Equal Employment Opportunity Commission v. Pacific Press Publishing Ass'n

SNEED, Circuit Judge

(dissenting):

I believe the issue before us is more complicated than the majority make it appear. This is said even though I find the result they reach appealing. Moreover, I agree that section 706(f)(2) is not available to the Commission if the administrative phase has terminated. My difficulty is that, on the basis of the record before us and the applicable law and regulations, I am unable to determine whether, as the majority puts it, the “administrative phase” was concluded at the time the EEOC instituted this suit. The “administrative phase” may have been merely “suspended,” not concluded. I do not think mere suspension forecloses access by the EEOC to the powers given it by section 706(f)(2) of Title VII, 42 U.S.C. § 2000e-5(f)(2). Because of my uncertainty about whether the administrative process is terminated or merely suspended, I would reverse and remand for further proceedings consistent with the principles hereinafter stated.

I.

The Effect of the 1972 Amendments.

To understand my position it is necessary to recall that the 1972 amendments to Title VII clothed the Commission with the power to bring a civil action against one charged under Title VII with an unlawful employment practice. This significantly altered the relationship between the employee asserting an unlawful employment practice, the Commission, and the charged employer. The Commission no longer was limited to investigation and conciliation efforts with recourse to the courts being the responsibility of aggrieved employees. The Commission under the 1972 amendments was empowered to bring a civil action against a private employer if it had been unable to reach an acceptable conciliation agreement with such employer. However, arming the Commission with this power was not done at the expense of aggrieved employees. They continued to be entitled to pursue their Title VII relief. The problem under the 1972 amendments is to discern how Congress intended to accommodate the power of the Commission to file suit to other features of Title VII.

II.

What Constitutes “Termination” and “Suspension” of the Administrative Phase?

So far as it concerns the issue of when the administrative phase is concluded, it is clear that the “administrative phase” is brought to an end by dismissal of a charge,¹ by obtaining an acceptable conciliation agreement or other form of voluntary compliance by the employer, or by the Commission determining that voluntary compliance is not possible and initiating a civil suit against the employer. It is also clear that a determination by the Commission not to bring a civil suit, although reasonable cause to believe the charge is true exists, together with the issuance of a Right-To-Sue letter, will end the administrative phase. See Tuft v. McDonnell-Douglas Corporation, supra at 1309.

On the other hand, it is reasonably clear that the mere issuance of a Notice of Right-To-Sue letter does not conclude the “administrative phase.” The relevant portions of the statute authorizing such notices provides:

“if within one hundred and eighty days from the filing of such charge, the Commission has not filed a civil action under this section or the Commission has not entered into a conciliation agreement to which the person aggrieved is a party, the Commission shall so notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge (A) by the person claiming to be aggrieved.” 42 U.S.C. § 2000e-5(f)(l).

This language plainly suggests that the mere issuance of a Right-To-Sue letter does not terminate the power of the Commission to continue its conciliation efforts. The House Report states explicitly that the 180-day time period was intended as an escape mechanism for the aggrieved employee in those situations where the administrative machinery bogs down. H. Rep. No. 238, 92d Cong., 2d Sess. 12-13 (1972).²

More difficult, of course, is the question of whether the filing of the suit by the aggrieved person following the issuance of a Right-To-Sue letter terminates the administrative phase. The majority believe it does and the House version of the 1972 amendments so provided.³ No such provision appears in the law at present. Nor do the current regulations provide for termination of Commission jurisdiction. Their approach is to permit the aggrieved person to demand a Right-To-Sue letter at the expiration of one hundred and eighty days from the date of filing the charge. 29 C.F.R. § 1601.25b(c). The Commission must comply with the demand, but it is not required to issue such a letter in the absence of a demand. Regulation 1601.25b(d) then provides:

“Issuance of notice pursuant to paragraph (e) of this section shall suspend further Commission proceedings unless the Field Director determines that it is in the public interest to continue such proceedings, or unless, within twenty (20) days after receipt of such notice, a party requests the Field. Director, in writing, to continue to process the case.”

Nothing appears in the regulations to transmute “suspension” of Commission proceedings to “termination” upon the filing of a suit by the recipient of the Right-To-Sue letter. Suspension continues indefinitely unless and until, it is lifted, or proceedings are terminated in another fashion.

III.

Does “Suspension” of Administrative Phase Foreclose Access to Section 706(f)(2)?

