Appendix — Occidental Life Insurance v. Equal Employment Opportunity Commission

- | Supreme Court, U. S,

FILED

JAN 27 1977 |

APPENDIX.

a iR., CLERK

IN THE

} Supreme Court of the United States

October Term, 1976

No. 76-99

OCCIDENTAL LIFE INSURANCE COMPANY OF CALI-

FORNIA,

Petitioner,

vs.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Respondent.

On Writ of Certiorari to the United States Coart of

Appeals for the Ninth Circuit.

PETITION FOR CERTIORARI FILED JULY 23, 1976.

CERTIORARI GRANTED DECEMBER 13, 1976.

APPENDIX

Page

Chronological List of Relevant Docket Entries in

I IE > Siscintedictdinecbihtdlnndhinincticnennionens App. p.

Exhibit A. Charge of Discrimination.

Affidavit of Dennis H. Vaughn in Support of De-

fendant’s Motion for Summary Judgment ............

Affidavit of Jules H. Gordon in Support of Plain-

tiff Opposition to Defendants Motion for Sum-

mary Judgment or, in the Alternative Partial Sum-

I BD ctttticncthcpctesiontnmpnsticerssntccnctuniinianintae

RIED ° Spiiditininndicerdstandsicsnnciinnriininentninciasmmbinieascnnis

First Amended Answer to Complaint -.....................

Findings of Fact and Conclusions of Law (Rule

3(g) Local Rules of the Central District of

aa sic eanigatenlaneiionns

Section 706(f)(1) of Title VII of the Civil Rights

Act of 1964, as Amended, 42 U.S.C. Section

Ee en

14

19

Chronological List of Relevant Docket Entries

in Ninth Circuit.

January 31, 1975—-EEOC Files Notice of Appeal of

District Court Ruling

May 19, 1975—-EEOC Brief Filed

June 30, 1975—Occidental Brief Filed

July 16, 1975—-EEOC Reply Brief Filed

January 6, 1976—Oral Argument Held

May 11, 1976—Ninth Circuit’s Opinion and Judgment

Entered

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, Exhibit "A"

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105 ER

| BEST COPY AVAILABLE

a

Affidavit of Dennis H. Vaughn in Support of

Defendant’s Motion for Summary Judgment.

United States District Court, Central District of Cali-

fornia.

Equal Employment Opportunity Commission, Plain-

tiff, vs. Occidental Life Insurance Company of Cali-

fornia, Defendant. Case No. CV 74-1698-AAH.

Filed: Nov. 8, 1974.

State of California, County of Los Angeles—ss.

Dennis H. Vaughn, being duly sworn, deposes and

says:

I am a member of the law firm of Paul, Hastings,

Janofsky & Walker, am duly admitted to practice before

this Court, and am counsel of record for the Defendant

in this case.

Attached hereto, marked as Exhibit “A”, and in-

corporated herein by reference, is a true and correct

copy of the Charge of Discrimination, dated December

27, 1970, filed with Plaintiff by the Charging Party

herein, Tamar Edelson, against Defendant. In a tele-

phone conversation on October 1, 1974, Jean Hagins,

an attorney with the Equal Employment Opportunity

Commission Litigation Center in San Francisco, Cali-

fornia, advised affiant that said charge was received

by Plaintiff on or about December 30, 1970 and was

formally filed with Plaintiff on or about March 9,

1971,

The Findings of Fact on said charge, issued by

the District Director of the Equal Employment Oppor-

tunity Commission on or about February 25, 1972,

found that the Charging Party, Tamar Edelson, had

a ee

voluntarily terminated her employment with Defendant

on or about September 9, 1971.

In a telephone conversation on September 3, 1974

with Elizabeth Leavey, an attorney with the Equal

Employment Opportunity Commission Litigation Center

in San Francisco, California, Ms. Leavey advised affiant

that no notice of the type specified in Section 706(f) (1)

of Title VII of the Civil Rights Act of 1964 was

given by Plaintiff to the Charging Party herein, Tamar

Edelson.

Dated: November 6, 1974.

_ /s/ Dennis H. Vaughn

Dennis H. Vaughn

Sworn to and subscribed before me this 6th day

of November, 1974.

/s/ Irene Hansen

Notary Public in and for

said State and County

[Seal]

a

Affidavit of Jules H. Gordon in Support of Plaintiff

Opposition to Defendants Motion for Summary

Judgment or, in the Alternative Partial Summary

Tudgment.

In the United States District Court for the Central

District of California.

Equal Employment Opportunity Commission, Plain-

tiff, v. Occidental Life Insurance Company of Cali-

fornia, Defendant. Civil Action No. 74-1698 AAH.

Filed: Nov. 26, 1974.

Jules H. Gordon, being first duly sworn deposes and

says:

1. I am an employee of the United States Govern-

ment, Equal Employment Opportunity Commission,

(hereinafter the Commission), serving as Associate

Regional Attorney at the Commission’s San Francisco

Regional Litigation Center.

2. I have been employed by the Commission for

more than 8 years and have previously served as Di-

rector of the Commission’s San Francisco District Office

out of which office this case arose.

3. By virtue of the employment stated above I

am familiar with the administrative file relating to

the charge of discrimination in violation of Title VII

filed with the Commission against the Occidental In-

surance Company of California by Tamar Edelson on

March 9, 1971 (Charge Number TSF1-0634).

4. Ihave examined the files relating to Charge Num-

ber TSF1-0634 for the purpose of this affidavit; The

file contains the following information.

A. Charge Number TSF1-0634 was filed with the

San Francisco District Office of the Commis-

_

sion on March 9, 1971. At that time there

were approximately 1000 charges pending in-

vestigation in that office which had about 8

investigators on its staff. Investigation was com-

menced by service of the charge on August

16, 1971.

On February 25, 1972 after the charge was

investigated by the Commission a copy of the

Commission’s proposed Finding of Facts was

sent to Occidental Insurance Company.

On March 23, 1972 Occidental responded to

the Commission’s proposed Finding of Facts

Stating its exceptions thereto.

On July 13, 1972 the Commission wrote Oc-

cidental inviting it to participate in pre-determi-

nation conciliation discussions. Occidental en-

tered into such discussions and the issuance of a

Commission Determination was stayed pending

the outcome of the pre-determination concilia-

tion efforts.

On October 20, 1972 these initial conciliation

efforts were deemed unsuccessful.

On February 2, 1973 a letter of determination

(See Exhibit 1 attached) was issued by the

Commission which found reasonable cause as

to the charge and as to other violations of

Title VII so related to the charge as to be

appropriate for determination under the regula-

tions of the Commission.

Occidental was at that time invited to [sic] upon

the Determination.

=

On February 26, 1973 Occidental responded

to this invitation, expressing its interest in con-

tinuing discussions and informing the Commis-

sion that the matter had been referred to its

law firm, Paul, Hastings, Janofsky, & Walker.

On March 20, 1973 Dennis Vaughn wrote the

District Office’s conciliator suggesting that fur-

ther conciliation efforts should be with the Com-

mission’s General Counsel. (See letter, attach-

ment 2)

On July 9, 1973, Mr. Vaughn and a number

of officials of Occidental met with a Commis-

sion conciliator at the Commission’s offices in

San Francisco. According to the notes of the

conciliator, at that time Mr. Vaughn requested

that all conciliation efforts be suspended until

a definitive ruling by.the United States Supreme

Court had been handed down which would be

dispositive of the principal issues.

