Appendix — EEOC v. Associated Dry Goods Corp.
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ES
lupreme Court, U. i“
FILED
JUN 10 1980
JOINT APPEND
In the Supreme Court of the United States
OCTOBER TERM, 1979
No. 79-1068
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Petitioner
—VV.—
ASSOCIATED DRY Goops CORPORATION
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE FOURTH CIRCUIT
PETITION FOR WRIT OF CERTIORARI FILED JANUARY 7, 1980
CERTIORARI GRANTED MARCH 17, 1980
TABLE OF CONTENTS
Relevant Docket Entries ..20......0......0cc.cccccccecccceeeeee es sie cadena
Amended Complaint and Attached Exhibits A-L........
Motion to Dismiss .........0.00000000000.0.2-2-. tisacidlad wacaubaiahabedeeemeedaasions
Letter from Roger S. Kaplan to the Honorable Robert H.
Merhige, Jr. ......... PII ICS EFS EET OO OREN el IO A
Agreement of Non-disclosure executed by Samuel A. Vitaro..
Ceecgen Gf Tiseriination ..........................................
Order denying in part, and sustaining in part, the motion to
ER GEN SER wae ae, Se
re re cr ae te
Order granting motion to transfer Equal Employment Oppor-
tunity Commission V. Joseph Horne Co., Civil Action No.
ie RD Th EUR Sad ee Oe SLPS SE RT Ra
Defendant’s Answers to Plaintiff’s Interrogatories
Ura conaciesting cape ........................................__...........
Order entering judgment in faver of plaintiff
Order granting the petition for a writ of certiorari
Page
100
108
109
110
111
113
1
RELEVANT DOCKET ENTRIES
06-27-75 (1) Complaint filed; summonses issued.
07-08-75 (2) Marshals return on summons as to all de-
fendants listed executed and filed.
08-26-75 (3) Deft’s Motion to Dismiss with Supporting
Memorandum filed.
09-02-75 (4) ORDERED that Plitf. may have up to & in-
cluding 09/29/75 in which to file response to Deft’s Mo-
tion to Dismiss); ENTERED by RRM on 09/02/75 &
filed. Copies mailed.
09-25-75 (5) ORDER that Pltf may have up to & including
10/31/75 within which to file its response to Deft’s Mo-
tion to Dismiss, ent. 9/25/75, RRM, filed. Copies mailed.
10-10-75 (6) ORDERED that Deft. may file Answer with-
in 10 days after Court finally rules on Deft’s Motion to
Dismiss, ENTERED on 10/10/75 & filed. Copies mailed.
10-31-75 (7) Pltf’s Memorandum in Opposition to Motion
to Dismiss Complaint, filed.
12-01-75 (8) Memorandum of Points ane Authorities in
Reply to Pltf’s Memorandum in Opposition to Deft’s Mo-
tion to Dismiss, filed.
06-25-76 (9) Court’s Memorandum and ORDER denying
deft’s motion to dismiss in part and sustaining Deft’s
motion to dismiss in part, ent. 6-25-76, RRMjr, filed.
Copies mailed.
07-08-76 (10) ORDERED parties to action brief within 15
days from entry of this Order issue of whether Civil
Rights Act of 1964, ENTERED by RRMjr on 07/08/76
& filed. Copies mailed to all counsel of record.
07-14-76 (11) ORDER that the parties may have until
8/8/76 in which to file their briefs, ent. 7/14/76, RRM,
filed. Copies mailed.
07-28-76 (12) Pltf’s Memorandum in Support of Motion
to Join Parties Deft and Amend Complaint, filed.
2
07-28-76 (13) Pltf’s Motion to Join Parties and Amend
Complaint, filed.
08-09-76 (14) Deft’s Memorandum of Points and Authori-
ties in Support of Deft’s Position on the Merits, filed.
08-09-76 (15) Pltf’s Supplemental Memorandum Following
Decision on Motion to Dismiss, filed.
08-24-76 (16) ORDERED Motion to join parties Deft &
amend complaint filed by Pltf on 07/28/76 is hereby
GRANTED; Defts directed to respond to amended com-
plaint within 20 days from entry of this Order, EN-
TERED by RRMjr on 08/24/76 & filed. Copies mailed
to all counsel of record.
08-25-76 (17) PIltf’s Amended Complaint for declaratory
judgment & injunction, filed.
08-26-76 (18) Summons issued on Amended Complaint.
08-27-76 (19) ORDER allowing Defts 20 days from serv-
ice to respond to amegiled complaint ent. 8-27-76, RRM,
JR., filed. Copies mail@i.
09-20-76 (20) Defts’ Motion for Extension of Time, filed.
09-20-76 (21) ORDERED Defts have until 09/23/76 in
which to respond to amended complaint, ENTERED by
RRMjr on 09/20/76 & filed. Copies mailed to all counsel
of record.
09-23-76 (22) Defts’ Answer, filed. No jury demand.
11-16-76 (23) Pitf’s Motion for Relief from Order, filed.
11-16-76 (24) Pitf’s Memorandum in Support of Motion
for Relief from Order, filed.
11-22-76 (25) Defts’ Memorandum in Support of Defts’
Position on Merits, filed.
11-23-76 (26) ORDERED Defts may respond within 10
days to Pitf’s motion for relief, ENTERED by RRMjr
on 11/23/76 & filed. Copies mailed to all counsel of rec-
ord.
3
12-07-76 (27) ORDER allowing Pltf until 1-22-77 to file
response to Dft’s memorandum ent. 12-7-76, RRM,JR.,
filed. Copies mailed.
12-14-76 (28) Pltf’s Interrogatories to Defendants, filed.
01-05-77 (29) ORDER that time for Pltf’s response to
Defts Memorandum in Support of Defts’ Position on
Merits extended to 1-31-77, ent. 1-6-77, RRMjr, filed.
Copies mailed.
02-01-77 (30) ORDERED time for Defts to answer inter-
rogatories extended to 01/31/77 & time for Pltf. to file
memorandum on merits extended to 02/14/77, nunc pro
tune 01/31/77, ENTERED by RRMjr on 02/01/77 &
filed. Copies mailed to all counsel of record.
02-04-77 (31) Deft’s Answers to Pltf’s Interrogatories,
filed.
03-01-77 (32) ORDER, consolidating CA-76-0510 with this
case. Entered by RRM, jr., on 03/01/77 & filed. Copies
mailed to all counsel of record.
04-01-77 (33) EEOC’s Supplemental Response in Support
of Deft’s Position on the Merits, filed.
02-11-78 (34) Pltfs’ reply memorandum, received (no cer-
tificate) .
07-18-78 (35) Memorandum of the Court filed.
07-18-78 (36) ORDER granting in CA 76-0510-R, EEOC’s
application for enforcement of adm. subpoena duces
tecum; judgment on merits in CA 75-0297-R hereby en-
tered in favor of the Pltf, Assoc. Dry Goods Corp; void-
ing EEOC procedural regulations of charging parties any
information in EEOC investigative files; enjoining Com-
mission from making such disclosures; denying request
of Plitf, Assoc. Dry Goods, for atty’s fees & costs in de-
fending against EEOC’s action to enforce subpoena duces
tecum ent. 7-18-78, RRM,JR., filed. Copies mailed.
08-01-78 (37) Joseph Horne Co.’s Notice of Appeal in CA
76-0510-R, filed.
_
4
08-01-78 (38) Joseph Horne Co.’s Motion for Stay of Or-
der Pending Appeal and for Interim Relief, filed.
08-04-78 (39) ORDER that Respondent-Appellant’s appli-
cation for stay pending appeal GRANTED, ent. 8-3-78,
RRMjr., filed. Copies mailed.
08-10-78 (40) Defts’ Notice of Appeal, filed. (No fees re-
ceived).
08-10-78 (41) Defts’ Motion for Stay Pending Appeal,
filed.
08-10-78 (42) Defts’ Memorandum in Support of Motion
for Stay, filed.
08-14-78 (43) Pltf-Appellee’s Answer to Defts-Appellants’
Motion For Stay Pending Appeal, filed.
08-16-78 (44) ORDER, that Defts-Appellants’ motion for
stay pending appeal of Order of Court dated 07/18/78 is
GRANTED, but only to the extent it pertains to proceed-
ings and records involving parties other than Associated
Dry Goods Corp. or its divisions, including the Joseph
Horne Co. Entered by RRM,JR., on 08/16/78 & filed.
Copies mailed.
5
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
RICHMOND DIVISION
Civil Action No. 75-0297-R
ASSOCIATED DRY GOODS CORPORATION, PLAINTIFF
en
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (EEOC),
and ETHEL B. WALSH, individually and as “Acting
Chairman,” and permanent Vice Chairman of the
EEOC, DANIEL E. LEACH, individually and as Mem-
ber of the EEOC, CoLston A. LEWIS, individually and
as Member of the EEOC, RAYMOND L. TELLES, in-
dividually and as Member of the EEOC, ALVIN L.
GOLUB, individually and as Acting Executive Director
of the EEOC, ABNER W. SIBAL, individually and as
General Counsel of the EEOC, EDUARDO PENA, Jr.,
individually and as Director of Compliance of the
EEOC, and EUGENE V. NELSON, individually and as
District Director, Pittsburgh, Pennsylvania, District
Office, of the EEOC, DEFENDANTS
AMENDED COMPLAINT
FOR DECLARATORY JUDGMENT
AND INJUNCTION
Associated Dry Goods Corporation, by its attorneys, for
its complaint against the Defendants allege, as follows:
AS AND FOR A FIRST SEPARATE
AND DISTINCT CAUSE OF ACTION
NATURE OF THE ACTION
1. This is a civil action seeking declaratory, injunctive
and other relief. Plaintiff seeks a judgment declaring that
confidential business records of the Plaintiff, subpoenaed
by Defendants during their administrative investigations,
6
should not be disclosed to the charging parties, their
attorneys or any other person. In addition, Plaintiff
seeks an injunction against such disclosure.
BASES OF JURISDICTION
2. Jurisdiction of this Court is founded upon the
Freedom of Information Act (F.0.I.A.), as amended, 5
U.S.C. § 552 (1974); the Administrative Procedure Act,
5 U.S.C. §§ 551, et seq., 701, et seg.; Title 28 U.S.C.
§§ 13831, 13837, 1651; the Declaratory Judgment Act, as
amended, 28 U.S.C. §§ 2201-2203; Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e,
et seg. (1972); and, the Trade Secrets Act, 18 U.S.C.
§ 1905.
3. The matters in controversy exceed the sum of
$10,000.00, exclusive of interest and costs, and arise un-
der the laws of the United States.
THE PARTIES
4. Plaintiff, Associated Dry Goods Corporation,
(ADG) is a Virginia corporation incorporated in the
City of Richmond. It owns and operates numerous retail
department stores throughout the United States.
5. The Joseph Horne Company (hereinafter referred
to as “Horne’s’”) is a division of ADG authorized to do
business in the Commonwealth of Pennsylvania, where it
operates several retail department stores in the metro-
politan Pittsburgh vicinity.
6. Defendant Equal Employment Opportunity Com-
mission (hereinafter referred to as the “E.E.0.C.”) is
an administrative agency of the Federal Government,
created under the authority of Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e, et
seq.
(a) Defendant E.E.0.C. is an “agency” within the
meaning of §551(1) of the Administrative Procedure
Act, 5 U.S.C. § 551(1), and § 552(e) of the F.O.LA., as
amended, 5 U.S.C. § 552(e) (1974).
on
i <4
7
(b) Defendant E.E.0.C. has its principal offices and
place of business in the City of Washington, District of
Columbia.
6-1. (a) The individual defendants include the “Act-
ing Chairman” and permanent Vice Chairman, and Com-
missioners of the E.E.0.C., and named officers, agents or
employees of the E.E.0.C., as follows:
(1) ETHEL B. WALSH is “Acting Chairman” and
permanent Vice Chairman of the E.E.0.C.;
(2) DANIEL E. LEACH, COLSTON A. LEWIS, and
RAYMOND L. TELLES are Members of the E.E.O.C.;
(3) ALVIN L. GOLUB, is Acting Executive Director
of the E.E.0.C.;
(4) ABNER W. SIBAL is General Counsel of the
E.E.0.C.;
(5) EDUARDO PENA, JR., is Director of Compli-
ance of the E.E.0.C.;
(6) EUGENE V. NELSON is District Director for
the Pittsburgh, Pennsylvania, District Office of the
E.E.O.C.
