susceptible to such precise delineation by a layman who is in no position to carry out a full-fledged investigation himself. If a respondent employer's policy is to initiate promotions without requiring applications from its employees, there may be no specific denial of promotion that an aggrieved charging party can point to. Long observation of plant practice may bring the realization that he and his black coemployees are not getting anywhere. Charging parties in such cases should not be called upon to specify the dates when raises should have been granted or when promotions were offered to whites but not to equally qualified blacks. This is precisely the type of information that the EEOC was empowered to ascertain from company records by utilization of its subpoena powers under sections 7094 and 7105. To require the charging party to develop that evidence himself before filing a charge would be tantamount to requiring a prima facie case as an element of the initial charge, thus altering the nature of the EEOC investigation. This is a plain distortion of the roles prescribed by Congress for the charging party and the EEOC.

The allegations of Price's charge are quite sufficient to inform the EEOC of what practices it is to investigate and notify the respondent of the alleged practices it will be called upon to defend. The charge does not simply allege in conclusory terms the existence of Title VII violations, but specifies the existence of a discriminatory promotion policy, racially classified jobs, and specific segregated facilities. The law requires no more.

The Sixth Circuit has recently given the specificity provision of section 706(a) the same interpretation we do. Bowaters Southern Paper Corp. v. Equal Employment Opportunity Commission, 428 F.2d 799 (6th Cir. 1970), involved a Demand enforcement proceeding pursuant to the investigation of a charge filed by an EEOC Commissioner.6 Commissioner's charges, like those of private complainants, are subject to the section 706(a) requirement that they set forth the facts on which they are based. In terms of degree of specificity, the charge in Bowaters cannot be distinguished from the charge filed by Price. The Bowaters charge read:

Id. at 800.

In response to the argument that this charge was not sufficiently specific, the court stated, "In fact, it is difficult to see what additional information the Commissioner should set forth as facts supporting his charge." Id. at 800. We concur and note as well that if the argument of Graniteville and the Bowaters Southern Paper Corporation were accepted, charges initiating EEOC investigations would be held to a significantly higher standard than complaints filed in federal court by the Attorney General in Title VII civil actions.7 See United States v. Gustin-Bacon Division, Certainteed Products Corp., 426 F.2d 539 (10th Cir. 1970). That a lay complainant initiating a conciliation procedure might be held to a more exacting pleading standard than the nation's highest legal officer in filing a suit for injunctive relief is too great an anomaly to be attributed to Congress.

III.

Scope of the EEOC Investigation

The District Court asserted that:

Our reading of the legislative history does not support this conclusion but suggests, on the contrary, that the investigatory powers of the EEOC were intended to equal in scope those granted the National Labor Relations Board under the Taft-Hartley Act, 29 U.S.C. §§ 151 et seq., 161.

The scope of the investigatory powers of the EEOC is set forth in the following two sections of Title VII:

As passed by the House, section 709(a) used the clause "that relates to any matter under investigation or in question," for which the Senate substituted "that relates to unlawful employment practices covered by this title and is relevant to the charge under investigation." The original language, taken verbatim from the Taft-Hartley Act, 29 U.S.C. § 161(a), was intended by its authors to encompass the same powers granted the NLRB.8

Turning now to section 710, this provision underwent a more sweeping revision in the Senate. The House version would have incorporated by reference the provisions of sections 9 and 10 of the Federal Trade Commission Act, 15 U.S. C. §§ 49 and 50. The Senate substituted language as subsection 710(a) parallel to subsection 709(a) and spelled out in subsections 710(b) through 710(d) the means of enforcement of Commission Demands for Access to Evidence. The result was to narrow the Commission's powers by removing criminal penalties in connection with the subpoena power and denying the Commission power to compel incriminating evidence in exchange for grants of immunity.9

Graniteville further maintains that the language of the Senate amendments itself evidences an intent to restrict the scope of the subpoena powers afforded by the House version of Title VII. Specifically, it is argued from the change in language that