On September 13, 1973 after further corre-

spondence with Occidental, the Commission con-

cluded that conciliation efforts had failed and

so notified Occidental.

On September 13, 1973 the conciliator informed

the Charging Party Tamar Edelson that concilia-

tion had failed and the Charging Party orally

requested that the case be referred to the Com-

mission’s [sic]

5. There is no indication in the administrative file

that Tamar Edelson ever requested or was denied the

issuance of a “right to sue” letter relating to this

charge.

eins

6. There is nothing in the administrative file indicat-

ing that Occidental disputed the Commission’s jurisdic-

tion on the grounds of timeliness or asserted that the

Commission’s time to complete the administrative proc-

ess had expired.

Dated: November 24, 1974

/s/ Jules H. Gordon

JULES H. GORDON

Sworn to and subscribed before me this 24 day

of November 1974.

/s/ Erica Black Grubb

Notary Public

State of California

County of San Francisco

[Seal]

ST —_—=-

_

Complaint.

In the United States District Court for the Northern

District of California.

Equal Employment Opportunity Commission, Plain-

tiff, vs. Occidental Life Insurance Company of Califor-

nia, Defendant. C 74 0427 ACW

JURISDICTION AND VENUE

Filed: February 22, 1974.

1. Jurisdiction of this Court is invoked pursuant

to 28 U.S.C. Sections 451, 1343, and 1345. This

is an action authorized and instituted pursuant to Sec-

tion 706(f) (1) and (3) and (g) of Title VII of

the Civil Rights Act of 1964, 42 U. S. C. Section

2000e et seq., as amended, 42 U. S. C. Section 2000e

et seq. (Supp II, 1972), hereinafter referred to as

“Title VII.”

2. The unlawful employment practices alleged be-

low were and are now being committed within the State

of California and the Northern Judicial District of

California.

PARTIES

3. Plaintiff, Equal Employment Opportunity Com-

mission, (hereinafter referred to as the “Commission” ),

is an agency of the United States of America charged

with the administration, interpretation and enforcement

of Title VII and is expressly authorized to bring this

action under the provisions of Section 706(f) (1),

42 USC 2000e-5 (f) (1).

4. Since at least July 2, 1965, Defendant Occi-

dental Life Insurance Company of California (herein-

after referred to as the “Defendant”), has continuously

—s

been and is now a corporation doing business in San

Francisco and elsewhere in California, where Defendant

is engaged in the business of selling and servicing

insurance policies across state lines, and has continuous-

ly and does now employ more than twenty-five em-

ployees.

5. Since at least July 2, 1965, Defendant has contin-

uously been and is now an employer engaged in an

industry affecting commerce within the meaning of

Section 701(b), (g) and (h) of Title VII, 42 U.S.C.

Section 2000e(b), (g) and (h).

STATEMENT OF CLAIM

6. On or about March 9, 1971 a charge was filed

with the Commission alleging that Defendant had en-

gaged in unlawful practices under Title VII.

7. The Commission, after investigating and finding

reasonable cause to believe that Defendant had engaged

in unlawful employment practices, has been unable,

through informal methods of conference, conciliation

and persuasion, to secure a conciliation agreement ac-

ceptable to it.

8. Since at least July 2, 1965 and continuously

up until the present time Defendant has intentionally

engaged in unlawful employment practices in violation

of Section 703 of Title VII, including but not limited

to the following:

(a) Defendant discriminates against women employ-

ees because of their sex by failing and refusing to

treat pregnancy-related disabilities in the same manner

—_—

as other temporary disabilities, as exemplified by De-

fendant’s policies and practices involving such matters

as the availability, commencement and duration

of leave, the accrual and retention or seniority and

other benefits and privileges of employment, reinstate-

ment and benefits available in connection with employ-

ment under the company’s health insurance and sick

leave benefits plans, as applied to pregnant employees.

(b) Defendant discriminates against women employ-

ees, because of their sex, by limiting pregnancy-related

benefits under the Company’s health insurance plan

to married employees.

(c) Defendant discriminates against women employ-

ees because of their sex by maintaining discriminatory

provisions in its health insurance and life insurance

plans, both of which provide that where a husband

and wife are both employees of Defendant, only the

husband can provide coverage for their dependent chil-

dren under such plans.

9. Since at least July 2, 1965 and continuously

up until August of 1971, Defendant intentionally dis-

criminated against individuals because of their sex in

violation of Section 703 of Title VII, by

(a) providing pregnancy-related fringe benefits to

wives of male employees under more favorable terms

than to female employees, thereby discriminating against

women employees because of their sex.

(b) denying regularly scheduled salary increases to

women employees in accordance with Defendant’s pol-

— =

icy of requiring pregnaiii employees to terminate their

employment at the end of a fixed number of months

of their pregnancy, thereby discriminating against wo-

men employees because of their sex,

(c) limiting the option of early retirement to women

employees, thereby discriminating against male employ-

ees because of their sex.

10. The effect of the policies and practices com-

plained of in paragraphs 8 and 9 above has been

to deprive individuals of equal employment opportuni-

ties and otherwise adversely effect [sic] their status as

employees because of their sex.

PRAYER FOR RELIEF

WHEREFORE, the Commission respectfully prays

that this Court:

A. Grant a permanent injunction enjoining Defend-

ant, its officers, agents employees, successors, assigns

and all persons in active concert or participation with

it from engaging in any employment practice which

discriminates because of sex.

B. Order Defendant to institute and carry out pol-

icies, practices and affirmative action programs which

provide equal employment opportunities for individuals

and which eradicate the effects of its past and present

unlawful employment practices.

C. Order Defendant to make whole those persons

adversely affected by the unlawful employment practices

described above, by providing appropriate back pay,

with interest, in an amount to be proved at trial

and other affirmative relief necessary to eradicate the

effects of its unlawful employment practices.

—13—

D. Grant such further relief as the Court deems

necessary and proper.

E. Award the Commission its costs in this action.

Respectfully submitted,

WILLIAM A. CAREY

General Counsel

WILLIAM ROBINSON

Associate General Counsel

EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION

1206 New Hampshire Avenue, N. W.

Washington, D. C. 20506

Telephone: (202) 343-3234

JULES H. GORDON

Associate Regional Attorney

CHARLES DAVID NELSON

Assistant Regional Attorney

DAVID A. GRABHAM

Trial Attorney

/s/ Chris Roggerson

CHRIS ROGGERSON

Regional Attorney

EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION

Fox Plaza, Suite 1010, 1390 Market Street

San Francisco, California 94102

Telephone: (415) 556-5876

oniGun

First Amended Answer to Complaint.

United States District Court, Northern District of

California.

Equal Employment Opportunity Commission, Plain-

tiff, vs. Occidental Life Insurance Company of Cali-

fornia, Defendant. Civil Action No. C 74 0427 ACW.

Filed: May 8, 1974.

The Defendant, OCCIDENTAL LIFE INSURANCE

COMPANY OF CALIFORNIA, a corporation, answer-

ing Plaintiff's Complaint herein, admits, denies, and

alleges as follows:

1. Answering Paragraph 1, Defendant denies gen-

erally and specifically each and all of the allegations

therein contained.

2. Answering Paragraph 2, Defendant denies gen-

erally and specifically each and all of the allegations

therein contained.

3. Answering Paragraph 3, Defendant admits that

Plaintiff is an agency of the United States of America.

Except as specifically so admitted, Defendant denies

generally and specifically each and all of the remaining

allegations contained in said paragraph.