These regulations are not an unreasonable interpretation of a statute made somewhat ambiguous by the process of legislative compromise. Treating them as valid interpretive regulations requires that the issue whether suspension of Commission proceedings forecloses Commission access to section 706(f)(2) be confronted. I do not believe such access is foreclosed. Circumstances may arise in which it will be necessary to invoke the aid of the court to maintain the existence of the opportunity to lift the suspension of Commission proceedings. Retaliatory discharges could destroy this opportunity and access to section 706(f)(2) should be available to prevent it. However, access to section 706(f)(2) must be for the purpose of preserving the opportunity of reviving Commission proceedings.⁴ That is, it must serve the “purposes of this Act” by protecting the Commission’s administrative process as it relates to the aggrieved party to whom the Right-To-Sue letter was given.⁵

IV.

Showing Necessary To Obtain Section 706(f)(2) Relief Where Administrative Phase Suspended.

It follows that the Commission, to obtain injunctive relief under section 706(f)(2) subsequent to the issuance of a Right-To-Sue letter, must make a showing sufficient to convince the trial court that it should exercise its equitable powers to preserve the suspended state of the Commission’s administrative process. Such a showing, inter alia, requires that the Commission indicate that it has not determined whether to bring civil suit against any respondent named in the charge. A determination not to sue joined with the issuance of a Right-To-Sue letter to the aggrieved party, as already indicated, terminates the administrative phase, while an unimplemented decision to sue may make section 706(f)(2) relief unnecessary. Suspension of the decision whether to sue in its own right, however, is compatible with such relief. Moreover, the Commission must, when properly challenged, demonstrate that laches does not bar it from exercising its section 706(f)(2) rights.

An administrative process suspended for years, for example, may indicate that the Commission is barred. In brief, the Commission must show that the administrative phase is not terminated and that it is otherwise entitled to section 706(f)(2) relief under the provisions of Rule 65, Fed.R.Civ.P.

Y.

Disposition Under These Principles.

Applying these principles to the Commission’s allegations in this case and the District Director’s affidavit of September 3, 1974, I conclude that there is no adequate showing that the administrative phase has not been terminated with respect to Merikay Silver, an aggrieved party to whom a Right-To-Sue letter has been given. Lorna Tobler apparently has not been given such a letter. This may strengthen the Commission’s contention that the administrative phase with respect to her complaints is not ended. However, both Silver and Tobler have been treated alike in this proceeding to date. As a consequence, the record does not provide a sufficient basis upon which to rest an informed distinction between the two. Hence, I would remand this case to the district court to permit it to determine whether the administrative phase has been concluded with respect to either or both.

Should the district court determine that the administrative phase has not been completed as to either Silver or Tobler, it is entitled to consider a retaliatory discharge of the aggrieved party, or parties, as satisfying the “irreparable injury” requirement of Rule 65. See Murry v. American Standard, Inc., 488 F.2d 529 (5th Cir. 1973); Hyland v. Kenner Products, 9 E.P.D. ¶ 10,-108 (S.D.Ohio 1974). However, to permit the Commission to invoke this reduction of the “irreparable injury” standard following the termination of the administrative phase not only exceeds the reach of section 706(f)(2) but also improperly would permit the aggrieved party to avoid the conventional “irreparable injury” burden which he must shoulder to obtain a preliminary injunction under such circumstances. Hyland v. Kenner Products, supra; cf. Sampson v. Murray, 415 U.S. 61, 83-84, 94 S.Ct. 937, 949-950, 39 L.Ed.2d 166, 183 (1973).

I would reverse and remand for further proceedings.

1 . See DeMatteis v. Eastman Kodak Co., 511 F.2d 306 (2d Cir. 1975); Tuft v. McDonnell-Douglas Corporation, 517 F.2d 1301 (9th Cir. 1975); 29 C.F.R. § 1601.19b, as amended, July 16, 1974.

2 . The House version differed from the bill which was enacted. See note 3 infra. The difference, however, was that the House version explicitly ended Commission jurisdiction at the time of filing of a civil suit. The fact that this provision was dropped in the final version lends additional support to the proposition that the 180-day time period is not a limit on Commission jurisdiction.