(b) Upon information and belief, all of the individual
Defendants named in subparagraph (a) of this para-
graph maintain their offices at the E.E.0.C’s principal
offices located in the City of Washington, District of
Columbia, except for Defendant Eugene V. Nelson, whose
offices are located at 1000 Liberty Avenue, Pittsburgh,
Pennsylvania.
(c) The Defendant E.E.0.C. and the said individual
Defendants are hereinafter referred to as “Defendants”.
(d) The Defendants and each of them are authorized
to exercise only such powers as are conferred upon
them by Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. §§ 2000e, et seq., and lawful regula-
tions issued pursuant to § 713 of said statute, 42 U.S.C.
§ 2000e-12(a), and then only in the manner prescribed
therein.
FACTUAL ALLEGATIONS
7. Upon information and belief, the following in-
dividuals who were employed at Plaintiff’s Horne’s di-
6
8
vision at all material times, filed charges with the De-
fendant E.E.O.C.:
Charging Party
Date Charge Filed
Basis For Charge
Katherine Murray
November 16, 1971
Race Discrimination
Helen Pollock January 3, 1972 Sex Discrimination
Mary Kritko January 17, 1972 Sex Discrimination
Lois Blake February 15, 1972 Sex Discrimination
Marlene Denk
Marsue Dingley
February 28, 1972
June 6, 1973
Sex Discrimination
Sex Discrimination
Alice M. Corvino Sex Discrimination
SPP rr rr
April 28, 1973
8. In or about February, 1974, the Defendants con-
ducted an administrative investigation into the basis of
the charges cited in Paragraph 7 above.
9. On February 25, 1974, the District Director for
the Pittsburgh Office of the Defendants requested, by
letter, that Horne’s provide Defendants with certain busi-
ness records, documents and detailed answers to inter-
rogatories pertaining to the operations of the Plaintiff’s
Horne’s division. Copies of two of the above charges, not
previously served upon Horne’s, were enclosed with the
letter and interrogatories. This letter, and the inter-
rogatories are annexed hereto and imade a part hereof as
EXHIBITS A and B, respectively.
10. Upon information and belief, on February 25,
1974, Defendants’ District Director mailed a copy of its
February 25th letter described above, together with the
aforesaid interrogatories and charges, to an attorney who
practices law in the City of Pittsburgh, Commonwealth
of Pennsylvania.
11. Upon information and oelief, the aforesaid at-
torney represents only one of the charging parties here-
in. He also represents other persons and associations in
the Pittsburgh area, including labor unions. These unions
negotiate contracts with Horne’s and other employers,
of which some of the latter are competitors of Horne’s.
12. In March, 1974, the Plaintiff, in response to De-
fendants’ request for cooperation in the investigation of
the above-mentioned charges, offered to provide Defend-
ants with witnesses who had first-hand knowledge of the
9
facts. However, Defendants refused to interview these
witnesses until the material described in Paragraph 9
above was supplied.
13. By letter dated April 10, 1974, the Defendants’
District Director again requested Plaintiff to provide
information and records substantially similar to what was
requested in Paragraph 9 above. A copy of this request
is annexed hereto and made a part hereof as EXHIBIT
C.
14, By letter dated April 18, 1974, Plaintiff’s attorney
requested Defendants to give written assurances that the
information and records sought by the Defendants would
not be disclosed to the charging parties, their attorneys
or other persons. In addition, Plaintiff’s attorney sought
to elicit from Defendants information as to specific safe-
guards which would be provided to prevent the charging
parties, their counsel or witnesses, who might be given
access to records and information concerning Plaintiff’s
business, from disclosing this information to others. A
copy of this letter is annexed hereto and made a part
hereof as EXHIBIT D.
15. By letter dated May 8, 1974, the Defendants ad-
vised Plaintiff that they could not make any assurances
of non-disclosure, that charging parties and their coun-
sel would be permitted access to the Defendants’ investi-
gative files, containing the records, documents, answers
to interrogatories supplied by the Plaintiff, and other
information obtained during the investigation, and that
the Defendants had no way of preventing the disclosure
of this information from being transmitted by charging
parties to others. A copy of this letter is annexed hereto
and made a part hereof as EXHIBIT E.
16. On May 16, 1974, Plaintiff’s counsel advised the
E.E.0.C. District Director that Plaintiff would not dis-
close the information requested absent written assurances
that said information would not be revealed to the charg-
ing parties, their counsel, or witnesses, and absent safe-
guards by Defendants to prevent the disclosure of the
information by such individuals to others. Plaintiff’s
counsel observed that the Defendants had already unlaw-
fully disclosed official information to Pittsburgh counsel.
A copy of this letter is annexed hereto and made a part
hereof as Exhibit F.
10
17. On May 20, 1974, Plaintiff further inquired of
Defendants’ General Counsel as to Defendants’ policy con-
cerning disclosure of E.E.0.C. case files to charging par-
ties, their attorneys or other persons. A copy of this
letter is annexed hereto and made a part hereof as EX-
HIBIT G.
18. By letter dated July 12, 1974, the Defendants’
Associate General Counsel replied to Plaintiff’s inquiry,
stating that “the present E.E.O.C. policy is to disclose, to
charging parties and their attorneys, case files . . which
are relevant to the charging party’s case... .” Defend-
ants’ Associate General Counsel further asserted that a
charging party or his attorney may also be granted ac-
cess to “related case files” which included all cases aris-
ing from similar allegations of discrimination against the
same respondent. A copy of this letter is annexed here-
to and made a part hereof as EXHIBIT H.
19. On October 22, 1974, the Defendants’ Pittsburgh
District Director served upon Plaintiff a subpoena duces
tecum, requiring the production of substantially the same
records and information as requested in the aforesaid
letter of April 10, 1974 in Paragraph 13, above. A
copy of this subpoena is annexed hereto and made a part
hereof as Exhibit I.
20. On October 23, 1974, the Plaintiff duly petitioned
the Defendants to revoke the subpoena issued by its
District Director, in accordance with Defendants’ regu-
lations, a copy of which is annexed hereto and made a
part hereof as EXHIBIT J.
21. In a Determination dated May 9, 1975, Defend-
ants denied the Plaintiff’s petition to revoke the District
Director’s subpoena. This Determination was not re-
ceived by Plaintiff until June 4, 1975. A copy of the De-
termination is annexed hereto and made a part hereof as
EXHIBIT K.
22. At all times material herein, Plaintiff was willing
to make available the documents requested if Defendants
assured Plaintiff that it would treat them confidentially.
23. The above-stated policy and practice of Defend-
ants, pursuant to which they authorize, permit or suf-
fer disclosure of Plaintiff’s business records and docu-
11
ments, are in contravention of Acts of Congress, to wit,
Sections 706(b) and 709(e) of Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. § 2000e-5(b),
8(e), and the Trade Secrets Act, Title 18 U.S.C. § 1905.
AS AND FOR A SECOND SEPARATE
AND DISTINCT CAUSE OF ACTION
24. Plaintiff repeats and realleges each and every al-
legation contained in Paragraphs 1 through 23 of this
Complaint with the same force and effect as if fully set
forth herein.
25. Upon information and belief, Section 1601.20 of
the Defendants’ regulations, 29 C.F.R. § 1601.20, provides:
“Neither a charge, nor information obtained pur-
suant to section 709(a) of Title VII, nor information
obtained from records required to be kept or reports
required to be filed pursuant to sections 709(c) and
(d) of said Title, shall be made matters of public in-
formation by the Commission prior to the institution
under this title of a court proceeding involving such
charge or information. This provision does not ap-
ply to such earlier disclosures to the charging party,
the respondent, witnesses, and representatives of in-
terested Federal, State and local agencies as may
be appropriate or necessary to the carrying out of
the Commission’s functions under the title, nor to
the publication of date derived from such informa-
tion in a form which does not reveal the identity
of the charging party, respondent, or person supply-
ing the information. (As revised October 27, 1971.)”
26. (a) Upon information and belief, on or about
February 20, 1975, Defendants adopted and promulgated
revised regulations pursuant to § 713(a) of Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C.
§ 2000e-12(a) (1972), and the 1974 amendments to the
F.0.1.A., contained in 29 C.F.R. §$ 1610.1, et seg., which
provide, in part:
“Special disclosure rules apply to the case files for
charging parties, aggrieved persons on whose be-
12
half a charge has bee filed, and entities against whom
charges have been filed. The special disclosure rules
are available in the public reading areas of the Com-
mission. Under sections 706 and 709 [of Title VII]
ease files involved in the administrative process of
the Commission are not available to the public.” 29
C.F.R. § 1610.17(d) (40 Fed. Reg. 8171, 8174).
(b) The said “special disclosure rules” were first
adopted by the Defendants on May 21, 1975, and are
included as Section 83 of the E.E.0.C. Compliance Man-
ual. A copy of such rules are annexed hereto and made a
part hereof as EXHIBIT L.
27. The above-quoted regulations of the Defendants,
and the “special disclosure rules” contained in Section 83
of Defendants’ Compliance Manual confer a_ substan-
tive benefit upon private parties in agency proceedings
and therefore constitute substantive agency rules.
28. Defendants are prohibited from issuing substan-
tive rules pursuant to § 718(a) of Title VII, 42 U.S.C.
§ 2000e-12(a), as amended.
29. The above-quoted regulations and said “special
disclosure rules” have been issued in excess of the De-
fendants’ statutory authority.
30. The above-quoted regulations and said “special
disclosure rules” void or invalid, and not binding upon
Plaintiff, since they have been issued in excess of Defend-
ants’ statutory authority.
AS AND FOR A THIRD CAUSE OF ACTION
31. Plaintiff repeats and realleges each and every
allegation contained in paragraphs 1 through 27 of this
Complaint with the same force and effect as it fully set
forth herein.
32. The Defendants’ regulations respecting disclosure
to charging parties, their attorneys, and others, are in-
corporated in the above-described “special disclosure
rules.”
33. These “special disclosure rules” were not adopted
pursuant to the notice requirements and rule-making pro-
cedures prescribed by 5 U.S.C. §§ 551(5) and 553.
13
34. The said “special disclosure rules” are invalid, of
no effect, and not binding upon the Plaintiff, since they
have not been adopted or promulgated to law, as required
by 5 U.S.C. § 553.
35. The refusal of Defendants to assure confidential
treatment of the subpoenaed information, and its author-
ization of disclosure to charging parties and others, in
the absence of valid rules protecting the interest of pro-
viders of information, constitute an unlawful abuse of
agency discretion and are arbitrary and capricious.
AS AND FOR A FOURTH SEPARATE
AND DISTINCT CAUSE OF ACTION
36. Plaintiff repeats and realleges each and every al-
legation contained in Paragraphs 1 through 26 of this
Complaint, with the same force and effect as if fully set
forth herein.
37. The refusal of Defendants to assure the confiden-
tial treatment of the subpoenaed records and information
described above, and its authorization of disclosure for
said documents, constitute an unlawful abuse of agency
discretion which is arbitrary and capricious, since said
information, is exempt from disclosure under the Free-
dom of Information Act, 5 U.S.C. § 552(b) (3), as “mat-
ters that are... specifically exempted from disclosure by
statute.”
AS AND FOR A FIFTH SEPARATE
AND DISTINCT CAUSE OF ACTION
38. Plaintiff repeats and realleges each and every al-
legation contained in Paragraphs 1 through 26 of this
Complaint, as if fully set forth herein.
39. The refusal of Defendants to assure the confiden-
tial treatment of the subpoenaed records and information
described above, and its authorization and disclosure for
said documents, constitute an unlawful abuse of agency
discretion which is arbitrary and capricious, since said
information is exempt from disclosure under the Free
14
dom of Information Act, 5 U.S.C. § 552(b) (4), as “trade
secrets and commercial or financial information obtained
from a person and privileged or confidential.”