4. Answering Paragraph 4, Defendant admits the

allegations therein contained.

5. Answering Paragraph 5, Defendant admits the

allegations therein contained.

6. Answering Paragraph 6, Defendant alleges that

it is without knowledge or information sufficient to

form a belief as to the truth thereof.

7. Answering Paragraph 7, Defendant admits that

Plaintiff investigated a charge against Defendant filed

with Plaintiff on or about March 9, 1971, that Plaintiff

—

issued a determination that there was reasonable cause

to believe that said charge was true, thet Plaintiff

thereafter conferred with Defendant with respect to

said charge, and that no Conciliation Agreement was

agreed upon between Plaintiff and Defendant with re-

spect to said charge. Except as specifically so admitted,

Defendant denies generally and specifically each and

all of the remaining allegations contained in said para-

graph.

8. Answering Paragraph 8, Defendant denies gen-

erally and specifically each and all of the allegations

therein contained.

9. Answering Paragraph 9, Defendant denies gen-

erally and specifically each and all of the allegations

therein contained.

10. Answering Paragraph 10, Defendant denies gen-

erally ana specifically each and all of the allegations

therein contained.

FOR A FIRST, SEPARATE AND AFFIRMA-

TIVE DEFENSE, DEFENDANT ALLEGES:

11. The Complaint herein fails to state a claim

upon which relief may be granted.

FOR A SECOND, SEPARATE AND AFFIRM-

ATIVE DEFENSE, DEFENDANT ALLEGES:

12. The Court has no jurisdiction of the subject

matter of the Complaint herein.

FOR A THIRD, SEPARATE AND AFFIRMA-

TIVE DEFENSE, DEFENDANT ALLEGES:

13. The Complaint herein was not filed within

the time limitations specified in Title VII of the Civil

=

Rights Act of 1964, as amended (42 U.S.C. §2000(e)

et seq.).

FOR A FOURTH, SEPARATE AND AFFIRMA-

TIVE DEFENSE, DEFENDANT ALLEGES:

14. The Complaint herein fails to allege with speci-

ficity that Plaintiff has complied with all of the statutory

prerequisites contained in Title VII of the Civil Rights

Act of 1964, as amended (42 U.S.C. §2000(e) et

seq.) to the bringing of this action.

FOR A FIFTH, SEPARATE AND AFFIRMA-

TIVE DEFENSE, DEFENDANT ALLEGES:

15. ‘Plaintiff has failed to comply with all of the

statutory prerequisites contained in Title VII of the

Civil Rights Act of 1964, as amended (42 U.S.C.

§2000(e) et seq.) to the bringing of this action.

FOR A SIXTH, SEPARATE AND AFFIRMA-

TIVE DEFENSE, DEFENDANT ALLEGES:

16. Plaintiff has failed to allege in its Complaint

herein the basis of the original, underlying charge filed

with it against Defendant upon which said Complaint

is purportedly based.

FOR A SEVENTH, SEPARATE AND AFFIRM-

ATIVE DEFENSE, DEFENDANT ALLEGES:

17. The allegations contained in the Complaint

herein are outside of the scope of the original, under-

lying charge filed with Plaintiff against Defendant and

upon which said Complaint is purportedly based.

FOR AN EIGHTH, SEPARATE AND AFFIRM-

ATIVE DEFENSE, DEFENDANT ALLEGES:

18. Defendant’s employment policies and insurance

plans complained of in the Complaint herein constitute,

— =

and/or are based upon, bona fide occupational qualifi-

cations under Title VII of the Civil Rights Act of

1964, as amended (42 U.S.C. §2000(e) et seq.).

FOR A NINTH, SEPARATE AND AFFIRMA-

TIVE DEFENSE, DEFENDANT ALLEGES:

19. Defendant’s employment policies and insurance

plans complained of in the Complaint herein are based

on and justified by business necessity.

FOR A TENTH, SEPARATE AND AFFIRMA-

TIVE DEFENSE, DEFENDANT ALLEGES:

20. Plaintiff has waived any right to bring this

action by its prior entry into a Conciliation Agreement

with Defendant wherein Plaintiff dropped certain of

the allegations contained in the Complaint herein.

FOR AN ELEVENTH, SEPARATE AND AF-

FIRMATIVE DEFENSE, DEFENDANT AL-

LEGES:

21. Plaintiff is estopped from bringing this action

because of its prior entry into a Conciliation Agreement

with Defendant wherein Plaintiff dropped certain of

the allegations contained in the Complaint herein.

FOR A TWELFTH, SEPARATE AND AFFIRM-

ATIVE DEFENSE, DEFENDANT ALLEGES:

22. Plaintiff and Defendant heve previously reached

an accord and satisfaction concerning certain of the

allegations asserted in the Complaint herein.

FOR A THIRTEENTH, SEPARATE AND

AFFIRMATIVE DEFENSE, DEFENDANT AL-

LEGES:

23. The acts and omissions complained of in the

Complaint herein were done by Defendant, if at all,

— =

in good faith and in conformity with, and in reliance

upon, written interpretations and/or opinions of Plain-

tiff.

WHEREFORE, Defendant prays judgment as fol-

lows:

1. That the Complaint be dismissed;

2. That Plaintiff take nothing from its cause herein;

3. That Defendant be awarded its attorneys’ fees

pursuant to Section 706(k) of Title VII of the Civil

Rights Act of 1964, amended;

4. That Defendant be awarded its costs of suit

herein; ~ and

5. For such further relief as the court may deem

appropriate.

DATED: = May 6, 1974

PAUL, HASTINGS, JANOFSKY

& WALKER

DENNIS H. VAUGHN

HOWARD C. HAY

/s/ By Dennis H. Vaughn

Dennis H. Vaughn

Attorneys for Defendant

Occidental Life Insurance

Company of California

—_ Ss

Findings of Fact and Conclusions of Law (Rule 3(g)

Local Rules of the Central District of California).

United States District Court, Central District of Cali-

fornia.

Equal Employment Opportunity Commission, Plain-

tiff, vs. Occidental Life Insurance Company of Califor-

nia, Defendant. Case No. CV 74-1698-AAH.

Filed: Dec. 9, 1974.

This cause came on regularly for hearing on the

Motion of Defendant OCCIDENTAL LIFE INSUR-

ANCE COMPANY OF CALIFORNIA, for Summary

Judgment, or in the alternative Partial Summary Judg-

ment, on November 25, 1974, before the Court, the

Honorable A. Andrew Hauk, Judge presiding. Paul,

Hastings, Janofsky & Walker, by Dennis H. Vaughn,

appeared as counsel for Defendant, and Jean A. Hagins

appeared as counsel for Plaintiff. The Court having

read the papers, and having heard the arguments pro-

pounded by the respective parties, and the cause having

been submitted for decision, the Court being fully

advised makes its Findings of Fact and Conclusions

of Law as follows:

FINDINGS OF FACT

1. This action is based on a charge of discrimination

filed with the Equal Employment Opportunity Commis-

sion (hereinafter referred to as “Plaintiff” or “EEOC” )

on March 9, 1971 by a married female employee

who allegedly had been terminated by Defendant on

or about September 30, 1971. That charge alleged

that the Charging Party had been denied benefits which

were afforded by Defendant to male employees and

further that the Charging Party had been terminated

because of her pregnancy.

