EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. BROOKHAVEN BANK & TRUST COMPANY, Defendant-Appellee
614 F.2d 1022
5th Cir.
1980
Check Treatment

*1 state a liberty create interest

for the sort transfer and reclassification

which occurred in this case. We therefore proceedings and remand for

REVERSE not opinion.

inconsistent

EQUAL OPPORTUNI EMPLOYMENT COMMISSION, Plaintiff-Appel

TY

lant, & TRUST BANK

BROOKHAVEN

COMPANY, Defendant-Appellee.

No. 79-1117. Appeals, Court States

United Circuit.

Fifth

April 1980. Rehearing Banc

Rehearing En May

Denied Blackwood, E.E.O.C.,

Vincent tty:, J. A C., Washington, D. for plaintiff-appellant. Fuselier, Ott, Flowers, McKee & M. Cur- McKee, Roberts, III, tiss Richard C. Jack- son, Miss., for defendant-appellee. MORGAN, REAVLEY, Before HATCHETT, Judges. *2 goals To effectuate the embodied in Title

HATCHETT, Judge: VII, Congress Equal Employ- created the Employment Opportunity Equal The Opportunity ment Commission. U.S.C. Commission, from the appellant, appeals may be procedures 2000e-4. The EEOC’s § dismissing class action trial court’s order its charge by filing in motion set brought under section 706 of Title VII.1 whiсh procedures are discrimination. primari- dismissed the action The trial court charge by filing of such a are triggered 706(b) ly ground on the that section and the 2000e-5, ‍​​‌‌​‌‌​‌​‌​​‌​​​‌​‌​​‌​‌​‌‌​​​​‌​‌‌​​​​​‌​‌‌​‌​‍pro- which detailed in 42 § U.S.C. preclude by a class action pertinent part vides in as follows: finding is a thаt EEOC where there is untrue.2 re- filed We verse. (b) by or on charge Whenever a person claiming aggriev- to be behalf of a Powell, Appellant, a black wom- Cynthia Commission, ed, or a member of the an, filed a with the EEOC Febru- employer . . . has alleging that an 1975, ary, alleging appellee, that Brookha- employment engaged in an unlawful (Brookhaven Bank) ven Bank & Trust Co. shall serve a practice, the Commission refused to hire her because of her race. ... on such notice investigation conducted an аnd make an employer . . . and shall in a letter of appellant notified the determi- If the thereof. ... no nation that there was reasonable cause inves- after such to believe that her of discrimination Commission determines letter, however, cаuse to tigation was true. The that there is reasonable stated true, investigation justified finding . believe that to elimi- reasonable cause existed to believe the shall endeavor Commission segregated Bank alleged employment Brookhaven maintained unlawful nate such job classifications in violation of Title VII. methods of confer- informal failed, ence, conciliation, When conciliation efforts persuasion. and seeking injunctive relief, filed this suit back

pay, and the institution of an affirmative (f)(1) thirty days If within аfter would program eradicate filed with the Commission practices. unemployment to secure the Commission has been unable may We must whether the decide agree- from the respondent a conciliation file after it con- Commission, the ment to the acceptable cludes that no reasonable cause exists to may bring a civil action Commission true, believe the filed is where un- If a filed with employment practices during lawful surface (b) of to subsection Commission charge. this section is dismissed thе Commis- Rights sion, eighty The Civil Act of 1964. or if within one hundred charge . days from the of such Rights Title VII of the Act of Civil a civil ac- has not filed Commission seq. generally 2000e et U.S.C. forbids § . tion . . . Commission discrimination, employ- in the context of shall notify so ment, against any individual “because of giving ninety days within after race, color, sex, religion, such individual’s brought such notice a civil action origin.” proscriptions national Title VIPs employers, at employment directed agencies, organizations, each and labor Standing. engage which is forbidden to in certain case court dismissed this employment practices.”