AS AND FOR A SIXTH SEPARATE AND
DISTINCT CAUSE OF ACTION
40. Plaintiff repeats and realleges each and every al-
legation contained in Paragraphs 1 through 26 of this
Complaint, as if fully set forth herein.
41. The information sought by Defendants, as de-
scribed in Paragraphs 9, 13 and 19 above, contains per-
sonnel and similar files, the disclosure of which would
constitute a clearly unwarranted invasion of personal
privacy.
42. The refusal of Defendants to assure the confiden-
tiality of the subpoenaed records and information de-
scribed above, and its authorization of disclosure for said
documents, constitute an unlawful abuse of agency dis-
cretion which is arbitrary and capricious, since said
information is exempted from disclosure under the Free-
dom of Information Act, 5 U.S.C. § 552(b) (6), which
exempts “personnel and medical files and similar files the
disclosure of which would constitute a clearly unwar-
ranted invasion of personal privacy.”
AS AND FOR A SEVENTH SEPARATE AND
DISTINCT CAUSE OF ACTION
43. Plaintiff repeats and realleges each and every al-
legation contained in Paragraphs 1 through 26 of this
Complaint as if fully set forth herein.
44. The refusal of Defendants to assure the confiden-
tiality of the subpoenaed records and information de-
scribed above and its authorization of disclosure for said
documents, constitute an unlawful abuse of agency dis-
cretion which is arbitrary and capricious, since said
information is exempted from disclosure under the Free-
dom of Information Act, 5 U.S.C. § 552(b) (7), which
exempts “investigatory records compiled for law enforce-
ment purposes. . .” as therein provided.
15
ALLEGATIONS AS TO ALL CAUSES
JOINTLY AND SEVERALLY
45. Unless and until such time as Defendants assure
Plaintiff that such records and information as Plaintiff
provides will not be disclosed to charging parties, their
attorneys and others, Plaintiff is unable to cooperate in
the Defendants’ investigation without seriously and ir-
reparably prejudicing its position. Defendants’ failure
and refusal to grant confidentiality increases the likeli-
hood of unnecessary litigation, attended by massive
publicity adverse to Plaintiff’s reputation, good will and
competitive position.
46. In the event Plaintiff did provide the information
subpoenaed by the Defendants and, consistent with the
Defendants’ stated intention, the information and records
are revealed, the public will be given access to highly
confidential business information and personal data which
could be utilized by competitors, labor unions, employees
and other persons to seriously and irreparably damage
Plaintiff’s business, and the lives, reputations and privacy
of Plaintiff’s employees and other persons.
47. The Plaintiff has suffered, and will continue to
suffer damages to its business in an amount in excess of
$10,000.00 unless Defendants are restrained from dis-
closing records obtained from the Plaintiff to the charging
parties, their attorneys or other members of the public.
48. The Plaintiff, its employees and other persons will
suffer irreparable injury for which there is no adequate
remedy at law should Defendants be permitted to dis-
close the subpoenaed records and information. Once
such documents are disclosed, the information so released
can never be recouped by the Plaintiff, and its confiden-
tial nature cannot be restored.
49. Disclosure will adversely affect the good will and
reputation of the Plaintiff, seriously damage its com-
petitive position, jeopardize the security and safety of its
operations, threaten its labor stability and expose Plain-
tiff to unwarranted litigation and adverse publicity.
WHEREFORE, Plaintiff prays that this Honor-
able Court:
16
1. Order, adjudge and decree that the disclosure rules
and policies promulgated by Defendants specifically 29
C.F.R. §§ 1601.20, 1601.17{d) and Section 83 of its Com-
pliance Manual, are null and void, or invalid as applied
to the Plaintiff; and that disclosure by Defendant of the
subpoenaed records and information, absent assurances
of complete confidentiality, constitute an impermissible
exercise of Defendants’ authority and an unlawful abuse
of agency discretion.
2. Permanently enjoin and restrain Defendants, their
officers, agents, servants and employees, and all persons
acting in concert or cooperation with them, from disclos-
ing to any person or member of the public, including
charging parties and their attorneys, any of the records
or information provided to them pursuant to Defendants’
investigation of the charges described above.
3. Grant Plaintiff reasonable attorney fees and litiga-
tion costs incurred in this action, and such other and
further relief as appears to this Court to be just and
proper.
. Respectfully submitted,
JACKSON, LEWIS, SCHNITZLER & KRUPMAN
261 Madison Avenue
New York, N. Y. 10016
(212) 697-8200
By: /s/ Robert Lewis
ROBERT LEWIS
ROGER 8S. KAPLAN
HUNTON & WILLIAMS
700 East Main Street
P. O. Box 1535
Richmond, Virginia 23212
(804) 649-3661
By: /s/ Eppa Hunton IV
EPPA HUNTON IV
FRANCIS V. LOWDEN, JR.
HILL B. WELLFORD, JR.
Attorneys for Plaintiff
Dated: July 28, 1976.
17
EXHIBIT “A”
[ Seal]
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION
Pittsburgh District Office
1000 Liberty Avenue
Room 2038A
Pittsburgh, Pennsylvania 15222
February 25, 1974
In reply refer to:
Charge Numbers
TP12-0454
TP13-0836
TP13-0774
TP12-0324
TP12-0323
TP12-0484
TP12-0562
Personnel Manager
Joseph Horne Company
501 Penn Avenue
Pittsburgh, PA 15222
Dear Sir:
Upon completion of an inventory of charges of dis-
crimination against the Joseph Horne Company, we found
that the above-referenced charges remained outstanding.
As you know, the Commission is authorized to conduct
comprehensive investigations of the above-referenced
charges under the provisions of Title VII of the Civil
Rights Act of 1964. Accordingly, in order that the Com-
mission may determine all relevant facts we are request-
ing that you forward us copies of required records and
documents and detailed answers to questions contained
in the enclosed interrogatory.
18
Also, enclosed herewith are copies of charges not pre-
viously served to the Joseph Horne Company. Upon re-
ceipt of the enclosed you are required to sign the original
Receipt for Service and return them to this office in the
enclosed self-addressed envelope.
In addition to the information and documents required
by the interrogatory, you may, should you wish, submit
written statements of your position and evidence you
deem relevant to a determination of the charge.
Upon receipt of your reply to the interrogatory, we will
review the materials and ascertain whether additional in-
formation is needed. In which event, we will contact you.
Your response to the enclosed interrogatory, along with
the requested records and statements, are to be received
in this office within 14 days from receipt of this letter.
We look forward to your prompt response and full co-
operation. Should you have any questions, please contact
me at 644-3444.
Sincerely,
/s/ Rita M. Smith
RITA M. SMITH
Equal Opportunity Specialist
ec: Louis B. Kushner
Rothman, Gordon, Foreman and Groudine
300 Grant Building
Pittsburgh, Pennsylvania 15219
10.
19
EXHIBIT “‘B”
INTERROGATORY
Promotional roster for Protection Department in-
cluding clericals, since 1970 to present. Indicate
employee’s name, race, sex, job promoted from and
salary; job promoted to, salary and date. (Also in-
dicate store each employee is assigned).
Employment applications of persons having been
hired into the Protection Department since 1969.
Submsit employment applications of persons applying
for security positions and who have not been em-
ployed.
Attach an employee roster of entire Protection De-
partment since 1969 to present. Include the em-
ployee’s name, race, sex, date employed, present
salary, present job title, and store assigned.
Describe training programs for security force in de-
tail and indicate by name which employees were
trained under what training program.
Submit copies of all employee injury reports for year
1969. Indicate the name, race, sex, and job title for
each. Also, describe compensation, benefits and serv-
ices afforded each person; salaries paid each em-
ployee before injury and salary paid each employee
following his or her injury.
Describe in detail the procedure in apprehending a
theft suspect and submit evidence of each appre-
hension having occurred for years 1971 and 1972.
Submit appraisal ratings for store detectives for the
year 1971.
Describe and/or submit Respondent’s wage policy for
protective personnel.
Describe and submit records, giving indications of
qualifications for each job title in the Protection De-
partment.
11.
12.
13.
14,
15.
16.
17.
18.
19.
20
Attach employee records for the following persons:
Katherine Murray
Marsue Dingley
Alice Corvino
Herman Hartman
Ken McCarty
George Fields
Submit a listing of disciplinary actions having been
taken against employees in the Protection Depart-
ment since 1971 until present. Include the em-
ployee’s name, the action and dates involved, and
reason for taking such action.
Include personnel records of supervisory personnel
in the Protection Department including employment
applications, qualifications for assuming the position
and pay records for first six months while occupying
a supervisory position.
List the number of stores Respondent has in West-
ern Pennsylvania.
Attach an employee roster for each store having a
tea room and food services for each store—indicate
store location, employee’s name, race, sex, date of
hire, present job title, present salary, and indicate
whether employee is full time or part time.
Submit job descriptions for supervisory personnel,
salad personnel, relief personnel and qualifications
for each.
Attach a promotional roster for all food service per-
sonnel—include employee’s name, race, sex, job pro-
moted from and salary, and job promoted to, salary
and date.
Include applications for employment of all food serv-
ice personnel employed during the year 1970.
List all food service personnel terminated since 1969
to the present, include employee’s name, race, sex,
date of hire, job title, date terminated and reason
for termination.
20.
21.
22.
23.
24.
21
Submit a separate roster for each store of supervi-
sory personnel, assistant supervisory personnel, and/
or department heads—employee’s name, race, sex,
date of hire, position title, department assigned,
salary, date assumed position, and number of em-
ployees under, include their race and sex.
Attach copies of personnel and/or employment
records for Charging Party Katherine Murray.
Promotional roster of all stores since January 1970
to December 1973 of sales personnel, section man-
agers, staff assistants and/or assistant buyers and
buyers. Include the employee’s name, race, sex, job
promoted from, salary department and store; job
promoted to, salary, department and store, salary
and date.
Roster of trainees in the Executive Training Pro-
gram and—those in the Junior Executive Training
Program. Roster to include—employee’s name, race,
sex, dates in program, indicating which program;
salary paid while in the program, and job title upon
completion of the program, department, store as-
signed and salary after completion of the program.
Listing of persons transferred in 1972 showing em-
ployee’s name, sex, race, store transferred from, job
title and salary; store transferred to, job title, salary
and date transferred.
—_
22
EXHIBIT “C”
[SEAL]
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION
Pittsburgh District Office
1000 Liberty Avenue
Room 2038
Pittsburgh, Pennsylvania 15222
April 10, 1974
In reply refer to:
Charge Nos. TP12-0454
TP13-0774
TP12-0484
TP12-0562
Mr. Robert Lewis TP12-0323
261 Madison Avenue TP12-0324
New York, New York 10016 TP13-0836
Dear Mr. Lewis:
We are currently attempting to conduct a thorough inves-
tigation of the above referenced charges. In the conduct
of any investigation of alleged discrimination we must
obtain relevant information of a comparative nature and
verification of specific items. Obviously we must review
records pertaining to the Charging Party and other simi-
larly situated individuals in order to make a comparison
of treatment. The records we review need to cover a
certain time span within which the alleged discrimina-
tion occurred. This time span must be sufficiently broad
to enable us to make appropriate comparisons.
Again we ask you to make available to our investigators
the records that will allow us to make the proper de-
terminations of the charges.
The following is a list of records we need to review to
make a determination of the charges:
23
TP12-0454—Murray—promotions, wages
ae
Employment application of Charging Party Mur-
ray and others employed as food service employ-
ees at the downtown store for the periods 1970
and 1971.
Individual pay period payroll records for above
persons for years 1970 and 1971.
Personnel action records indicating promotions,
dismissals and terminations for the above.
TP13-0774—-Carwno—promotions, wages
1.
Employment applications of staff assistants and
assistant buyers employed at the downtown store
for 1972 and 1973.
Individual payroll records, by pay periods, for
above persons.
Employment application for Ken McCarty; his
pay records for year 1972. This employee may
have been employed at the South Hill store.
Employment application for George Fields; per-
sonnel action records indicating any promotions
and his pay records for years 1971 and 1972
and 1978.
Appraisal ratings records for all staff assistants
and assistant buyers at all stores for 1970, 1971
and 1973.