—20—

2. The Complaint herein was filed on February

22, 1974, in the Northern District of California, and

by order of that Court, upon motion by Defendant,

transferred to this Court pursuant to 28 U.S.C. §1404

(a) on May 29, 1974. The Complaint alleges, inter

alia, acts of discrimination by Defendant against unmar-

ried female employees, acts of discrimination by De-

fendant against male employees concerning retirement

benefits, and acts of discrimination by Defendant which

admittedly ceased in August 1971.

CONCLUSIONS OF LAW

1. Plaintiff instituted this action for alleged viola-

tions of Title VII of the Civil Rights Act of 1964,

as amended. 42 U.S.C. §2000(e) et seq. (hereinaiter

referred to as “Title VII”).

2. Defendant is an employer engaged in an industry

affecting commerce within tt meaning of Section 701

(b) of Title VII.

3. Plaintiff's action herein was instituted under Sec-

tion 706(f)(1) of Title VII, which provides, in relevant

part:

. . if within [180] days from the filing of

such charge . . . the Commission has not filed

a civil action under this section . . ., the Com-

mission . . . shall so notify the person aggrieved

and within [90] days from the giving of such

notice a civil action may be brought against the

respondent named in the charge ... by the

person claiming to be aggrieved...

4. Section 706(f)(1) of Title VII requires the

EEOC to institute court action within 180 days from

the filing of the charge of discrimination sued upon,

—

or, in the case of charges pending at the time the

EEOC was empowered to sue on its own by the

1972 amendments which became effective on March

24, 1972, within 180 days of March 24, 1972. EEOC

v. Cleveland Mills Company, 364 F. Supp. 1235 (W.D.

N.C. 1973), rev'd, 8 EPD 99602 (C.A. 4, 1974);

EEOC v. Louisville & Nashville Railroad Company,

368 F. Supp. 633 (N.D. Ala. 1974); EEOC v. Union

Oil of California, 369 F. Supp. 579 (N.D. Ala. 1974);

EEOC v. Griffin Wheel Company, 7 EPD 49202,

7 FEP 484 (N.D. Ala. 1974); EEOC v. Kimberly-

Clark Corp., 7 EPD 49336, 7 FEP 666 (W.D. Tenn.

1974); EEOC v. Berman Bros. Iron & Metal Co.,

7 EPD §9212, 8 FEP 96 (N.D. Ala. 1974); EEOC

v. United States Pipe & Foundry Co., 8 EPD 99446,

7 FEP 977 (N.D. Ala. 1974); EEOC v. General

Dynamics Corp., 8 EPD 49724, 8 FEP 588 (N.D.

Tex. 1974).

5. The Complaint-nerein was not filed until some

36 months after the filing of said charge of discrimina-

tion and some 23 months after March 24, 1972. Accord-

ingly, this action is barred by the 180 day provision

set forth in Section 706(f)(1) of Title VII.

6. Since this action is barred by the 180 day pro-

vision set forth in Section 706(f)(1) of Title VII,

the Court lacks subject matter jurisdiction over this

action.

7. Since this action is barred by the 180 day provi-

sion set forth in Section 706(f)(1) of Title VII, the

Complaint fails to state a claim upon which relief

can be granted against Defendant.

8. The California statute of limitations applicable

to this action is California Code of Civil Procedure

—, y

Section 340(3), which sets forth a one year statute

of limitations for such actions.

9. Since this action was not filed within one year

after the alleged discrimination against, and termination

of, the Charging Party took place, this action is barred

by the California statute of limitations. EEOC v. Union

Oil of California, 369 F. Supp. 579 (N.D. Ala. 1974).

10. Since this action is barred by the California

statute of limitations, this Court has no subject matter

jurisdiction over this action.

11. »Since this action is barred by the California

statute of limitations, the Complaint fails to state a

claim upon which relief can be granted against Defend-

ant.

12. The California statute of limitations also bars

those violations alleged in paragraph 9 of the Complaint,

all of which are alleged to have ceased two and a

half years prior to the filing of this action.

13. Since the allegations of paragraph 9 of the

Complaint are barred by the California statute of limi-

tations, this Court lacks subject matter jurisdiction over

the allegations set forth in paragraph 9 of the Com-

plaint.

14. Since the allegations of paragraph 9 of the

Complaint are barred by the California statute of limi-

tations, said allegations fail to state a claim upon

which relief can be granted against Defendant.

15. Paragraph 8(b) of the Complaint, alleging dis-

crimination against unmarried female employees, and

—

paragraph 9(c) of the Complaint, alleging discrimina-

tion against male employees concerning retirement bene-

fits, are outside the scope of the underlying charge

herein and could not have been raised by the Charging

Party, who could not possibly have personally been

discriminated against by the aforesaid alleged discrimi-

natory actions because she was a married female em-

ployee and thus has no “standing” to raise such alle-

gations. Accordingly, the EEOC has no authority to

institute court action concerning said allegations. San-

chez v. Standard Brands, Inc., 431 F.2d 455 (C.A.

5, 1970); King v. Georgia Power Co., 295 F. Supp.

943 (N.D. Ga. 1968); EEOC v. General Electric

Co., 376 F. Supp. 757 (W.D. Va. 1974); Van Hoomis-

sen v. Xerox Corp., 497 F.2d 180 (C.A. 9, 1974).

16. Since the EEOC has no authority to institute

court action concerning the allegations contained in

paragraphs 8(b) and 9(c) of the Complaint, this Court

lacks subject matter jurisdiction over said allegations.

17. Since the EEOC has no authority to institute

court action concerning the allegations contained in

paragraphs 8(b) and 9(c) of the Complaint, said

allegations fail to state a claim upon which relief can

be granted against Defendant.

18. Section 706(g) of Title VII provides that back

pay “shall not accrue from a date more than two

years prior to the filing of a charge with the Commis-

sion.”

a

—

19. The charge of discrimination herein was filed

on March 9, 1971, yet the Complaint seeks back

pay as far back as July 2, 1965.

20. Since the Complaint seeks back pay for a period

more than two years prior to the filing of the charge

of discrimination on March 9, 1971, the Complaint

fails to state a claim upon which relief can be granted

against Defendant with respect to back pay for any

period prior to March 9, 1969.

21. There is no material issue of fact, and the

facts show (a) that the entire Complaint herein is

barred by the 180 day provision of Title VII, (b)

the entire Complaint herein is barred by the California

statute of limitations applicable to such actions, (c)

paragraph 9 of said Complaint is barred by the Cali-

fornia statute of limitations, (d) paragraphs 8(b) and

9(c) of said complaint are outside the scope of the

underlying charge and thus the EEOC lacks authority

to sue thereon, and (e) no back pay may be recovered

for any period preceding March 9, 1969.

Dated: December 9, 1974.

/s/ A. Andrew Hauk,

United States District Judge

=

In the United States Court of Appeals, for the Ninth

Circuit.

Equal Employment Opportunity Commission, Plain-

tiff-Appellant, v. Occidental Life Insurance Company

of California, Defendant-Appellee. No. 75-1705.

Appeal from the United States District Court for

the Central District of California.

Before: WRIGHT KILKENNY, and TRASK, Circuit

Judges. WRIGHT, Circuit Judge:

In this Title VII action the Equal Employment Op-

portunity Commission (EEOC) appeals from the dis-

trict court’s order of dismissal. We reverse and re-

mand.

I.

PROCEEDINGS BELOW

On December 27, 1970, Tamar Edelson filed with

the EEOC a charge against Occidental Life Insurance

Company (Occidental), alleging that she had been

discriminated against because of her sex. She specified

that “the most recent date on which this discrimination

took place” was October 1, 1970, the date of her

discharge by Occidental.