defined “unlawful district 2000e-2, failed partly ground 2000e-3. on the that the EEOC covery (1976). could not meet 1. 42 sanction and the EEOC U.S.C. 2000e-5 requirements of Fed.R.Civ.P. 23. judge The trial dismissed the action on also grounds justified that dismissal was аs a dis- requirements Charge. to meet of Rule Fed.R. Civ.P., on class actions. The district court provides “charges Title VII shall be stated: writing under oath or affirmation and satisfy only Since EEOC is able to shall contain such information and be in ‘injury’ ‘membership’ require- requires.” such form as the Commission *3 injury ments of Rule through and provide that sworn EEOC charging membership in the class of the (1) and charges should contain: the name since, case, party and in this the EEOC (2) charging party; the name address of the has determined that the charging party against and address of the whom injury suffered no and is not a member of made; charges (3) a statement of the class it seeking represent, is to it facts; (4) approximate number of em follows question without respondent; (5) ployees of the and whether ‘injury’ has no derivative ‘membership’ proceedings begun or not have before a in the class. agency. state ‍​​‌‌​‌‌​‌​‌​​‌​​​‌​‌​​‌​‌​‌‌​​​​‌​‌‌​​​​​‌​‌‌​‌​‍or local 29 C.F.R. 1601. § The district court’s view supported by is not 11(a). the case law. Brands, Inc., In Sanchez v. Standard Employment discrimination has been in (5th 1970), F.2d 455 Cir. the court held that be, terрreted nature, to its class discrimi scope investigation EEOC in a of the nation, permitting investigation aimed at possible subsequent civil action need not be determining employer’s an handling of the specific allegations limited Georgia EEOC, class. Power Co. v. words, charge. In other (5th 1969). F.2d 462 Cir. In EEOC v. D. H. is trigger investigation sufficient to an Co., Ltd., Holmes (5th 556 F.2d 787 Cir. practices all reasonably which “can be ex- 1977), the court held that when the EEOC pected grow to out of the of discrim- brings a class to 42 U.S.C. ination.” The court stated: 2000e-5(f)(1), it require must follow the lоgic rule inherent in this is ments of Rule 23 of the Rules of Civil statutory scheme of Title VIL A Procedure. The court in Holmes stated: prelimi- of discrimination is not filed as a “[2000e-5(f)(1)] gives standing EEOC to sue nary contrary, to a lawsuit. On the under Title VII to the same extent as indi purpose of discrimination is viduals by discrimination in em trigger investigatory to conciliatory ployment.” Id. at 794. significantly, More procedures of the EEOC. Once a however, the court held that the EEOC was filed, has been the Commission carries out itself a member of the class. The court its investigatory attempts function and to stated: “The crux of the matter is this: voluntary compliance obtain with the Having been set up by bring law to civil Only law. if the EEOC fails to achieve actions persons on behalf of allegedly discri voluntary compliance will the mattеr minated against, sue, standing EEOC has subject ever become the of court action. interest, is a party and, hold, real we for Thus it is obvious the civil action is purposes of Rule is a member of the intimately much more related to the class.” Id. at 797. The court went on to than to the words of hold that adequate the EEOC is an class originally triggered the charge which representative required as 23(a), Rule investigation. Within situation, noted that “In the normal we scheme, only logical is to limit might expect representative bе a permissible scope of the civil action to the