If salary increases are not indicated on the above,
item #5, please include payroll records for the
above.
TP12-0484—Kritko
1.
2.
On-the-job injury report records during the year
1972.
Records indicating employer compensation for the
above.
24
TP12-0562—-Denk
1. Job description for clerical personnel in the Pro-
tection Office.
2.
3.
4,
5.
Qualifications for store detectives.
Copy of training requisites for store detective.
Copies of personnel actions indicating promotions
for clerical personnel in the Protection Office for
1971, 1972 and 1973.
Employee applications for Marlene Denk and
those above.
TP12-0323—Pollock
Already covered in records requested for others.
TP12-0324—Blake
i
Personnel actions indicating persons terminated
from Protection Department since 1971 to pres-
ent; if the reason for termination is not indi-
cated on this record, please provide record that
does so indicate.
Copies of arrest records made in 1971 and 1972
by Protection Department personnel that indicate
the arresting personnel and the disposition of the
arrest.
TP13-0836—Dingley
i.
Employment applications of supervisory person-
nel in the Security Department of the main store
(1971, 1972 and 1973).
Personnel action records showing promotions for
the above (1971, 1972 and 1973).
Records of disciplinary action taken against all
employees in 1973.
Job descriptions for store detectives of that above
the classification of store detective.
25
5. Employment applications for persons of above,
and personnel actions indicating dates these per-
sons occupied the above positions and their
salaries (1971, 1972 and 1978).
6. Pay records for store detectives, persons directly
above the classification of store detectives and
those of supervisory personnel.
Please notify us promptly of your decision regarding this
request. If we are not permitted access to the informa-
tion, we will have no other choice but to issue a subpoena,
forthwith.
Thank you for your cooperation in this matter.
Yours truly,
/s/ Eugene V. Nelson
EUGENE V. NELSON
District Director
26
EXHIBIT “D”
April 18, 1974
Mr. Eugene V. Nelson
District Director
Equal Employment Opportunity Commission
Pittsburgh District Office
1000 Liberty Avenue
Room 2038
Pittsburgh, Pa. 15222
Re: Charge Nos. TP12-0454 TP12-0323
TP13-0774 TP12-0324
TP12-0484 TP13-0836
TP12-0562
Dear Mr. Nelson:
This is in reply to your letter of April 10 addressed to
me as counsel for Joseph Horne Co.
Prior to making relevant information available to you,
we would like written assurances that the information
contained in the records you seek will not be disclosed
to the charging parties, their counsel, or persons whom
you interview during your investigation. Moreover, in
the event you are unable to give us satisfactory assur-
ances, we would like to be advised concerning the safe-
guards you provide which will preclude said persons from
in turn transmitting this information to others.
In this connection, we have repeatedly asked your in-
vestigator to identify Louis B. Kushner and the reason
why he was furnishing a copy of the Commission’s letter
dated February 25, 1974, and its enclosures, addressed
to the Personnel Manager of the Company.
Very truly yours,
JACKSON, LEWIS, SCHNITZLER
& KRUPMAN
RL/mtd Robert Lewis
27
EXHIBIT “E”’
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION
Pittsburgh District Office
1000 Liberty Avenue
Room 2038
Pittsburgh, Pennsylvania 15222
May 3, 1974
In reply refer to:
Charge Nos. TP12-0454
TP13-0774
TP12-0484
TP12-0562
TP12-0323
TP12-0324
TP13-0836
Robert Lewis, Esquire
261 Madison Avenue
New York, New York 10016
Dear Mr. Lewis:
This is in reply to your letter of April 18, 1974 regarding
relevant information we need to conduct a thorough in-
vestigation of the above referenced charges.
You stated you would like to have written assurances
that the information contained in the records will not be
disclosed to Charging Parties, their counsel, or persons
we interview during the investigation.
Our procedure is to obtain all of the relevant facts re-
lated to the allegations. In analyzing and interpreting
the data we may find it necessary to discuss with the
Charging Party certain information for clarification. We
do not make a full disclosure of information in the rec-
ords. Should the Charging Parties and their counsel con-
template suit, they must be permitted access to the case
file which will contain the relevant records. Likewise,
28
Respondent attorneys have access to the file if suit is
contemplated. We have no way of preventing Charging
Parties from transmitting information they have. We
can only advise them not to do so. We try to make all of
our efforts in investigation and conciliation completely
confidential so that Charging Parties, Respondents and
our staff are the only people knowledgeable about the
case.
You also wanted to know about Louis B. Kushner who
received copy of correspondence sent to the Personnel
Manager of the company. Mr. Kushner is counsel for
two Charging Parties.
Through our error a carbon copy of the letter was sent to
Mr. Kushner. However, this error did not result in the
disclosure of any information in the company’s records.
Please be assured that the information we request will be
used to make an accurate determination of the charges
under investigation.
Yours truly,
/s/ Eugene V. Nelson
EUGENE V. NELSON
District Director
29
EXHIBIT “F”
May 16, 1974
Mr. Eugene V. Nelson
District Director
Equal Employment Opportunity Commission
Pittsburgh District Office
1000 Liberty Avenue
Room 2038
Pittsburgh, Pennsylvania 15222
Re: Joseph Horne Company
Charge Nos. TP12-0454
TP13-0774 TP12-0323
TP12-0484 TP12-0324
TP12-0562 TP13-0836
Dear Mr. Nelson:
This is in response to your letters of April 10 and
May 3, which have been given our most serious considera-
tion.
In my letter of April 18, 1974, I asked for “written
assurances that the information contained in the records
you seek will not be disclosed to the charging parties,
their counsel, or persons whom you interview during your
investigation.”
In your reply of May 3, 1974, you fail to provide these
assurances. On the contrary, your Rules and Regulations
(See. 1601.20) expressly permit such disclosures during
the investigation. This section states in part, “This
provision (prohibiting disclosure by the Commission prior
to the institution of Court proceedings) does not apply
to such earlier disclosures as the charging party (or)
witnesses... .” It is precisely such “early disclosure”
during the current investigation that is our concern at
this juncture.
In my letter, I also inquired concerning safeguards
the Commission provides to preclude the charging party,
their counsel, and persons interviewed, in the event of
disclosure to them, from transmitting this information
to others. You replied that the Commission had no way
to prevent the transmitting of this information.
30
Under these circumstances, we are not furnishing the
materials you requested. Our client is apprehensive that
to provide this information could allow third parties,
such as competitors and labor unions, to use it to its
detriment, or subject it to potential lawsuits by other
third parties. Furthermore, public disclosure of security
apprehensions by protection department personnel might
subject our client to further lawsuits and possible crimi-
nal prosecution.
That the disclosure of confidential information by your
Agency is not speculative is evidenced by our experience
in this case to date. In your letter of May 3, you ac-
knowledge that your office erroneously transmitted to
Louis B. Kushner, a copy of your letter dated February
25, 1974, addressed to our client. The February 25th
letter related to the completion by the Commission of an
“inventory of charges of discrimination against the
Joseph Horne Company.” Enclosed with the letter was a
set of 24 interrogatories and copies of two charges. You
acknowledge that Mr. Kushner should not have received
this information. We agree, but are alarmed at this
disclosure. To make public the nature and scope of the
Commission’s investigation and the identity of charging
parties is a serious statutory violation.
If, notwithstanding the above infraction, you can now
assure us in writing that information which we may sup-
ply will be treated confidentially and not disclosed to
witnesses you interview, charging parties, or their coun-
sel, we will provide you with that which is deemed rele-
vant.
We appreciate your need to inquire into such matters
and have cooperated with your office in the investigations
of these and other charges, and will continue to do so.
If we can be of further assistance, please contact me.
Very truly yours,
JACKSON, LEWIS, SCHNITZLER
& KRUPMAN
RL: YM Robert Lewis
31
EXHIBIT “G”
May 20, 1974
William A. Carrey, Esq.
General Counsel
Equal Employment Opportunity Commission
1800 G Street N.W.
Washington, D.C. 20506
Dear Sir:
Would you please inform me whether the Opinions of
General Counsel and attached Commission memorandum
are presently in effect. In the event they are not, would
you please advise me whether they have been replaced by
opinion or memorandum of similar import.
In the event the Commission memorandum dated Sep-
tember 15, 1970 is still in effect, would you please send me
the full text of this memorandum. In the event that it
has been replaced, would you please send me the full text
of any current General Counsel Opinion or memorandum
covering this subject.
Very truly yours,
JACKSON, LEWIS, SCHNITZLER
& KRUPMAN
Robert Lewis
RL: AIW
Enclosure
32
Opinion of General Counsel, September 13, 1965
“If an attorney appears on behalf of a complainant,
he is entitled to information as to the status of the charge
and, thereafter, to receipt of relevant correspondence or
other communications relating to his client. The prohibi-
tions against ‘public’ disclosure set forth in Sections
706(a) and 709(e) do not apply to a complainant’s at-
torney.”
Opinions of General Counsel, November 9, 1965 and
November 12, 1965
“The investigator’s report in a case may be examined
by counsel for the charging party after expiration of the
statutory period for investigation and conciliation to
determine whether or not, in counsel’s opinion, the facts
justify the commencement of a civil action pursuant to
section 706(e) and, if so, to obtain information relevant
to drafting the complaint. Before a report is made avail-
able, counsel must agree that it will not be used for any
other purpose and that the information contained therein
will not be disclosed except to the extent necessitated by
filing the complaint. After a civil action has been initi-
ated, the investigator’s report may be examined by coun-
sel for the respondent for the purpose of preparing a
defense. While copies of the inevstigator’s report will not
be furnished to counsel for the charging party and the
respondent, such reports may be examined at the offices
of the Commission. When access to an investigator’s
report is sought by counsel for the charging party or re-
spondent, a member of the staff of the General Counsel
or the Office of Compliance will first examine the report
and delete or withhold any information in the following
categories: (1) observations, remarks, or references
which are personal to the investigator and do not con-
stitute factual information developed during the investi-
gation; (2) the names of witnesses who have expressed
a desire to remain anonymous or have given information
on a confidential basis; (3) statements, occurrences, or
events which are essentially conciliatory in nature. In-
vestigators’ reports will be made available to counsel
33
under the foregoing conditions to the extent that limita-
tions of time and staff permit.”
Commission Memorandum Dated September 15, 1970
“The investigator’s report in a case may be examined
by counsel for the charging party after expiration of the
statutory period for investigation and conciliation (60
days from the date of filing with the Commission) to
determine whether or not, in counsel’s opinion, the facts
justify the commencement of a civil action pursuant to
Section 706(e) and, if so, to obtain information relevant
to drafting the complaint. Before a report is mede avail-
able, counsel must agree that it will not be used for any
other purpose and that the information contained therein
will not be disclosed except to the extent necessitated by
filing the complaint.”
34
EXHIBIT “H”’
[SEAL]
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION
Washington, D.C. 20506
July 12, 1974
Jackson, Lewis, Schnitzler & Krupman
Attorneys at Law
261 Madison Avenue
New York, New York 10016
Attention: Robert Lewis, Esquire
Dear Mr. Lewis,
I am in receipt of your May 20, 1974 letter in which
you requested information regarding the Commission’s
Interpretations and Opinions, specifically opinions re-
garding disclosure of EEOC case files to attorneys for
charging parties. In December, 1970, the Commission
clarified certain misinterpretations about these opinions,
which opinions were discontinued after July 1, 1966.
(See attached notice.) As the notice indicates those
opinions did not affect any persons other than the specific
addressee (s).
The present EEOC policy is to disclose, to charging
parties and their attorneys, case files, including EEO-1
reports, which are relevant to the charging party’s case
and which are to be used in connection with contemplated
or pending litigation.
In addition, a charging party or his attorney may be
granted access to related case files involving a respond-
ent against whom the charging party is contemplating
litigation or has litigation pending. Such related case
files should include only those files involving charges
against the same respondent where the charge involves
a charge of discrimination on the same base or bases as
alleged by the charging party requesting access to the
files. In other words, charges alleging completely dif-
35
ferent. bases from that alleged by the requesting charging
party are not related, and the files in those cases should
not be disclosed to the charging party or CP’s attorney.