We think the change in language was simply designed to emphasize the inability of the EEOC to undertake an investigation in the absence of a previously filed charge — a requirement already stipulated by the bill's sponsors, as is made abundantly clear by the statement of Senators Clark and Case as bipartisan floor managers for Title VII in the Senate.10 Congress sought to control mere "fishing expeditions" by requiring investigations to be preceded by the filing of a charge by a party claiming to be aggrieved or by a Commissioner with sufficient prior information to have reasonable cause to believe that a statutory violation had occurred. The amendment makes clear not that the EEOC may not subpoena all evidence that "relates to any matter under investigation or in question," but that properly filed charges are the only "matters" which can be "under investigation or in question."

Aside from the language and legislative history of the investigatory powers provision of Title VII, the District Court reasoned that because the Commission's only tools of enforcement are voluntary conference, persuasion, and conciliation, it is not a regulatory body as the NLRB is and "should not be supposed to possess the same broad powers of investigation." To the contrary, unlike the NLRB, which has the assistance of high-priced union and employer lawyers, each anxious to prove the justice of his client's case, the EEOC was intended to carry the full burden of investigating minimally informative charges filed by unrepresented lay-complainants. It seems to us, rather, that the EEOC should be supposed to possess powers at least as broad as those granted the NLRB to enable the Commission to compensate for the absence of a documented legal brief from the charging party. We would align ourselves with the Third Circuit in concluding that

The only remaining question is whether the information sought by the EEOC in this case is relevant or material to the charge being investigated. We disagree with the conclusion of the court that the EEOC investigation "exceeds the reasonable scope of its authority." The Commission, already provided with a computer list of all employees working in the Sibley Mill, sought the dates of hire for all employees hired since July 1, 1965, the job classification into which each employee was initially hired, and a key to the number code used in the computer list to identify department and job classification assignments. Supplying the computer list with its code designations, while withholding the key, rendered that nominal compliance meaningless. Viewing the question more broadly, the information sought is all highly relevant and material to a charge alleging the existence of a discriminatory promotion policy and classification of jobs by race. Price's charge alleges the existence of at least plant-wide policies and the requested information would seem to contain very direct evidence of the existence or nonexistence of such policies.

Even had Price limited his charge to allegations of personal discrimination or departmental discrimination we would hesitate to characterize the desired information as irrelevant and immaterial. Evidence of plant-wide discrimination seems most relevant to a charge that a particular department adheres to a discriminatory policy or that particular action taken was racially motivated. We note with approval the interpretation of a leading commentator on Title VII:

And we agree wholeheartedly with the recent opinion of the Sixth Circuit in Blue Bell Boots, Inc. v. Equal Employment Opportunity Commission, 418 F.2d 355, 358 (6th Cir. 1969):

In the instant case, the EEOC Cross-Petition for Enforcement of its Demand should have been granted.

Reversed and remanded for further proceedings consistent with this opinion.

BOREMAN, Circuit Judge (dissenting):

I. THE INVESTIGATORY POWERS OF THE EEOC

The investigatory powers of the Equal Employment Opportunity Commission are granted by §§ 709 and 710 of Title VII of the Civil Rights Act of 1964. 42 U.S.C. §§ 2000e et seq.:

The majority apparently holds that Congress intended that these sections give the EEOC investigatory powers equal in scope to those granted the National Labor Relations Board under the Taft-Hartley Act, 29 U.S.C. §§ 151 et seq., 161. As evidence of such asserted intent, the majority opinion refers to legislative history showing that the House version of 709(a) conformed to the language of the Taft-Hartley Act giving the EEOC power to examine and copy evidence "that relates to any matter under investigation or in question." The majority merely notes, in passing, that the Senate substituted language for this clause which limits the Commission's right to require disclosure of evidence that is "relevant to the charge under investigation" and simply recognizes, without comment, that it was the Senate version which was finally passed by Congress.