The EEOC referred the charge to the California

Fair Employment Practices Commission, in accordance

with the provisions of Section 706(c) [42 U.S.C. §

2000e-5(c)]. When that agency took no action, the

charge was formally filed with the EEOC on March

9, 1971.

The EEOC undertook an investigation and, on Feb-

ruary 25, 1972, its District Director issued Findings

of Fact that Occidental had discriminated against Ms.

Edelson and also had discriminated against many other

~~

employees through a variety of practices and policies.

Occidental filed exceptions to the findings on March

23, 1972. The EEOC issued its “Reasonable Cause”

Determination on February 8, 1973 and during the

following year, held a conciliation meeting with Occi-

dental.

When that effort proved unsuccessful, the EEOC

filed this action in district court on February 22, 1974.

That court granted Occidental’s motion to dismiss,

findi».7 that:

1. The EEOC has no authority to file suit more

than 180 days after the filing of the underlying

charge, or where, as here, the charge was filed

prior to the 1972 amendments to Title VII

of the Civil Rights Act of 1964, more than

180 days after the effective date of such amend-

ments;

2. Alternatively, the EEOC was barred from filing

this suit by the California statute of limitations;

3. Alternatively, the EEOC was barred from pro-

ceeding on paragraphs 8(b) and 9(c) of its

complaint because the allegations contained

therein were outside the scope of the underlying

charge; and

4. In any event, the EEOC was barred from seek-

ing back pay for any alleged violations occur-

ring more than two years prior to the filing

of the underlying charge.

By its appeal herein, the EEOC challenges only

the first three findings by the court.

We hold:

—_— =

(1) The 180-day language of Section 706(f)(1)

[42 U.S.C. § 2000e-5(f)(1)] does not constitute a

limitation upon the EEOC’s ability to sue in its own

name;

(2) This action is not barred by any state limitations

period; and

(3) The EEOC properly included subparagraphs

8(b) and 9(c) in its complaint.

Il.

THE 180-DAY LANGUAGE OF SECTION 706

(f)(1)

Section 706(f)(1) [42 U.S.C. § 2000e-5(f)(1)]

states in pertinent part:*

. . « [I]f within one hundred and eighty days

from the filing of such charge . . . the [EEOC]

has not filed a civil action under this section

... the [EEOC] .. . 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 or (B)

if such charge was filed by a member of the

[EEOC], by any person whom the charge alleges

was aggrieved by the alleged unlawful employment

practice.

The district court found that the above statute precluded

the EEOC from bringing this action.

The statute on its face contains no express limitation

upon suit by the EEOC. Rather, it precludes civil

1Before the 1972 amendment of Section 706(f)(1), the

relevant time periods were 30 days for both the filing of

the charge with the EEOC, and filing suit after receipt of

a right-to-sue letter.

—

action by the charging party for 180 days so that

the EEOC may during that period pursue conciliation.’

If, after 180 days, the EEOC has neither filed a

civil action nor achieved conciliation, the charging party

may demand a “right-to-sue” letter. On receipt of it,

the charging party has 90 days within which to sue.

Should such private action be filed, the EEOC would

apparently be restricted to intervention.*

However, should the person concerned choose not

to sue during the allotted 90 days, the EEOC is not

prohibited from suing thereafter. The statute in no

way limits the time within which it must sue, so long

as the charging party has not done so.*

This issue has been before the Courts of Appeals

for the Third, Fourth, Fifth, Sixth, Eighth and Tenth

Circuits. All have ruled that Section 706(f)(1) [42

U.S.C. § 2000e-5(f)(1)] does not preclude suit by

the EEOC after the 180-day period has run.°

*The charging party may sue before the 180-day period

has run if:

(a) The EEOC finds no reasonable cause during that

time period [42 U.S.C. § 2000e-5(b)]}; or

(b) The EEOC dismisses the charge during that time

period {42 U.S.C. § 2000e-5(f) (1)].

8H.R. Rep. No. 92-238, 92nd Cong., Ist Sess. 12 (1971),

1972 U.S.C.C.A.N. 2148, quoted in Equal Employment Op-

portunity Comm’n v. Duval Corp., 528 F.2d 945, 948 n.

4 (10th Cir. 1976).

‘The sole exception is that the EEOC must wait 30 days

from the filing of the charge before filing suit. [42 U.S.C.

§ 2000e-5(f) (1)]}.

SEqual Employment Opportunity Comm’n v. Duval Corp.,

528 F.2d 945, 947 (10th Cir. 1976); Equal Employment

Opportunity Comm'n v. Meyer Bros. Drug Co., 521 F.2d 1364,

1365 (8th Cir. 1975); Equal Employment Opportunity Comm'n

v. E.l. duPont de Nemours and Co., 516 F.2d 1297 (3rd

Cir. 1975); Equal Employment Opportunity Comm'n v. Kim-

—

Finding this avalanche of authority most persuasive,

we adopt the rule that the 180-day language of Section

706(f£)(1) does not constitute a limitation upon the

EEOC’s ability to sue in its own name. We conclude

that the district court erred in barring this suit on

the basis of the 180-day language in Section 706(f)(1).

Ill

APPLICABILITY OF RELEVANT

STATE LIMITATIONS PERIOD

The district court held alternatively that the EEOC

suit was barred by the one-year California statute of

limitations found in California Code of Civil Procedure

§340(3).

We have already determined that Section 706(f)(1)

[42 U.S.C. § 2000e-5(f)(1)] does not require the

EEOC to file suit within 180 days of the date the

private charge is filed with that agency. There being

no other portion of Title VII susceptible of interpreta-

tion as a limitation on the time within which the

EEOC must bring suit, we find that there is simply

no governing federal limitations period. See Equal Em-

ployment Opportunity Comm'n vy. Griffin Wheel Co.,

511 F.2d 456, 458, aff'd on rehearing, 521 F.2d 223,

(Sth Cir. 1975).

It is well established that in a private civil rights

action, where Congress has not provided a statute

of limitations, the state statute applied to similar liti-

berly-Clark Corp., 511 F.2d 1352, 1356-59 (6th Cir. 1975);

Equal Employment Opportunity Comm'n v. Louisville and Nash-

ville R.R., 505 F.2d 610 (Sth Cir. 1974); Equal Employment

Opportunity Comm’n vy. Cleveland Mills, 502 F.2d 153 (4th

Cir. 1974). See also Equal Employment Opportunity Comm'n

v. Local 41, Bartenders’ International Union, 369 F. Supp.

827, 829-31 (N.D. Cal. 1973).

=

gation will be applied to the federal action. Johnson

v. Railway Express Agency, Inc., 421 US. 454, 462

(1975), and cases cited therein; Griffin v. Pacific

Maritime Ass'n, 478 F.2d 1118, 1119 (9th Cir. 1973).

In its complaint the EEOC seeks both injunctive

relief and back pay. By its prayer for injunctive relief

the EEOC promotes public policy and seeks to vindicate

rights belonging to the United States as sovereign.

Thus, the EEOC’s request for injunctive relief is not

subject to any state limitations period. Griffin Wheel,

supra, 511 F.2d at 459; Kimberly-Clark, supra, 511

F.2d at 1359-60. Cf. United States v. Summerlin, 310

U.S. 414 (1940). The district court erred insofar as

it barred EEOC’s request for injunctive relief on the

basis of the California limitations period.®

We consider the request for back pay. Occidental

argues that, even though the EEOC is party plaintiff,

“fijmsofar as the . . . suit constitutes a proper legal

conduit for the recovery of sums due individual citi-

zens rather than the treasury, it is a private and not

a public action.” United States v. Georgia Power, 474

F.2d 906, 923 (Sth Cir. 1973), quoted in Griffin

Wheel, supra, 511 F.2d at 458.