If I can be of further help in this matter, please contact
me immediately.
Sincerely,
WILLIAM A. CAREY
General Counsel
/s/ Issie L. Jenkins
ISSIE L. JENKINS
Associate General Counsel
Legal Counsel Division
36
FEDERAL REGISTER
Volume 35, DECEMBER 9, 1970
Page 18692
Notices
EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION
INTERPRETATIONS AND OPINIONS OF THE COMMISSION
The Equal Employment Opportunity Commission
(hereinafter referred to as the Commission), in order
to dispel an apparent misunderstanding, on the part of
a number of respondents, with respect to the materials
constituting a “written interpretation or opinion of the
Commission” within the meaning of section 713(b) of
the Civil Rights Act of 1964, 42 U.S.C. section 2000e-12
(b), invites specific attention to the provisions of § 1601.
30 of the Commission’s Procedural Regulations, 29 CFR
1601.30. The provision referrred to has, since July 1,
1965, specifically restricted the meaning of the phrase
“written interpretation or opinion of the Commission”
to correspondence entitled “opinion letter” and signed by
the General Counsel on behalf of the Commission (29
CFR 1601.30(a)). Matter issued pursuant to 29 CFR
1601.30(a) is issued to a specific addressee(s) and has
no effect upon situations other than that of the specific
addressee (s).
Accordingly, matter appearing in the Quarterly and
Annual Digests of Legal Interpretations, formerly issued
by the Office of the General Counsel and discontinued
subsequent to July 1, 1966, neither met nor were in-
tended to meet the standards required of a “written in-
terpretation or opinion of the Commission” within the
meaning of the Commission’s procedural regulations, 29
CFR 1601.28-1601.30, or section 713(b), 42 U.S.C. sec-
tion 2000e-12(b). Similarly, matter appearing in the
commercial reporting services erroneously entitled, “opin-
ion letter” or “General Counsel Opinion” do not meet the
standard required of a “written interpretation or opin-
37
ion of the Commission” within the meaning of the Com-
mission’s procedural regulations, 29 CFR 1601.28-1601.
30, or section 713(b), 42 U.S.C. section 2000e-12 (b).
This notice shall be effective upon publication in the
FEDERAL REGISTER.
Signed at Washington, D.C., this lst day of December
1970.
WILLIAM H. BROWN III,
Chairman.
[F.R. Doc. 70-16503; Filed, Dec. 8, 1970; 8:46 a.m.]
38
EXHIBIT “T”’
UNITED STATES OF AMERICA
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
DISTRICT OFFICE
SUBPOENA AD TESTIFICANDUM/DUCES TECUM
No. PI-006
CHARGE NO. TPI2-0454 et al.,
see page 2
In the matter of Katherine Murray et. al., (see page 2)
vs. Joseph Horne Company.
To: James Downing, Personnel Director
(Name)
Joseph Horne Co., 4th Floor, 501 Penn Ave., Pittsburgh,
PA 15222
(Address)
Request therefore having been made by the undersigned
District Director YOU ARE HEREBY REQUIRED
AND DIRECTED TO APPEAR BEFORE Rita Smith,
Equal Employment Specialist of the Equal Employment
Opportunity Commission at 2038A Federal Building in
the City of Pittsburgh on October 30 at 10 o’clock a.m.
of that day, to [ ] Testify [xx] Produce and bring with
you at said time and place the following documents
The documents are described on the attached 4 pages,
on each of which the District Director’s signature ap-
pears.
Pursuant to Section 1601.15, EEOC Procedural Regula-
tions, 29 C.F.R. Section 1601.15, if the addressee intends
not to comply with this subpoena, he must, within 5 days
after the date of service (excluding Saturdays, Sundays
and legal holidays) petition by mail, the Director of
Compliance, 1800 G Street, N.W., Washington, D.C.
20506 (also serving a copy upon the District Director
named below) to revoke or modify the subpoena. The
39
District Director will grant no extensions of time except
in extraordinary circumstances. It is advisable that the
addressee include a Certificate of Service as to the date
on which the petition is mailed. The petition shall state
each ground upon which it relies.
DATE
October 18, 1974
DISTRICT/DEPUTY DIRECTOR (Typed name)
EUGENE V. NELSON
FOR THE COMMISSION (Signature)
/s/ Eugene V. Nelson
NOTICE TO WITNESS. Witness fees for attendance,
subsistence, and mileage under this subpoena, if any,
shall be paid by Commission where the witness submits
this subpoena with the voucher when claiming reimburse-
ment to said District Office.
40
Attachment to Subpoena No. PI-006, dated October 18,
1974 in the following charges:
TPI2-0454 Katherine Murray v. Hornes
TPI3-0774 Alice M. Corvino v. Hornes
TPI2-0562 Marlene Denk v. Hornes
TPI2-0324 Lois Blake v. Hornes
TPI2-0323 Helen O. Pollock v. Hornes
TPI2-0484 Mary Kritko v. Hornes
TPI3-0836 Marsue Dingley v. Hornes
1. TPI2-0454—Murray
) &
2.
Employment application of Charging Party
Katherine Murray.
Employment applications of all Food Service em-
ployees at downtown Pittsburgh store, 1970 and
1971, designated by race.
Individual pay period payroll records for
Katherine Murray and all other Food Service
employees at downtown stores, 1970 and 1971,
designated by race.
Personnel action records indicating promotions
and discharge for above persons.
2. TPI3-0774—Corvino
5.
Employment application of staff assistants,
buyers and assistant buyers employed at down-
town store, 1972 and 1973.
Individual payroll records, by pay periods, of
those employees described in Item No. 5 for the
years 1972 and 1973.
Employment application and 1972 pay records
for Mr. Ken McCarty, formerly a buyer in the
Luggage Department, South Hills Store.
Employment application of George Fields, down-
town store; personnel action records indicating
his promotions for the years 1971, 1972 and
1973.
Evaluation and ratings records for all staff as-
sistants and assistant buyers at all stores located
10.
11.
12.
41
in Allegheny County for the years 1970, 1971,
1972 and 1973.
Produce payroll records for the above employees
described in Item No. 5 for the years 1970 and
1971.
Produce roster of promotions for the positions of
staff assistants, assistant buyers and buyers at
the downtown store for the year 1972; designate
by name and sex.
Produce list of trainees in the Executive Train-
ing Program for the year 1973; designate by sex
and salary.
3. TPI2-0362—Denk
13.
14,
15.
16.
17.
Produce job description, if extant, for position/s
of clerical personnel in the Security Protection
Department.
Produce personnel manual and/or other written
documents indicating job qualifications for the
position of store detective.
Produce written training requisites for the posi-
tion of store detective, if extant.
Copies of personnel records indicating promo
tions of clerical personnel in the Security Protec-
tion Department, Downtown Store, for 1971,
1972 and 1973; identify by sex.
Employee applications for Marlene Denk and all
other clerical personnel in the Security Protec-
tion Department for 1971, 1972 and 1973.
TPI2-0324—Blake
18.
19.
Personnel action records indicating persons dis-
charged from the Security Protection Depart-
ment, Downtown Store, 1971 through 1973.
Copies of arrest records made in 1971 and 1972
by Security Protection Department personnel
that indicate the arresting personnel and the dis-
position of each arrest.
42
TPI2-0323—Pollock
TPI2-0484—Kritko
TPI2-0324—Blake
20.
Payroll records for all personnel in the Security
Protection Department, Downtown Store, for the
years 1971, 1972 and 1973.
TPI3-0836—Dingley
21.
22.
23.
24.
25.
Employment applications of supervisory person-
nel in the Security Protection Department of the
Downtown Store for the years 1971, 1972 and
1973.
Personnel action records showing promotions into
supervisory positions in the Security Protection
Department, Downtown Store, for the years
1971, 1972 and 1973.
Records of all disciplinary action taken against
all employees in the Security Protection Depart-
ment of the Downtown Store in the year 1973.
Job description for the position of store detec-
tive, supervisory and non-supervisory positions.
If the records do not exist in the form requested
in Items numbered two, three, eleven, twelve and
sixteen above, production of the relevant infor-
mation requested in such other form as most
substantially provides the Commission with the
requested information or, in the alternative, ac-
cess to any records of Respondent which contain
evidence described in the items enumerated above
but *. a form different from that specifically
deseribed in these items, will be accepted as
compliance.
FoR THE COMMISSION (Signature)
/s/ Eugene V. Nelson
DATE
October 18, 1974
DISTRICT DIRECTOR (Typed name)
EUGENE V. NELSON
43
EXHIBIT “J”’
# 452079
Certified Mail 452080
Return Receipt Requested
October 23, 1974
Director of Compliance
Equal Employment Opportunity Commission
1800 G Street, N. W.
Washington, D.C. 20506
Re: Katherine Murray et. al. and
Joseph Horne Company
Charge Nos. TPI 2-0454, TPI 3-0774,
TPI 2-0323, TPI 2-0562, TPI 2-0484,
TPI 2-0324, TPI 3-0836
Subpoena No. PI-006
Dear Sir:
Enclosed please find the original and one copy of the
Employer’s Petition To Revoke Subpoena issued by the
District Director of the Pittsburgh District Office on
October 18, 1974 and served upon the Employer on Oc-
tober 22, 1974 by mail. A copy of this Petition has been
mailed to Eugene V. Nelson, District Director of the
Pittsburgh District Office.
Very truly yours,
JACKSON, LEWIS, SCHNITZLER & KRUPMAN
ROBERT LEWIS
RL:YM
ENC.
CC: Eugene V. Nelson
44
UNITED STATES OF AMERICA
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION
Charge Nos. TPI 2-0454
TPI 83-0774
TPI 2-0562
TPI 2-0324
TPI 2-0323
TPI 2-0484
TPI 3-0836
IN THE MATTER OF:
KATHERINE MURRAY ET AL.,
CHARGING PARTIES
_—
JOSEPH HORNE COMPANY, EMPLOYER
To: Director of Compliance
1800 G Street, N. W.
Washington, D. C.
PETITION OF EMPLOYER
TO REVOKE SUBPOENA NO. PI-006
On October 22, 1974, the Employer was served with
Subpoena No. PI-006, a copy of which is attached hereto,
calling for the production of records and documents
under twenty-five (25) separate headings, such produc-
tion to occur in the office of Rita Smith, Equal Employ-
ment Specialist of the Pittsburgh District Office of the
Equal Employment Opportunity Commission at 2038A
Federal Building, Pittsburgh, Pennsylvania 15222 on
October 30, 1974 at 10:00 o’clock A.M. The Employer,
by its attorneys, hereby petitions the Director of Com-
pliance to revoke said subpoena.
45
This petition is based on the following grounds:
1. That the charges cited above, and the nature of in-
formation sought in investigation thereof, have been
made public by the Commission in violation of Section
706(b) and 709(e) of the Act, and Section 1601.20 of
the Commission’s Rules and Regulations, 29 C.F.R.
1601.20.
2. That to provide access to the documents requested
by said subpoena could permit third parties, such as
competitors and labor unions, to use same to the Em-
ployer’s detriment.
3. That to provide access to certain of the documents
requested by said subpoena could subject the Employer
to civil legal proceedings or criminal prosecution.
4. That evidence sought by the subpoena does not re-
late to any matter in question in this proceeding and is
not germane to any lawful subject of inquiry.
a. The instant subpoena would require the Employer
to provide for the Commission documentary evidence con-
cerning the race of its employees, although six of the
seven complaints herein allege discrimination as based
solely on sex.
b. The instant subpoena would require the Employer
to provide for the Commission documentary evidence
concerning the employees, and its personnel practices and
procedures, at all of its facilities, although the complaints
herein allege discrimination at only two such facilities.
ce. The instant subpoena would require the Employer
to provide for the Commission documentary evidence con-
cerning the procedure for promotion and the candidates
considered for numerous positions for which the charging
parties were not and could not have been considered,
because of factors wholly unrelated to their sex.
5. That the subpoena would require the Employer to
compile information and documentary material not now
extant and not normally required under traditional
standards of discovery.
6. That the evidence sought by the subpoena is not
described with sufficient particularlity.