The majority further shows that Section 710, as originally passed by the House, would have incorporated the provisions of Sections 9 and 10 of the Federal Trade Commission Act, 15 U.S.C. §§ 49 and 50, but that the Senate spelled out in subsections 710(b) through 710(d) the means of enforcement of demands for evidence by the Commission, with the result that these powers were narrowed.1 With respect to the substantive scope of the Commission's investigatory powers, the majority once again merely notes in passing that the "Senate substituted language as subsection 710(a) parallel to subsection 709(a)." The language which the Senate substituted in subsection 710(a) limits the Commission's power to require the production of documentary evidence to that which is "relevant or material to the charge under investigation," and it was this language which was incorporated into the Act.

Legislative history regarding the House version of these subsections does not persuade me that 709(a) and 710(a) give the EEOC any more power to conduct investigations than the language of these subsections plainly states; the intentions of the House are of minimal significance since it was the Senate version of both subsections which finally became law. Subsection 709(a) was revised by the Senate to require that evidence demanded be relevant to the charge under investigation, and subsection 710(a) was revised to require that evidence demanded be relevant or material to the charge under investigation. The language is plain and is clearly restrictive of the scope of the Commission's investigatory powers. It has been noted that "the statute leaves much to be desired in clarity and precision."2 but the Senate amendments to 709(a) and 710(a), if they have meaning at all, reflect the concern of Congress that demands for evidence by overzealous investigators would at times be unreasonable, and the amendments were obviously designed as a check upon such investigations. Cf. Georgia Power Co. v. Equal Employment Opportunity Commission, 412 F.2d 462, 467-468 (5 Cir. 1969). To me, §§ 709(a) and 710(a) mean what they say, i.e., that the Commission may demand and obtain only evidence which is relevant to the charge, and thus represent a significant restriction on the powers of the EEOC, as opposed to the powers of the NLRB. The majority's attempt to show that the language does not mean what it says, but "was simply designed to emphasize the inability of the EEOC to undertake an investigation in the absence of a previously filed charge" is unpersuasive since the filing of a charge as a prerequisite to an investigation is not only established in subsection 706(a) [42 U.S. C. § 2000e-5(a)], but is emphasized in the opening clauses of both 709(a) and 710(a).

II. THE PROPRIETY OF A HEARING

Taking into consideration the existence of this restriction on the scope of the investigatory powers of the EEOC as opposed to the powers of the NLRB, it becomes necessary to look to the posture of the case before the district court. The Commission had served Graniteville with a demand for (1) the key to a number code indicating the department and job classification assignments of all employees of the Sibley Mill as used in a computer list which already had been supplied; (2) a list showing the date of hire of all employees on the computer list hired subsequent to July 1, 1965; and (3) a list showing the job in which each employee on the list had been initially hired. Graniteville had given the Commission similar information with regard to the department in which Price had worked, but the Commission wanted this evidence with respect to all the departments at the Sibley Mill. Graniteville balked at this request, filed a Petition to Set Aside the Demand, and the EEOC cross-petitioned for enforcement. Thus, it was incumbent upon the district court to determine whether the information sought was within the scope of the Commission's investigatory power. To do so, it was necessary to refer to the charge because the statute expressly requires information sought to be relevant to the charge. The district court properly stated in its order:

The charge in this case was, however, couched in broad and general terms. The evidence demanded could well have appeared to the court below as possibly relevant to three of the four substantive allegations made: (1) that Negroes were discriminated against in promotion policies; (2) that Negroes were harassed, placed in fear of job loss, and subjected to conditions different from those of white employees; and (3) that Negroes were hired for traditionally Negro jobs. However, no specific facts upon which these charges were based were alleged, and Graniteville challenged the relevance of the demands for information with respect to these allegations. A hearing was ordered to determine these facts.3 The majority holds that this hearing was improper and disregards the information there elicited. I conclude, however, that a hearing at this point would be perfectly proper as it would assure fairness to both parties4 and permit a knowledgeable determination of the relevancy of the information demanded.