Since we cannot agree that EEOC’s request for back

pay must be treated as “private” in nature, we believe

the district court erred in applying the California limi-

tations period to bar the back pay request.

Our starting point is the recent statement of the

Supreme Court in Franks v. Bowman Transp. Co., ....

US. ...., 44 USLW 4356 (Mar. 24, 1976): “[C]laims

*We express no opinion as to which, if any, state limitations

statute would apply had an individual or a class, rather than

the EEOC, been party plaintiff.

a

under Title VII involve the vindication of a major

public interest... .” Id. at ......... n.40, 44 USLW

at 4365 n.40, quoting Section-By-Section Analysis, ac-

companying the Equal Employment Opportunity Act

of 1972—Conference Report, 118 Cong. Rec. 7166,

7168 (1972).

The Court in Albermarle Paper Co. v. Moody, 422

U.S. 405 (1975), discussed in some detail the nature

of Title VII claims for backpay:

As the Court observed in Griggs v. Duke Power

Co., 401 U.S., at 429-430, the primary objective

[of Title VII] was a prophylactic one:

“It was to achieve equality of employment op-

portunities and remove barriers that have oper-

ated in the past to favor an indentifiable group

of white employees over other employees.”

Backpay has an obvious connection with this pur-

pose. If employers faced only the prospect of

an injunctive order, they would have iittle incentive

to shun practices of dubious legality. It is the

reasonably certain prospect of a backpay award

that “provide|s| the spur or catalyst which causes

employers and unions to self-examine and to self-

evaluate their employment practices and tc en-

deavor to eliminate, so far as possible, the last

vestiges of an unfortunate and ignominious page

in this country’s history.” United States v. N. L.

Industries, Inc., 479 F.2d 354, 379 (CA8 1973).

It is also the purpose of Title VII to make

persons whole for injuries suffered on account

of unlawful employment discrimination.

Id. at 417-18. (Emphasis added.)

~~ eS

That an award of back pay promotes the primary

statutory objective of deterrence’ was also noted by

the Sixth Circuit in Meadows v. Ford Motor Company,

510 F.2d 939, 948 (6th Cir. 1975).

The Moody Court noted that “[t]he backpay pro-

vision [of Title VII] was expressly modeled on the

backpay provision of the National Labor Relations

Act.” 422 U.S. at 419 and n.11. It is established

doctrine that a back pay order under Section 10(c)

of the National Labor Relations Act [29 U.S.C. §

160(c)}| “‘is a reparation order designed to vindicate

the public policy of the statute by making the employees

whole~ for losses suffered on account of an unfair

labor practice.” National Labor Relations Board v.

J. H. Rutter-Rex. Mfg. Co., 396 U.S. 258, 263 (1969),

quoting Nathanson vy. National Labor Relations Board,

344 US. 25, 27 (1952).

It is true, of course, that whenever a party obtains

relief under a federal statute, public policy is vindicated

even though direct, immediately cognizable benefits

may flow only to the individual. Thus, for example,

a private action under Title 42 U.S.C. § 1981 is subject

to state limitations periods despite the fact that. such

recovery may be said to promote the public policy

embodied in the statute. See Johnson, supra, 421 US.

454 (1975).

But certain federal acts, such as the National Labor

Relations Act, are intended to be broadly prophylactic

TThe Court in Moody stated (at

“backpay should be denied only for reasons which, if

applied generally, would not frustrate the central statutory

purposes of eradicating discrimination throughout the econ-

omy and making persons whole for injuries suffered through

past discrimination.”

422 U.S. at 421. (Emphasis added.)

ek

ORE nie 6 ai OO wep, me sla. we"

culties

as well as remedial. See Section 1 [29 U.S.C. § 151].

Several circuits, including our own, have recognized

that back pay orders promote the prophylactic as well

as the remedial purposes of the National Labor Rela-

tions Act.*

The National Labor Relations Board (NLRB) does

not pursue the “adjudication of private rights.” Rather,

it “acts in a public capacity to give effect to the

declared public policy of the Act. . . .” National

Licorice Co. v. National Labor Relations Board, 309

U.S. 350, 362 (1940). “The fact that these proceedings

[may] operate to confer an incidental benefit on private

persons does not detract from this public purpose.”

Nabors v. National Labor Relations Board, 323 F.2d

686, 688-89 (Sth Cir. 1963).

Accordingly, the NLRB, as an agency of the United

States seeking enforcement of public rights, is not bound

by state limitations statutes even when seeking back

pay. Nabors, supra, at 688. See also J. H. Rutter-

Rex Mfg. Co. v. National Labor Relations Board,

399 F.2d 356, 358, 362, 364 (Sth Cir. 1968), rev'd

on other grounds, 396 U.S. 258 (1969).°

8Marriott Corp. v. National Labor Relations Board, 491

F.2d 367, 371 (9th Cir. 1974); National Labor Relations

Board v. United Marine Division, Local 33, National Maritime

Union, AFL-CIO, 417 F.2d 865, 868 (2nd Cir. 1969); Trinity

Valley Iron & Steel Co. v. National Labor Relations Board,

410 F.2d 1161, 1168 (Sth Cir. 1969); Nabors v. National

Labor Relations Board, 323 F.2d 686, 688-89 (Sth Cir. 1963).

In Rutter-Rex, after ruling that state limitations statutes

did not apply to the NLRB’s action, the Fifth Circuit modified

the Board’s order because of inordinate administrative delay

to the prejudice of defendant. The Supreme Court reversed

and ordered enforcement of the back pay order in its entirety.

In doing so, the Court assumed the inapplicability of state

limitations periods.

— =

The Civil Rights Act of 1964 grew out of Congres-

sional awareness of the continued, pervasive discrimina-

tion against minorities, particularly Negroes, in voting,

access to public facilities, public education and employ-

ment. As the Committee on the Judiciary of the House

of Representatives reported:

Considerable progress has been made in elimi-

nating discrimination in many areas. . . . Never-

theless, in the last decade it has become increasing-

ly clear that progress has been too slow and

that national legislation is required to meet a

national need which becomes ever more obvious.

. [This Act] is designed as a step toward

eradicating significant areas of discrimination on

a nationwide basis. It is general in application

and national in scope.

H. Rep. No. 914, 1964 U.S.C.C.A.N. 2391, 2393

(1964).

Thus, despite the existence in 1964 of such

remedial statutes as the Civil Rights Acts of 1866,

1870 and 1871 [42 U.S.C. §§ 1981-88], Congress be-

lieved that some additional federal action was necessary

to further the public objective of elimination of nation-

wide discrimination.” It decided that this objective

could best be pursued by federal agency enforcement.

The original Section 706 of the Civil Rights Act

of 1964, 78 Stat. 259-61, established an enforcement

scheme to be implemented primarily by the EEOC.

In 1972 Congress made it even more clear that “the

10In Johnson, supra, the Court made clear the “

distinct and independent” remedies available under Title 42

U.S.C. § 1981 on the one hand, and Title VII on the other.

421 US. at 461.

nO tl Re ie a titel

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=

vast majority of complaints will be handled through

the offices of the EEOC or the Attorney General.

. . »” Section-By-Section Analysis, supra, 118 Cong.

Rec. at 7168.