46
7. That the documents called for by said subpoena
number in the hundreds and it would be oppressive and
unreasonable to require the Employer to produce said
documents.
8. That said subpoena calls for the production of rec-
ords relating to a time not pertinent, relevant or admis-
sible to any matter in question in this proceeding.
9. That witness or mileage fees have not yet been
tendered to the Employer as is required by law.
WHEREFORE, the Employer respectfully requests
that Subpoena PI-006, issued by the District Director of
the Pittsburgh District Office on October 18, 1974, be
revoked, vacated and set aside.
/s/ Robert Lewis
ROBERT LEWIS
JACKSON, LEWIS, SCHNITZLER & KRUPMAN
Attorneys for Employer
261 Madison Avenue
New York, New York 10016
Dated: New York, New York
October 23, 1974.
47
CERTIFICATE OF SERVICE
I certify that the foregoing Petition to Revoke Sub-
poena was duly served on Mr. Edward Pena, the Director
of Compliance, Equal Employment Opportunity Commis-
sion, on October 23, 1974, by depositing a copy of the
same in the United States Mail, securely sealed in an
envelope with postage fully prepaid, addressed to him at
the following address: 1800 G Street, N. W., Washing-
ton, D. C. 20506; and
I certify that the foregoing Petition to Revoke Sub-
poena was duly served on Eugene V. Nelson, District
Director, Equal Employment Opportunity Commission,
on October 23, 1974, by depositing a copy of the same
in the United States Mail, securely sealed in an envelope,
with postage fully prepaid, addressed to him at the fol-
lowing address:
Eugene V. Nelson
District Director
Pittsburgh District Office
Equal Employment Opportunity Commission
2038A Federal Building
Pittsburgh, Pennsylvania 15222
Dated: New York, New York
October 23, 1974
/8/ Peggy L. Braden
PEGGY L. BRADEN
48
EXHIBIT ‘“‘K”
[SEAL |
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION
Washington, D.C. 20506
IN THE MATTER OF:
Katherine Murray et al. Charge Nos. TPI 2-0454
Charging Parties TPI 3-0774
. TPI 2-0562
; TPI 2-0324
Joseph Horne Company TPI 2-0323
Respondent-Petitioner TPI 2-0484
Subpoena No. PI-006
Addressee: James Downing,
Personnel Director
DETERMINATION ON PETITION TO REVOKE
AND/OR MODIFY SUBPOENA
Respondent-Petitioner having been served with a sub-
poena duces tecum issued by the District Director pur-
suant to Section 710 of the Civil Rights Act, as amended,
has timely filed a petition to revoke or modify the sub-
poena. The requisite number of Commissioners having
reviewed the petition pursuant to Section 1601.15(b) of
the Commission’s Procedural Regulations, and having
decided that the petition is without merit, the Commis-
sion hereby denies the petition for the reasons stated be-
low.
Respondent-Petitioner raises several objections to the
subpoena based on its belief that the “the charges ... and
the nature of information sought in investigation thereof
. . . have been made public by the Commission in viola-
tion of Section 706(b) and 709(e) of the Act, and Section
1601.20 of the Commission’s Rules and Regulations... .”
However, the record indicates that no information re-
garding these charges has been transmitted to the public
49
in violation of the sections of the statute and the Com-
mission’s Procedural Regulations cited above. Respon-
dent-Petitioner is apparently referring to the fact that
certain information regarding one of the charges was
sent to that Charging Party’s attorney. However, under
no circumstances can a Charging Party or his or her
attorney be considered to come within the statute’s pro-
scription against making a charge public. The section of
the Procedural Regulations cited by Respondent-Petitioner
in support of its argument specifically excepts Charging
Parties from the confidentiality section of the statute.
The regulation provides in pertinent part:
Neither a charge, nor information obtained pursuant
to Section 709(a) of Title VII, shall be made mat-
ters of public information by the Commission prior
to the institution of any proceedings under this Title
involving such charge or information. This provision
does not apply to such earlier disclosures to the
charging party, the respondent, witnesses, and rep-
resentatives of interested Federal, State and local
agencies as may be appropriate or necessary to the
carrying out of the Commission’s functions under
the Title... 29 CFR 1601.20.
Because of the privilege existing between an attorney and
his or her client, we conclude that any disclosure to a
Charging Party’s attorney is also permissible.
As part of this same argument Respondent-Petitioner
also claims that by providing Charging Parties with ac-
cess to the documents requested by the subpoena, certain
third parties, such as competitors and labor unions, could
use the information obtained to Respondent-Petitioner’s
detriment or could involve Respondent-Petitioner in civil
or criminal legal proceedings. We do not see how provid-
ing certain information to a Charging Party and her at-
torney could lead to the result anticipated by Respondent
since by doing so the Commission is in no way making
any information public. Of course, if the Commission
reaches a determination as to reasonable cause on this
case and conciliation attempts fail, then either the Com-
50
mission or the Charging Parties may seek recourse in the
courts. But this possibility existed the moment the
Charging Parties filed their charges and Respondent may
not request revocation of this subpoena on the ground
that information requested by it may ultimately require
Respondent to defend its employment practices in court.
We conclude that Respondent-Petitioner’s arguments con-
cerning disclosure was without merit.
Respondent-Petitioner’s second major contention is that
the “evidence sought by the subpoena does not relate to
any matter in question in this proceeding and is not
germane to any lawful subject of inquiry.” More spe-
cifically Respondent-Petitioner objects to the fact that the
subpoen.. requires it to provide evidence concerning the
race of its employees although only one of the seven
Charging Parties alleges that she was discriminated
against because of her race. We find this argument to be
unpersuasive. While six of the seven complaints allege
discrimination on the basis of sex, one does allege dis-
crimination on the basis of race. All of the charges, in-
cluding the one involving race discrimination, are broad-
based class charges and therefore necessarily call for an
investigation that goes beyond the employment record of
the individual Charging Party. In connection with the
race discrimination charge, the subpoena merely seeks
information concerning persons similarly situated to
Charging Party, that is, information concerning other
employees in the Charging Party’s department at the
store in which she worked. The employees are to be
designated by race only. Obviously the Commission’s in-
vestigator is seeking comparative information relating to
Respondent’s treatment of Blacks generally and Charging
Party in particular as compared to treatment of simi-
larly situated white employees in the same department.
It is well settled that comparative data of this kind is
probative of issues raised in employment discrimination
eases. McDonnell-Douglas Corp v. Green, 411 U.S. 792
(1973) ; Georgia Power Co. v. EEOC, 412 F.2d 421 (5th
Cir. 1969); EEOC v. University of New Mexico,
F. Supp. ——, 7 EPD para. 9118 (D. N.M. 1973).
51
Continuing with this same line of argument, Respondent-
Petitioner also claims that it would have to provide in-
formation concerning all of its facilities although the
charges allege discrimination at only two such facilities.
While one item in the subpoena does request certain per-
sonnel records from each of Respondent’s Alleghany
County stores, all the other items seek information re-
garding employees and employment practices at Respon-
dent’s downtown store only. The single item in question
seeks information pertaining to a Charging Party who
was employed in several of Respondent-Petitioner’s stores.
Her charge alleges that she was not promoted because
of her sex. She was employed as a staff assistant and,
apparently, the next position in her line of progression
is that of assistant buyer and then buyer. Because there
are only a few assistant buyers and buyers in any given
store, the need to obtain a sufficient sample on which to
base a comparative study requires that information re-
garding these positions be obtained from more than one
or two facilities. Thus we are not persuaded that modi-
fication of this part of the subpoena is called for.
Related also to the claim that the evidence sought by
the subpoena is not “germane” to the charges is Respon-
dent-Petitioner’s contention that the information re-
quested concerns procedures for promotions and candi-
dates considered for numerous positions for which the
Charging Parties were not and could not have been con-
sidered, because of factors wholly unrelated to their sex.
We do not agree. Most of the Charging Parties were or
are in Respondent-Petitioner’s Security Department.
With respect to those Charging Parties the subpoena
requests job descriptions of various Security Department
positions, personnel actions on employees in the Depart-
ment, including promotions and discharges, and the like.
Because Charging Parties allege that they have been
denied promotions in this Department because of their
sex, this kind of evidence is highly relevant. It may be
that one or more of the Charging Parties did not possess
the qualifications for promotion, but that fact cannot be
established without evidence showing what qualifications
were necessary for the position or promotion in question
and whether Charging Parties were not as well qualified
52
as those individuals who did receive promotions. Re-
spondent-Petitioner’s bald assertion that they were not
qualified will not suffice. Furthermore, it is not for
Respondent to determine what documents may or may
not be relevant to an investigation of a charge of employ-
ment discrimination against it. EEOC v. University of
New Mexico, 7 EPD para. 9118 (D. N.M. 1973).
Respondent-Petitioner also claims that the subpoena would
require it to compile information and documentary ma-
terial not now extant and not formally required under
traditional standards of discovery. If the information
requested does not exist in any form then obviously
Respondent-Petitioner cannot be required to produce it.
However, we do not believe that is the situation in this
case. Rather, Respondent-Petitioner appears to be claim-
ing that it cannot be required to compile the information
requested into list form from a variety of different
sources. However, the subpoena does not require Respond-
ent-Petitioner to undertake any such effort. Most of the
items in the subpoena seek employment applications,
evaluations, payroll records, job descriptions, personnel
manuals and the like—discrete documents which exist in
the form requested and which require nothing more than
that they be turned over in that form to the Commission’s
representative. To the extent that certain of the docu-
ments or records requested may not exist in the form
described in the subpoena, Item 25 specifically permits
Respondent-Petitioner to produce the relevant informa-
tion “in such other form as most substantially provides
the Commission with the requested information.” In the
alternative, Item 25 provides that “access to any records
of Respondent which contain evidence described in the
items enumerated above . . . will be accepted as com-
pliance.” Accordingly, we conclude that Respondent-
Petitioner’s argument is without merit.
Respondent-Petitioner contends that “the evidence sought
by the subpoena is not described with sufficient particu-
larity.” We disagree. All that is required is that the
documents be specified to the extent necessary for Re-
spondent to be able to identify and produce the requested
information. In this case we do not believe that there is
53
any question as to what information is needed. The
suBpoena seeks certain personnel and payroll records of
the Charging Parties, other named individuals and other
employees identified by job title or department and
store location. The subpoena also seeks job descriptions,
if any, for certain specified job titles, personnel manuals
and other readily identifiable documents or records. To
expect the Commission to supply the exact title, date of
issuance or other similar information for each docu-
ment requested is unreasonable since the Commission
cannot possibly obtain that information without first
seeing the subpoenaed documents. The Commission has
already indicated that if the information requested does
not exist in the exact form described in the subpoena,
providing access to records which do contain the infor-
mation is a permissible alternative to producing the
documents themselves.
Respondent-Petitioner also argues that it would be un-
duly burdensome and oppressive to require that it produce
the documents called for by the subpoena, which accord-
ing to Respondent-Petitioner, number in the hundreds.
However, it is well-established that where the Commission
finds, as it does here, that the records sought are relevant
or material to the charge or charges under investigation,
a Respondent’s assertion of burdensomeness will not war-
rant modification or revocation of a subpoena. Any in-
convenience or difficulty in compliance (which is inherent
in any compulsory process proceeding) must be con-
sidered as part of the social burden of living under gov-
ernment. H. Kessler & Co. v. EEOC, 53 F.R.D. 330
(N.D. Ga. 1971), affirmed in pertinent part, 468 F.2d
25 (5th Cir. 1972), reaffirmed in pertinent part en bane,
472 F.2d 1147 (5th Cir. 1973), cert. denied, US.
—, 5 EPD para. 8659 (1973).
Respondent-Petitioner additionally objects to the sub-
poena on the ground that it “calls for the production of
records relating to a time ‘not pertinent, relevant of ad-
missible to any matter in question in this proceeding.”