3 . The pertinent section of the House version reads:

“CIVIL ACTIONS BY PERSONS AGGRIEVED

“Sec. 715. (a) If (1) the Commission determines that there is no reasonable cause to believe the charge is true and dismisses the charge in accordance with section 706(b), (2) finds no probable jurisdiction and dismisses the charge, or (3) within one hundred and eighty days after a charge is filed with the Commission, or within one hundred and eighty days after expiration of any period of reference under section 706(c) or (d), the Commission has not either (i) issued a complaint in accordance with section 706(f), (ii) determined that there is not reasonable cause to believe the charge is true and dismissed the charge in accordance with section 706(b) or found no probable jurisdiction and dismissed the charge, or (iii) entered into a conciliation agreement acceptable to the Commission and to the person aggrieved in accordance with section 706(f) or an agreement with the parties in accordance with section 706(i), the Commission shall so notify the person aggrieved and within sixty days after the giving of such notice a civil action may be brought against the respondent named in the charge (1) by the person claiming to be aggrieved, or (2) if such charge was filed by a member of the Commission, by any person whom the charge alleges was aggrieved by the alleged unlawful employment practice. Upon application by the complainant and in such circumstances as the court may deem just, the court may appoint an attorney for such complainant and may authorize the

commencement of the action without the payment of fees, costs, or security. Upon timely application, the court may, in its discretion, permit the Commission to intervene in such civil action if it certifies that the case is of general public importance. Upon the commencement of such civil action, the Commission shall be divested of jurisdiction over the proceeding and shall take no further action with respect thereto: Provided, That, upon request, the court may, in its discretion, stay further proceedings for not more than sixty days pending termination of State or local proceedings described in subsection (c) or (d) or the efforts of the Commission to obtain voluntary compliance.” H.R. 1746, 92d Cong., 2d Sess. (1972) (emphasis added).

4 . Support for this view can be gleaned from a comparison of the House and Senate versions and a reading of the Conference Report. The House bill read:

“(O) Whenever a charge is filed with the Commission pursuant to subsection (b) and the Commission concludes on the basis of a preliminary investigation that prompt judicial action is necessary to preserve the power of the Commission to grant effective relief in the proceeding the Commission may bring an action for appropriate temporary or preliminary relief pending its final disposition of such charge, in the United States district court for any judicial district in the State in which the unlawful employment practice concerned is alleged to have been committed or the judicial district in which the aggrieved person would have been employed but for the alleged unlawful employment practice, but, if the respondent is not found within any such judicial district, such an action may be brought in the judicial district in which the respondent has his principal office. For purposes of sections 1404 and 1406 of title 28, United States Code, the judicial district in which the respondent has his principal office shall in all cases be considered a judicial district in which such an action might have been brought. Upon the bringing of any such action, the district court shall have jurisdiction to grant such injunctive relief or temporary restraining order as it deems just and proper, notwithstanding any other provision of law. Rule 65 of the Federal Rules of Civil Procedure, except paragraph (a)(2) thereof, shall govern proceedings under this subsection.”

H.R. 1746, 92d Cong., 2d Sess. (1972) (emphasis added).

The Senate bill read:

“(5) Whenever a charge is filed with the Commission and the Commission concludes on the basis of a preliminary investigation that prompt judicial action is necessary to carry out the purposes of this Act, the Commission or the Attorney General in a case involving a government, governmental agency, or political subdivision, may bring an action for appropriate temporary or preliminary relief pending final disposition of such charge. It shall be the duty of a court having jurisdiction over proceedings under this section to assign cases for hearing at the earliest practicable date and to cause such cases to be in every way expedited.”

S. 2515, 92d Cong., 2d Sess. 4 (1972) (emphasis added).

The Conference Report states:

“The Senate amendment authorized the Commission or the Attorney General to seek preliminary injunctive relief. The House bill authorized the Commission to seek preliminary relief and required a showing that substantial and irreparable injury to the aggrieved party would be unavoidable. The Senate receded with an amendment that authorizes the Commission or the Attorney General to seek preliminary injunctive relief and a provision that Rule 65 of the Federal Rules of Civil Procedure should govern all actions brought under this subsection.”

S. Rep. No. 681, 92d Cong., 2d Sess. 18 (1972).

The Conference Report indicates that the Conference managers perceived the difference between the versions to be the requirement of a showing of irreparable injury on the part of the aggrieved employee. Thus, it appears that the managers felt that the Senate language, “necessary to carry out the purposes of this Act,” was equivalent to the original House language, “necessary to preserve the power of the Commission to grant effective relief in the proceeding.” This is the sense in which we view the language.

5 . If the Commission wishes to seek preliminary relief for other purposes, the Act provides a mechanism for doing so. The Act allows the district court, in its discretion, to allow the Commission to intervene in a private civil action “upon certification that the case is of general public importance.” 42 U.S.C. 2000e-5(f)(1). Once the Commission has intervened it could seek any relief it thought appropriate and the lower barrier for irreparable harm would would presumably apply. The action here is, in effect, an attempt to do an end run around the certification of public importance and the discretion of the trial judge.