The basic function of the EEOC, as with the NLRB,

is to prevent and eliminate unlawful employment “prac-

tices and devices,” primarily through “conference, con-

ciliation, and persuasion.” Alexander v. Gardner-Denver

Co., 415 U.S. 36, 44 (1974); Section 706(a) & (b)

[42 U.S.C. § 2000e-5(a) & (b)]. The EEOC has

the power to investigate, promote voluntary compliance,

and bring suit upon failure of conciliation efforts."

The EEOC vindicates public policy by suing in

federal court, as does the NLRB by seeking enforcement

of its orders in the courts of appeals. This is so

regardless of the type of relief sought by either. As

in labor law, so in Title VII law, the fact that private

parties may benefit from public agency action does

not detract from the public nature of those proceed-

ings.

We are aware that the Fifth Circuit has reached

a contrary result in at least two cases. Griffin Wheel,

supra, 511 F.2d at 458-59; Georgia Power, supra,

474 F.2d at 922-23. We decline to follow its lead.

Both of those cases were decided before the Supreme

Court decisions in Moody, supra, and Franks, supra.

Moreover, the court in Georgia Power, 474 F.2d at

921, relied on the decision of the Supreme Court

in Rutter-Rex, supra, but ignored the Court’s statement

therein that “back pay ... is .. . designed to

vindicate . . . public policy... .” 396 U.S. at 263.

“Unlike the NLRB, the EEOC has no adjudicative powers.

Yet the NLRB must itself seek court enforcement of its orders.

~ 2

Occidental directs our a.:utic” « the Court’s deci-

sion in Johnson, su;ra. The Court there held that

a federal cause of action under Title 42 U.S.C. § 1981

was governed by “the most appropriate [limitation pe-

riod] provided by state law.” 421 U.S. at 462. However,

Johnson involved a private claimant litigating under

Section 1981, while this case involves a public agency

enforcing Title VII rights.

Also, the Johnson Court did not qualify its holding

according to the type of relief sought. Indeed, by

discussing the availatility under Section 1981 of “both

equitaisie and legal relief,” 421 U.S. at 460, the Court

intimated that state limitations periods would apply

to private actions brought under Section 1981, regard-

less of the type of relief sought.

Earlier in this opinion we joined the Fifth and Sixth

Circuits, in Griffin Wheel and Kimberly-Clark respec-

tively, in ruling that state limitations periods do not

govern the EEOC’s request for injunctive relief. Nothing

in Johnson dictates a contrary conclusion. Similarly,

Johnson does not preclude us from concluding that

a request by the EEOC for back pay, in vindication

of public policy, is likewise immune from state limita-

tions” periods.”

There are sound practical considerations in support

of our conclusion. First, subjecting the EEOC to state

12]t appears that the EEOC would likewise be immune

from the defense of laches. Cf. United States v. Summerlin,

310 U.S. 414, 416 (1940); Nabors v. National Labor Relations

Board, 323 F.2d 686, 688 (Sth Cir. 1963). But see Griffin

Wheel, supra, 511 F.2d at 459 n.5; Georgia Power, supra,

474 F.2d at 923. However, since the issue was not raised

herein, we need not address it.

18The court in Kimberly-Clark seemed to so conclude, al-

it did not make clear what type of relief was at issue.

511 F.2d at 1359-60.

= =

limitations periods, often as short as one year,’* would

frustrate its attempts to resolve disputes by means

of administrative “conference, conciliation, and per-

suasion,” [42 U.S.C. § 2000e-5(b)], rather than by

court action.”

Second, it wcuid be cumbersome to determine the

applicability of state limitations statutes according to

the type of relief sougt:t. As the Sixth Circuit stated

in Meadows, supra, 510 F.2d at 945-46:

“(Back pay] may not properly be viewed as a

mere adjunct of some more basic equity. It is

properly viewed as an integral part of the whole

of relief which seeks not to punish the respondent

but to compensate the victim of discrimination.”

It is unreasonable to give the EEOC an open ticket

for equitable relief, but to impose time constraints

on back pay claims even though they are “an integral

part of the whole of relief” sought.

Third, Section 706(g) [42 U.S.C. § 2000e-5(g)]

provides: “Back pay liability shall not accrue from

a date more than two years prior to the filing of

a charge with the Commission [EEOC].” Thus, an

employer need not produce past employment records

except for the period of time the charge is pending,

and the preceding two years.

Finally, despite the absence of a controlling federal

limitations period, at least two factors are at work

14See, e.g., Johnson, supra, 421 U.S. at 462 & n.7; Griffin

Wheel, supra, 511 F.2d at 459.

Clearly the cause of action “accrues” on the last date

on which the allegedly unlawful act or practice occurs. Col-

lins v. United Airlines, Inc., 514 F.2d 594, 596 & n.2 (9th

Cir. 1975); Griffin Wheel, supra, 511 F.2d at 459 n.6. Cf.

Johnson, supra, 421 U.S. at 462.

= =

to minimize EEOC dalliance. First, the charging party

may demand a right-to-sue letter should the EEOC

fail to obtain voluntary compliance or to sue within

180 days of the original filing. Section 706(f)(1)

[42 U.S.C. § 2000e-5(f)(1)]; Johnson, supra, 421

U.S. at 458. Second, in extreme cases a federal district

court could compel agency action, See Sections 6(b)

and 10e(A) of the Administrative Procedure Act [5

U.S.C. §§ 555(b), 706(1)]. Cf. National Labor Rela-

tions Board v. J. H. Rutter-Rex Mfg. Co., 396 US.

258, 266 & n. 3 (1969) (dictum).

We conclude that the district court erred insofar

as it barred the EEOC’s back pay claim on the basis

of the California limitations period.

IV.

SCOPE OF THE EEOC’S COMPLAINT

In her original charge filed with the EEOC, Ms.

Edelson alleged that Occidental refused, on account

of sex, to provide her with maternity leave, other

pregnancy benefits, insurance, vacation benefits and

seniority rights.

In the course of its investigation the EEOC discov-

ered apparent discrimination against unmarried female

employees in the distribution of “pregnancy-related ben-

efits.” It also discovered apparent discrimination against

male employees in the administration of the retirement

system. Although these forms of alleged discrimination

were not mentioned in the original charge, the EEOC

included them in subparagraphs 8(b) and 9(c) of

its complaint. Occidental argued successfully below that

these charges should be: dismissed as being outside

the scope of the original charge.

+ ll he te OES AL hie

—- =

As amended in 1972, Section 710 of Title VII

provides:

For the purpose of all hearings and investigations

conducted by the [EEOC] or its duly authorized

agents or agencies, section 11 of the National

Labor Relations Act (49 Stat. 455; 29 U.S.C.

161) shall apply.

[86 Stat. 109; 42 U.S.C. § 2000e-9]

While the investigation in this case preceded the 1972

amendment of Section 710, it is clear that the prior

statute was similar in scope. See Motorola, Inc. v.

McLain, 484 F.2d 1339, 1342-44 (7th Cir. 1973);

Graniteville Co. v. Equal Employment Opportunity

Comm'n, 438 F.2d 32, 39 (4th Cir. 1971).

Section 11(1) of the National Labor Relations Act

[29 U.S.C. § 161(1)] provides in part that the NLRB

may gain access to “any evidence of any person being

investigated or proceeded against that relates to any

matter under investigation or in question.” This lan-

guage was given a broad reach in National Labor

Relations Board v. Wyman-Gordon Co., 394 U.S. 759,

768 (1969).