For the most part the subpoena requests records covering
a period of one or two years. In some instances, however,
documents covering a three year period are sought, and
54
one item requests evaluations and rating records for
certain employees over a period of four years. We note
that Charging Parties have worked for Respondent-
Petitioner for a number of years and that several of the
charges date back to 1971 and 1972, while others are
more recent. These circumstances, coupled with the fact
that the subpoena represents seven charges all of which
raise class issues, justify the time period for which rec-
ords are being sought. We believe that the scope of the
subpoena is entirely consistent with the discovery powers
of the Commission recognized in numerous judicial de-
cisions. E.g., Georgia Power Co. v. EEOC, 412 F.2d 421
(5th Cir. 1969) (discovery of data dating five years prior
to the alleged violation permitted) ; Sheet Metal Workers,
Local 104 v. EEOC, 489 F.2d 287 (9th Cir. 1971) (dis-
covery of events occurring prior to the effective date of
the 1964 Act allowed). Accordingly, we do not feel that
the period covered by the subpoena is unreasonable.
Respondent’s final ground for requesting revocation of
the subpoena is that witness or mileage fees have not yet
been tendered to it. While witness fees are provided for
in Section 710 of the Act and in the Commission’s regu-
lations, such fees are to be paid only in cases where
testimony from witnesses is called for and are not ap-
propriate for a subpoena duces tecum.
DETERMINATION
Respondent’s petition to revoke the subpoena is denied.
The subpoena is modified to the extent that the addressee
therein is required and directed to appear before James
S. Bures, District Court of the Equal Employment Op-
portunity Commission in the City of Pittsburgh, Pa., on
June 13, 10 a.m., 1975, to produce all of the documents
described in the subpoena.
Approved by the Commission ;
as demonstrated by the attached
statements:
/s/ Edwardo Pena
Director of Compliance
/s/ Illegible
Date: 5-9-75
55
EXHIBIT “L”
DIRECTIVES TRANSMITTAL
Number 150
Date: May 21, 1975
SUBJECT: EEOC COMPLIANCE MANUAL.
Purpose. This transmittal covers a new Section 83, Dis-
closure of Information to Case Files of Volume 1, Pro-
cedures, EEOC Compliance Manual, which prescribes
procedures for making available informa:ion contained
in ease files of EEQC.
Effective Date. Upon Receipt.
Distribution. Compliance Manual Holders, Volume 1.
Supply of Forms. EEOC Form 167, Agreement of Non-
disclosure, is available through normal supply channels.
Obenlete Data. None.
Approved /s/ Edwardo Pena
Director, Office of Compliance
Approved /s/ Illegible
Executive Director
Approved /s/ Illegible
General Counsel
56
DISCLOSURE OF INFORMATION IN CASE FILES
SECTION 83
DISCLOSURE OF INFORMATION IN CASE FILES
83.1 General—Section 709(e) of Title VII makes it un-
lawful for any employee of the the Commission to make
public information obtained by the Commission pursuant
to its general authority to investigate charges of discrimi-
nation prior to the institution of any proceeding under
Title VII. The Fifth Circuit Court of Appeals has held
(Kessler v. EEOC, 472 F.2d 1147 (5th Cir. 1973) 5
FEP Cases 405 that granting access to such information
to charging parties or their attorneys prior to the institu-
tion of a proceeding under Title VII is not “making
public” within the meaning of that term as used in
section 709(e).
83.2 Exceptions
(a) Disclosure of Information in Response to Sub-
poenas, Demands or Order of Courts or Other Authori-
ties—The procedures and policies of this section do not
apply to disclosures of information from case files in
response to subpoenas, demands or orders of courts or
other authorities. The procedures in sub part B of the
Commission’s Regulations on Availability of Records (29
CFR 1610.30 through 1610.36) are to be followed in
these circumstances.
(b) Disclosure of Information When the Commission
is a Party to Litigation—Once a case file has been re-
ferred to Office of General Counsel to be used in litigation
to which the Commission is a party or in any other case
where the Commission is a party to litigation, the Office
of General Counsel will control disclosures of information
and all persons requesting disclosure from District Offices
or National Programs Division (NPD) will be referred
to the Office of General Counsel as provided in section
1610.34 of the Commission Regulations.
eee
57
(ec) Disclosure of Information in Case Files to Repre-
sentatives of Interested Federal, State or Local Authori-
ties—The procedures and policies of this section do not
apply to disclosures of information in case files to rep-
resentatives of interested Federal, State or local agencies.
Such disclosures are to be made as appropriate and neces-
sary to carrying out the Commission’s responsibilities
under the law in accordance with section 709(b) of Title
VII and section 1601.20 of the Commission’s Procedural
Regulations.
83.3 Conditions Precedent to Disclosure—Information in
case files may be disclosed on request to the persons indi-
cated in 83.5 under the following conditions:
(a) In connection with Pending or Contemplated Liti-
gation—Information in case files may be disclosed pro-
vided that the request is made for the purpose of review-
ing information in the case file in connection with pend-
ing or contemplated litigation. Access to the information
will not be granted prior to the expiration of the 180
day period prescribed at section 706(f) (1) of Title VII
except when the charge has been dismissed or the ag-
grieved or charging party demonstrates a compelling need
for access prior to the expiration of the 180 day period;
and
(b) Persons Requesting Disclosure Must Agree Not to
Make the Information Public—Information in case files
may be disclosed only on the condition that the persons
requesting disclosure agree in writing not to make the
information obtained public except in the normal course
of a civil action or other proceeding instituted under
Title VII.
83.4 Use of EEOC Form 167, Agreement of Nondis-
closure (See Exhibit 83-A). Each person to whom dis-
closure is made will sign a separate EEOC Form 167,
Agreement of Nondisclosure, check the appropriate block
to indicate identification and provide a complete address
and telephone number. Completion of EEOC Form 167
will be accepted as evidence that the conditions in 83.3
are agreed to by the person requesting disclosure. The
58
Commission representative who signs the EEOC Form
167 on behalf of the Commission will normally be the
District Counsel, District Director or other responsible
professional employee in a supervisory position. Retain
the original in the case file. A copy may be provided to
the person requesting disclosure, if requested.
83.5 Persons to Whom Information in Case Files May
be Disclosed—Information in case files may be disclosed
on request, after complying with the expunction require-
ments discussed in 83.6, to only the following persons:
(a) Charging Parties and their attorneys (except as
otherwise provided in 83.5(c) below) :
(b) Aggrieved persons in case files involving Commis-
sioner Charges and their attorneys provided that such
persons have been notified of their status as aggrieved
persons pursuant to section 1601.25(c) of the Commis-
sion’s Procedural Regulations ;
(c) Persons or organizations filing on behalf of an
aggrieved person, provided that the aggrieved person has
given written authorization to the person who filed on
his or her behalf to act as the aggrieved person’s agent
for this purpose and their attorneys;
(d) Employees of Commission funded groups such as
the Mexican-American Legal Defense and Education
Fund and Lawyer’s Committee for Civil Rights Under
Law for the purpose of reviewing information in case
files to determine the appropriateness of referral to
private attorneys as a service to charging parties, pro-
vided that the conditions in 83.4 and 83.6 have been met
and that the Commission funded group is reviewing the
information at the request of the charging party;
(e) Respondents and their attorneys, provided that
the charging party or aggrieved person has filed suit
under Title VII; and
EQUAL E/APLOYMENT CP?PORTUNITY CCM/AISSION
AGREEMENT OF NONDISCLOSURE
Pursuant to Section 766q{1) of Titte Vil, me EEOC snail Neve power to conperate with private indivkiusls in order to !
sccomolish the purposes of Tithe Vil.
PERSON REQUESTING OICCLCEUAC
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I John V. Evans . Pequest disclosure of Cammuasuon case file(s) in connes-
(Typed nema}
tioe with coatemplated or pending litigation. | agree thet the information disclosed to me will not be mace
public or weed except ia the sormal courve of « civil actioe.or other proceediag inatituted under Title VO
iavolvieg such informatica.
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discosure.
y <a 999-919-1010
oes ae ee Crem +
YH Pere rem omting teat cere (Signe tere ond Bris pe ooriens cove)
Lovez, Evan and Fenwick, 1302 Dawn St., Potne Sarrow, Aissks
99399
Came we os ome
(Mes, Iiascrict Counsel, Poine Barrow Districse Office
EOC rewrewemesirve (Sener cms Mt)
CEOS cov me 167
Exhibie §3-aA
6S
61
(f) Any party in a class action complaint, provided
that such party is actually named in the complaint as
filed in Federal district court or is actually named by
court order as a class member.
83.6 Expunction of Confidential Material from Case
Files Prior to Disclosure
(a) General—Expunction of confidential material
pursuant to this section will be strictly supervised by
the District Counsel or Attorney Advisor in NPD, the
District Director, Chief, NPD, or other responsible pro-
fessional employee in the absence or non-availability of
an attorney or the District Director. Supervision of ex-
punction will not be further sub-delegated to non-profes-
sionals.
(b) Statements and Identities of Witnesses Promised
Anonymity—Remove any information concerning the
identities and statements by witnesses who have been
promised anonymity by a Commission representative
during the course of investigation or conciliation. The
statements of such witnesses are to be clearly marked by
the Commission representative who promised anonymity
by placing the words “Confidential Witness—Do not Dis-
close this Statement” at the top and bottom of each page
of each statement. The confidential witness’s name is to
be followed by the words “Confidential Witness” when
used on the index to tabs in the case file. The name is
to be obscured and the index photocopied so that only
the words “Confidential Witness” appears on the index
provided to persons requesting disclosure. A similar pro-
cedure is to be followed each place the confidential wit-
ness’s name or information obtained from the witness ap-
pears in the case file.
(ec) Review Sheet on Commission Decisions—Remove
the review sheet covering Commission Decisions before
disclosure because this review sheet records information
concerning intra-governmental advisory and deliberative
communications.
(d) Intra-Agency and Inter-Agency Memoranda—Re-
move the Investigator’s Memorandum. Remove all memo-
randa, notes and other documents prepared by Commis-
PREVIOUS PAGE WAS BLANK
62
sion attorneys or received from other governmental agen-
cies which contain recommendations or mental impres-
sions as to strategy for settling the case or litigation.
Remove all memoranda or notes from Regional Litiga-
tion Offices, from Office of General Counsel and from the
Department of Justice.
(e) Any Data on Other Respondents—Remove all data
naming other respondents which may be contained in the
case file. The names of other respondents usually will
be contained on EEOC Form 155, Pre-Investigation
Charge Analysis, if charging party has filed charges
against other respondents or on deferral correspondence
which sometimes includes lists of charges deferred. The
names of other respondents is to be obscured from such
documents before disclosure.
(f) Conciliation Materials—All information in case
files concerning the Commission’s attempts to settle the
charge by the informal methods of conference, concilia-
tion and persuasion will be removed. The material to
be removed includes: EEOC Form 134, Conciliation
Case Analysis; EEOC Form 159, Log of Conciliation
Actions; EEOC Form 156, Final Conciliation Summary;
EEOC Form 180, Conciliation Benefits; Commission and
respondent proposals and counter proposals; and all cor-
respondence and any other information in the case file
similar to that customarily contained in the items cited.
EEOC Form 153, Invitation to Participate in Settlement
Discussion, will be disclosed.
83.7 Scope of Disclosure Permitted
(a) Employer Information Reports (EEO-1) or
Other Reports Prescribed by the Commission Pursuant to
Section 709(c)—All reports required by the Commission
from respondents covered by Title VII such as Employer
Information Report (EEO-1), State and Local Govern-
ment Information Report (EEO-4) will be disclosed if
available in the District Office or National Programs
Division notwithstanding the fact that these reports were
not actually in the charging party’s case file.
(b) Information in Case Files Obtained from OFCC
or Contract Compliance Agencies Under the EEOC/
63
OFCC Memorandum of Understanding—Paragraph 5 of
the Memorandum of Understanding between EEOC and
OFCC signed September 11, 1974 provides as follows:
“All requests by third parties for disclosure of in-
formation shall be referred to the agency which
initially compiled or collected the information”’.
Information obtained from a contract compliance agency
or OFCC pursuant to this agreement will be disclosed
only to those persons entitled to disclosure under 83.5 and
subject to the conditions in 83.3 and 83.4. Requests for
this information from persons other than those in 83.5
should be referred to the agency which initially compiled
or collected the information in accordance with section
1610.6 of the Commission’s Regulations and EEOC Order
151 entitled: Disclosure of Information Under the Free-
dom of Information Act (but also see 83.2(c)).