par excellence.” Id. Holmes makes clear scope of the EEOC authority represent of EEOC to a reasonably expected grow can out Title VII class stems not from derivative (Empha- of discrimination. membership, class congressional but from added). sis Therefore, act. it should not be fatal to the Id. at 466. EEOC’s original action that complain ing party qualify has failed to for class In a similar context membership. Co., (5th Sash & Door 511 F.2d 453 Cir. although found no Thеre, the settle- Commission the court held that 1975). on the un- party’s original reasonable cause private ment of the suit. dergirding EEOC’s not foreclose the did on, predicated but not right bring suit for examined the other reasons We have to, The court charge. the sаme limited order stated in the trial court’s dismissal pertinent part: stated in them to be without merit. and find with the EEOC judgment of district court step first simply pinpointing REVERSED. correcting employment discrimina- then particular upon investigating a tion. If REAVLEY, Judge, dissenting: (which itself charge of discrimination majority holding contrary as regard I minor) relatively the EEOC dis- might be 706 of statutory language to the of section *4 discriminatory practices, other covers section, (b) 42 VII. of that Title Subsection prevented the EEOC should not be surely 2000e-5(b) (1976), provides that the appropriate on those taking from empowered to in- proceed is not to EEOC practices because simply discovered newly alleged of the methods resolution of formal with charging party settles his suit the it de- employment practice unless unlawful employer. the to there is cause termines that reasonable Id. at 455. charge by the com- that the filed believe (f), 42 is true. plaining party Subsection CONCLUSION 2000e-5(f) (1976), the authorizes U.S.C. Title the scheme of Under meth- only file suit if the informal EEOC to VII, charge file a aggrieved may an It follows prove resolution fruitless. ods of employment dis alleging with the EEOC the finding on that a reasonable cause investi may crimination. The EEOC then is an by complaining party the charge filed gate any charge particular charge the the by indispensаble condition to reasonably grow expected be to which can EEOC. out of the of discrimination. not to majority cited The cases the determining whether the EEOC has In EEOC, Georgia Co. v. contrary. the Power new the com properly charges added in (5th 1969), only involved 462 Cir. 412 F.2d plaint court, with the two countervail filed EEOC, discovery by the proper scope of the The first is ing policies must considered. prior charge but during expedite judicial process. ‍​​‌‌​‌‌​‌​‌​​‌​​​‌​‌​​‌​‌​‌‌​​​​‌​‌‌​​​​​‌​‌‌​‌​‍to policy regarding reasonable any to determinatiоn precise To limit the EEOC to the Co., F.2d v. D. H. Holmes 556 cause. EEOC except to add purpose filed would serve no denied, 1977), 436 U.S. (5th cert. 787 Cir. greater expense the enforce delay and to (1978), 1129 L.Ed.2d 98 S.Ct. policy The proceedings. ment second is lower was conсerned whether employers opportunity should that have the suit as properly characterized court had to with the all settle EEOC and action and whether the Commission class parties court initiated. If before action is comply required to with Fed.R.Civ.P. is employer has notice of opinion brings a class when it action. remedy an opportunity has been offered to been filed charges that five had mentions litigation, without it should not problem on wheth employer but is mute avoid the law be allowed to enforcement of cause reasonable er the Commission found original with the because the filed were does not any true. Holmes to believe aggrieved party slightly be the is EEOC proposition that stand for the complaint from the filed in court different it decides may institute suit whenever staff by the EEOC. been uncovered an unlawful has is improper despite We hold that dismissal was the fact no valid Brands, because the EEOC could the member it. v. meet before Sanchez Standard (5th 1970), Inc., and EEOC ship requirement of Rule 23 in this section 431 F.2d Cir. Co., Huttig charge, likely it is complaints Sash & Door 511 F.2d 453 less that other (5th 1970), pertinent. are even less Cir. are trifles or harassment. complaining involved suit Sanchez dangerous Today’s places lever- decision nothing had do with

party. decision to in age complainers the hands of chronic Congress yet an EEOC because had not willing point accusing finger to section of amended Title VII allow charge employment discrimination. the EEOC to sue under that section. More employer may know a threatened over, the EEOC did find сause to reasonable may he unfounded and know that complaining party’s believe one of the rapidly EEOC will discover that is merit- charges was Similarly, true. less. But who learn those decision Door, Sash the EEOC found & reasonable judicial imprimatur will also know that charges cause to believe one placed upon plenary investigations all complaining party was true. employment practices of an employer was Consequently there no bar despite patently the fact that the рroceeding informal methods of frivolous. not wish to solution. expense bear the inconvenience and Congress power- did not leave capitulate rather than practices less when it other uncovers which petty disgruntled extortion of the it сonsiders the course of an complainer. investigation of a section 706 *5 separate determined to be meritless. ‍​​‌‌​‌‌​‌​‌​​‌​​​‌​‌​​‌​‌​‌‌​​​​‌​‌‌​​​​​‌​‌‌​‌​‍A charge may a member

Commission under section 706 and concilia-

tion efforts proceed on the Commis- charge. Alternatively,

sioner’s

may decide to file a pattern practice or suit 707, section 2000e-6 SELF, Jr., Plaintiff-Appellee, James E. (1976). v

Conscientious adherence to the SELF, Christine June prerequisites is than more an exaltation of . Defendant-Appellant. form over substance. language statute insures that trifles do not beсome No. 79-1569 subjects of employers EEOC suits and that Summary Calendar.* are not harassed an overzealous EEOC Appeals, United Court of States staff. The must be engaged in a . Fifth Circuit practice sufficiently important employee complain cause an to the EEOC April 1980. investigation. and to deserve employ- If no complains, ee it must warrant April Denied Rehearing complaint by a a member of the Commis- sufficiently sion or be widespread justify pattern the EEOC. I

recognize that once the EEOC finds reason- true,

able cause to a charge believe

may eventually file on any

practice it discovers in the course ‍​​‌‌​‌‌​‌​‌​​‌​​​‌​‌​​‌​‌​‌‌​​​​‌​‌‌​​​​​‌​‌‌​‌​‍of rea- investigation. Door,

sonable &Sash at F.2d 453. This yield does not

incongruity because there once is a reasona-

ble finding respect cause to one

* Fed.R.App.P. 34(a); 5th Cir. R. 18.