Section 709(a) of Title VII [42 U.S.C. § 2000e-

8(a)] today provides, as it did in 1964:

In connection with any investigation of a charge

filed under section 706, the Commission or its

designated representative shall at all reasonable

times have access to, for the purposes of examina-

tion, and the right to copy any evidence of any

person being investigated or proceeded against

that relates to unlawful employment practices cov-

ered by this title and is relevant to the charge

under investigation.

— =

Had Occidental believed that the EEOC’s investi-

gation exceeded the permissible statutory scope, it could

have refused the EEOC’s demand for access and sought

adjudication of its rights."* Occidental did not do so.

Thus we can only conclude that the EEOC investiga-

tion was reasonable and that the information supporting

the allegations in subparagraphs 8(b) and 9(c) was

acquired during that reasonable investigation.

In Equal Employment Opportunity Comm'n v. Gen-

eral Electric Co., .... F.2d ...., .... (4th Cir. Jan. 22,

1976), the Fourth Circuit held:

So long as [discovery of| the new discrimination

arises out of the reasonable investigation of the

charge filed, it can be the subject of a “reasonable

cause” determination, to be followed by an offer

by the Commission of conciliation, and, if con-

ciliation fails, by a civil suit, without the filing

of a new charge on such claim of discrimination.

In other words, the original charge is sufficient

to support action by the EEOC as well as a

civil suit under the Act for any discrimination

stated in the charge itself or {discovered| in the

course of a reasonable investigation of that charge,

provided such discrimination was included in the

reasonable cause determination of the EEOC and

was followed by compliance with the conciliation

procedures fixed in the Act.

16See Local No. 104, Sheet Metal Workers International

Ass'n v. Equal Employment Opportunity Comm’n, 439 F.2d

237, 241-43 (9th Cir. 1971); Circle K Corp. v. Equal Em-

ployment Opportunity Comm'n, 501 F.2d 1052 (10th Cir.

1974); Joslin Dry Goods Co. v. Equal Employment Opportunity

Comm'n, 482 F.2d 178 (10th Cir. 1973); Motorola, Inc.

v. McLain, supra; Graniteville Co., supra.

— =

(Emphasis in original.) Accord, Equal Employment

Opportunity Comm'n v. Huttig Sash & Door Co., 511

F.2d 453, 455 (Sth Cir. 1975); Equal Employment

Opportunity Comm’n v. Kimberly-Clark Corp., 511

F.2d 1352, 1363 (6th Cir. 1975). We agree with

the reasoning of the Fourth, Fifth and Sixth Circuits.”

In this case, Occidental received adequate notice

during administrative investigation of the substance of

the issues subsequently raised in subparagraphs 8(b)

and 9(c) of the EEOC’s complaint. Reference was

made to those issues in both the District Director’s

Findings of Fact (February 25, 1972), and the EEOC’s

Determination of Reasonable Cause (February 8,

1973). Thus the EEOC complied with the statute by

presenting these issues for conciliation. See Section

706(f£)(1) [42 U.S.C. § 2000e-5(f)(1)].

We note that the EEOC itself could independently

bring charges based upon the information it reasonably

acquired during the investigation of Ms. Edelson’s

charge. See Section 706(b) [42 U.S.C. § 2000e-5(b) ].

To require the EEOC to pursue that route, rather

than allowing it to include the new charges along

with the original one in a single Determination of

1TIn so agreeing we do not depart in any respect from

our recent decision in Oubichon v. North American Rockwell

Corp., 482 F.2d 569 (9th Cir. 1973), in which we stated:

“When an employee seeks judicial relief for incidents

not listed in his original charge to the EEOC, the judicial

complaint nevertheless may encompass any discrimination

like or reasonably related to the allegations of the EEOC

charge, including new acts occurring during the pendency

of the charge before the EEOC.”

Id. at 571.

Oubichon involved the complaint of a private party, he being

subject to traditional notions of standing. We deal here with

a complaint filed by a public agency seeking vindication of

public rights.

— =

Reasonable Cause, would be to champion form over

substance and to generate “an inexcusable waste of

valuable administrative resources” and “intolerable de-

lay,” in violation of statutory purpose. General Electric,

supra, .... F.2d at ..... 11 C.C.H.—Empl. Prac. Dec.

at 6614.

It remains true that Ms. Edelson would not have

had “standing” to charge Occidental with discrimination

against unmarried female employees (Ms. Edelson was

married), or against male employees with respect to

retirement. However, as we have discussed earlier, the

EEOC is charged with the vindication of public policy,

not merely with the enforcement of private rights.

In this case, enforcement by the EEOC of the objec-

tives to Title VII should not be frustrated because

a private charging party may not have had “standing”

to make a particular claim.

Finally, it is argued that “amendment” by the EEOC

of the original charge may operate to the detriment

of the charging party. In this case such a result is

speculative. In any case, the charging party should

be able to intervene in either the administrative or

judicial proceeding to insure that his or her rights

are fully protected. See Section 706(f)(1) [42 U.S.C.

§ 2000e-5(f)(1)].

For the above reasons, we conclude that the district

court erred in dismissing subparagraphs 8(b) and 9(c)

of the EEOC’s complaint.

ee

_—

V.

CONCLUSION

The judgment of the district court is reversed and

the cause is remanded for further proceedings consistent

with this opinion.

Section 706(f)(1) of Title VII of the Civil Rights

Act of 1964, as Amended, 42 U.S.C. Section

2000e-5(f)(1) (1976).

(f)(1) If within thirty days after a charge is filed

with the Commission or within thirty days after expira-

tion of any period of reference under subsection (c)

or (d), the Commission has been unable to secure

from the respondent a conciliation agreement acceptable

to the Commission, the Commission may bring a civil

action against any respondent not a government, govern-

mental agency, or political subdivision named in the

charge. In the case of a respondent which is a govern-

ment, governmental agency, or political subdivision,

if the Commission has been unable to secure from

the respondent a conciliation agreement acceptable to

the Commission, the Commission shall take no further

action and shall refer the case to the Attorney General

who may bring a civil action against such respondent

in the appropriate United States district court. The

person or persons aggrieved shall have the right to

intervene in a civil action brought by the Commission

or the Attorney General in a case involving a govern-

ment, governmental agency, or political subdivision.

If a charge filed with the Commission pursuant to

subsection (b) is dismissed by the. Commission, or

if within one hundred and eighty days from the filing

of such charge or the expiration of any period of

ee

reference under subsection (c) or (d), whichever is

later, the Commission has not filed a civil action under

this section or the Attorney General has notified a

civil action in a case involving a government, govern-

mental agency, or political subdivision, or the Commis-

sion has uot entered into a conciliation agreement

to which the person aggrieved is a party, the Commis-

sion, or the Attorney General in a case involving

a government, governmental agency, or political subdi-

vision, 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 ag-

grieved, or (B) if such charge was filed by a member

of the Commission, by any person whom the charge

alleges was aggrieved by the alleged unlawful employ-

ment practig¢e. Upon application by the complainant

and in such circumstances as the court may deem

just, che court may appoint an attorney for such com-

plainant 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, or the Attorney General in

a case involving a government, governmental agency,

or political subdivisoin, to intervene in such civil action

upon certification that the case is of general public

importance. Upon request, the court may, in its discre-

tion, stay further proceedings for not more than sixty

days pending the termination of State or local proceed-

ings described in subsections (c) or (d) of this section

or further efforts of the Commission to obtain volun-

tary compliance.