My brothers assert that the hearing below involved a "general inquiry into the sufficiency of the evidence" supporting the charge and that it required the EEOC to make a premature showing of reasonable cause to believe that the charge was true. I disagree. The majority's conclusion results from a failure to distinguish between an allegation of fact and a conclusion, and to analyze properly the contents of a charge.

Allegations of fact may be of two types — specific or general. The statement, "I was refused a promotion" is an allegation of fact in specific terms. The claim that "Negroes are refused promotions" is also an allegation of fact, but in the broadest form; it implies more than one specific occurrence, all of which may vary widely in nature and context.5 The statement "Negroes are discriminated against because of race" is, on the other hand, a conclusion. Its truth depends upon judgment and reasoning and the application of law to given facts or allegations thereof.

A charge filed with the EEOC is, of necessity, a combination of allegations of fact, general and/or specific, and a conclusion drawn therefrom. The complaining party may allege certain facts which were manifestations of an unlawful (discriminatory) policy. Where, as here, the facts alleged are of a general and unspecified nature and are properly challenged as having no specific components to which the evidence demanded is relevant, a hearing to determine more precisely the basis of the charge would not infringe upon the authority of the Commission to determine whether the allegations of fact were supported and whether there was reasonable cause to believe that the specific occurrences were the result of an unlawful and discriminatory employment policy.

The majority prudently states, "[S]ophisticated general policies and practices of discrimination are not susceptible to * * * precise delineation by a layman who is in no position to carry out a full-fledged investigation himself. * * * Charging parties * * * should not be called upon to specify the dates when raises should have been granted or when promotions were offered to whites but not to equally qualified blacks." However, fairness indicates, and the statutory language demands, that when challenged to do so the complaining party must show a reasonably specific basis in fact sufficient to establish the relevance of the information demanded. I am not persuaded that a hearing held for this purpose was error.

III. THE HEARING BELOW

Price's testimony at the hearing in the district court does not support granting the Commission's demand for evidence in this case. Price had charged that Negroes were hired for traditionally Negro jobs. It would seem that this can be a charge of discriminatory hiring practices only in the implication that Negroes were not hired for traditionally "white" jobs, but Price had apparently been hired for the only job for which he had applied and he did not allege any instances in which other Negroes were denied employment at Graniteville. Price also had charged that Negroes were harassed, placed in fear of job loss, and subjected to conditions different from those of white employees. However, the specifics to which he testified revealed the only harassment of which he was complaining was that company officials did not come to him to offer him a better job, his fear of losing his job arose because his supervisor would talk to him whenever he overslept and was late for work, and the only relevant "different condition" to which he could point was that Negroes were not promoted to supervisory positions at the plant. When questioned closely about his charge concerning Graniteville's promotional policies, Price's dissatisfaction appeared to more accurately involve alleged discriminatory practices in the vocational training programs offered by Graniteville6 (therefore possibly supporting a demand for evidence concerning these programs had such evidence been demanded) rather than any denials of promotions to Negroes because of their race. On the basis of this testimony alone, I would be disposed to affirm the district court's granting of Graniteville's petition to set aside the Commission's demand. Other testimony given by Price, however, considered together with his affidavit submitted prior thereto,7 indicates that there may have been additional specific facts by which he had been aggrieved which were not fully explored at the hearing. Counsel for the Commission, although given an opportunity to cross-examine Price, did not question him in depth because the district court had erroneously stated the purpose of the hearing to be to determine whether Price personally was "claiming to be aggrieved" within the meaning of the Act (see footnote 3). Yielding to substantial authority, I would agree with the majority that "a charging party may even be aggrieved by employment practices to which he is not immediately subject." It is clear that due to the confusion in the lower court regarding the purpose of the hearing, Price was not given adequate opportunity to testify to possibly discriminatory employment practices to which he was not immediately subject.

For the reasons stated above, I would remand to the district court with instructions to further investigate the precise nature of the factual basis of Price's charge.

I, therefore, respectfully submit a statement of my views and the points of my disagreement with the majority.