(ce) Other Case Files Involving the Same Respondent
(1) General—The Commission’s policy is to cooperate
with private Title VII litigants and to lend appropriate
assistance in framing proper court complaints by allow-
ing, when requested, access to information in other case
files involving the same respondent which are available
in the same District Office or National Programs Divi-
sion, provided that the information in the other case
files is relevant or material to the private litigant’s case.
(2) Determining When Information in Other Case
Files is Relevant or Material—Information in other case
files is relevant or material when other case files contain
charges, investigations or determinations involving the
same basis (e.g. sex, religion, national origin, race) with
limited exceptions such as when the private litigant’s
ease alleged discrimination in promotion against fe-
males and the other case file involved a male’s claim that
he was not hired because of respondent’s policy of not
hiring long haired males. Other case files may be rele-
vant or material if they involve a different basis only
when the treatment afforded one protected class is pro-
bative of treatment afforded the private litigant’s class
(e.g. systemic discrimination against Spanish Surnamed
64
Americans is often probative as to treatment accorded
blacks and vice versa).
(3) Safeguard the Identity of Person on Whose Behalf
Charge was Made When Disclosing Other Case Files In-
volving the Same Respondent—Section 1601.6 of the
Commission’s Procedural Regulations provides that the
Commission shall safeguard and keep confidential the
name and address of any person on whose behalf a charge
is made. When disclosing information in other case files
involving the same respondent, remove any material
which would reveal the name or address of any person
on whose behalf a charge was made including EEOC
Form 151, Third Party Certification of Charge, (or any
other document serving the same purpose), the affidavit
required by 2.3(f) in which the person on whose behalf
a charge is made acknowledges aggrievement or any
other documents which contain the name or address of
the person on whose behalf a charge was made. When
constructing the case file, a procedure similar to that
described in 83.6(b) is to be followed, i.e. clearly mark
the index tabs in the case file and mark each document
which contains information which the Commission is re-
quired to safeguard pursuant to section 1601.6 of the
Commission’s Procedural Regulations.
(4) District Director or Chief, NPD, Decision as to
Relevant or Material is final—Because the policy of
allowing access to information in other case files is dis-
cretionary on the part of the Commission the decision of
the District Director or Chief, NPD, is final when made
and may not be appealed. However, any District Director
or Chief, NPD may reconsider on his or her own motion
any decision made as to relevancy.
83.8 Collection and Disposition of Fees for Copying—
Fees for photocopying will be assessed or waived in ac-
cordance with the schedule of fees contained at sections
1610.15 of the Commission’s Regulations. Collections and
disposition of fees will be in accordance with EEOC
Order 471. Persons granted access to information in
ease files will not normally be permitted to remove case
files from Commission premises except that the District
Director or Chief, NPD, may allow a file to be copied
65
away from Commission premises if unusual circumstance
warrant and proper safeguards are observed to prevent
loss or mutilation of the file. District Office or National
Programs Division personnel will photocopy materials on
request; however, if a request for photocopying involves
unusual problems of reproduction or handling, District Di-
rector or Chief, NPD may require persons requesting
copies to make special arrangements. Persons granted
access are to be encouraged to minimize the amount of
photocopying by Commission employees by first carefully
inspecting the information in the case file and making a,
judicious selection of the materials to be photocopied.
83.9 Copy of this Section may be Provided to Persons
who Sign EEOC Form 167—A photocopy of this section
will be provided to persons who sign an EEOC Form
167 at no cost.
66
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
(RICHMOND DIVISION)
Civil Action No. 75-0297R
ASSOCIATED DRY GOODS CORP., PLAINTIFF
Vv.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
DEFENDANT
MOTION TO DISMISS
The Defendant Equal Employment Opportunity Com-
mission hereby moves the Court to dismiss the complaint
in this action on the ground that the Court lacks juris-
diction over the subject matter thereof, as more fully
outlined in the Defendant’s memorandum of points and
authorities in support of this motion.
Respectfully submitted,
ABNER W. SIBAL
General Counsel
ISSIE L. JENKINS
Associate General Counsel
Legal Counsel Division
CONSTANCE L. DUPRE
Supervisory Attorney
/s/ Anthony DeMarco
ANTHONY DEMARCO
Attorney for the Defendant
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION
2401 E Street, Northwest
Washington, D.C. 20506
LOCAL COUNSEL: Assistant U. 8. Attorney
U.S. Post Office Building
10th and Main Streets
Post Office Box 1257
Richmond, Virginia 23210
67
ATTACHMENT A
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Civil Action No.
ASSOCIATED DRY GOODS CORPORATION, PLAINTIFF
Us.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
DEFENDANT
AFFIDAVIT OF RITA M. SMITH
STATE OF PENNSYLVANIA
COUNTY OF ALLEGHENY
Rita M. Smith, being duly sworn, deposes and says,
1. That she is employed as Equal Employment Specialist
at the Pittsburgh District Office of the Equal Employ-
ment Opportunity Commission.
2. That in the week of March 4th, 1974 she attempted
to investigate seven charges of discrimination against
Joseph Horne Company, EEOC Charge Nos. TPI2-
0454, TPI3-0836, TPI3-0774, TPI2-0324, TPI2-0323,
TPI2-0484 and TPI2-0562. Respondent Joseph Horne
Company refused to allow her to investigate and in-
terview witnesses.
3. That on March 15th, 1974 Rita M. Smith again at-
tempted to investigate the aforementioned EEOC
charges and to examine and copy records of Respond-
ent. Respondent again refused her access to relevant
records and refused to allow her to interview wit-
nesses whom she named. However, Respondent indi-
cated that Ms. Smith could interview its selected
witness. Ms. Smith declined this invitation.
_
68
4. That Ms. Smith sent a copy of a letter addressed to
Joseph Horne Company to Louis Kushner, Charging
Parties’ attorney on February 25th, 1974. Ms. Smith
mistakenly believed at that time that Mr. Kushner
was counsel to Joseph Horne Company rather than
counsel to Charging Parties.
/s/ Rita M. Smith
RITA M. SMITH
Sworn to and subscribed before me this 27th Day of
July, 1975.
/s/ Louise Ann Conaly
LOUISE ANN CONALY
69
JACKSON, LEWIS, SCHNITZLER & KRUPMAN
Attorneys at Law
261 Madison Avenue
New York, N.Y. 10016
212-697-8200
December 8, 1975
The Honorable Robert H. Merhige, Jr., U.S.D.J.
United States District Court
Eastern District of Virginia
Post Office Building
10th & Main Streets
Richmond, Va. 23219
Re: Associated Dry Goods Corporation v. E.E.0.C.
U.S.D.C., E.D. Va., Civ. Action No. 75-297-R
Dear Judge Merhige:
We are in receipt of the E.E.0.C.’s reply memorandum
in the above matter, submitted nearly a month after
Associated Dry Goods Corporation (A.D.G.) filed its
response to the Commission’s motion to dismiss. For the
most part, the arguments made in the E.E.O.C. reply
memorandum are repetitive of those raised originally
by the Commission in its motion; we have dealt with
them in A.D.G.’s memorandum in opposition. There are
few items, however, which deserve comment. We direct
our remarks to them below.
I. The Affidavit of E.E.0.C. Investigator Rita Smith
A. In an affidavit of Equal Employment Specialist
Rita M. Smith, annexed to the reply memorandum, the
Commission seeks to neutralize the effect of its unau-
thorized and unlawful disclosures in this case. Instead,
it only succeeds in focusing attention on the wrongful
acts. Ms. Smith avers that she:
“. . . sent a copy of a letter addressed to Joseph
Horne Company to Louis Kushner, Charging Parties’
70
attorney on February 25th, 1974. Ms. Smith mis-
takenly be “eved at that time that Mr. Kushner was
counsel to yoseph Horne Company rather than coun-
sel to Charging Parties.”
Smith affidavit, at 2, par. 4. The letter referred to by
Ms. Smith itself disclosed the existence of other charges
against Horne’s. Of still more concern, however, were the
attachments to the letter: a detailed interrogatory pro-
viding the knowledgeable reader with a very good idea
of the nature of the unproven charges against Horne’s
(Exh. B to Complaint), and copies of two of the charges
against Horne’s filed by individuals who had not retained
Mr. Kushner as counsel.
There is another question raised—or resurrected, to
be more exact,—by the Smith affidavit: How many
Charging Parties does Mr. Kushner represent? In at-
tempting to explain the transmittal of information to
attorney Kushner, the Commission’s District Director
originally stated that Mr. Kushner represented two
charging parties (Exh. E to Complaint). Later, how-
ever, he said that Mr. Kushner only represented one
such person (See copy of letter attached). Now, in her
affidavit, Specialist Smith refers to Mr. Kushner as the
“Charging Parties’ attorney” and “counsel to Charging
Parties,” clearly indicating plural representation, but
failing to specify the number or identities of his clients.
The foregoing is cause for much concern in the context
of this case. The disclosures, we stated in our memoran-
dum, were made in apparent violation of $$ 706(b) and
709(e) of Title VII (at 3 n.2). Just as importantly,
however, they reveal a laxity of administrative control
by the Commission over the maintenance and dissemina-
tion of information in its possession. The evident con-
fusion over the role of attorney Kushner, which still
persists after nearly two years, shockingly confirms this
view. Prudence dictates that A.D.G.’s Horne’s Division
not place faith in the willingness or ability of the
E.E.0.C. to protect the confidentiality of its records—
even where the Commission concedes confidentiality is
required by statute. Its reluctance to permit a free-
71
wheeling, all-inclusive inquiry into Horne’s practices and
records by this agency, without any apparent interest in
or capability for protecting Horne’s interests, is not only
understandable, but unavoidable.
B. Ms. Smith’s affidavit also asserts that Horne’s re-
fused to allow her to investigate, interview witnesses,
and examine relevant records, in connection with seven
charges, in March, 1974 (at 1, pars. 2,3). The facts are
otherwise.
The principal subject of discussion at the meetings
adverted to by Ms. Smith—on March 6 and March 14—
involved the charge filed by Alice Corvino. With respect
to this charge, alleging sex discrimination, Horne’s had
been sent a notice of charge by the Commission errone-
ously citing race or color as the basis thereof. At the
March 6 meeting, Ms. Smith advised that the charge
alleged sex discrimination, and immediately requested the
personnel files of employees assertedly named by the
charging party. When asked to first provide the specifics
of the Corvino charge, Ms. Smith refused to do so. In-
stead she insisted upon being granted access to the files.
Horne’s attorney, Robert Lewis, expressed concern over
the notation on the District Director’s letter indicating
that copies of the District Director’s February 25 letter
and accompanying material had been sent to attorney
Kushner. He then told Ms. Smith that the Company
would respond to her request for access to files at their
next meeting.’
On March 14, Horne’s made available several super-
visors of Ms. Corvino, knowledgeable about her employ-
ment, for interviews by Ms. Smith. Ms. Smith declined
to speak with them, and insisted that she be granted
access to employment records. Attorney Lewis then ad-
vised Ms. Smith that unless she were willing to inform
the Company of the relevance of the records sought. to
the Corvino charge, the Company would not produce them.
When Mr. Lewis inquired whether Ms. Smith had any
1 Also at the meeting, Ms. Smith advised that the Commission
would pursue its investigation on another of the charges which a
previous investigator had indicated was concluded.
72
specific questions concerning Ms. Corvino’s employment,
or sought specific information, investigator Smith re-
sponded again that she wanted to see all the personnel
records. Mr. Lewis then expressed concern at the broad
scope of the Commission’s investigation, and the work
entailed in collecting the information sought. Ms. Smith
did not indicate that she wanted to interview witnesses
of her own choice. On both March 6 and 14, Ms. Smith
adverted to the likelihood of Court action in such a
manner as to indicate a litigious approach to the investi-
gation.2. Thus, Horne’s did »t impede a proper investi-
gation.
Il. The Requirements of Title VII and Disclosure
The central issue raised by the complaint is whether
the Commission may release information obtained from
employer respondents to charging parties and other pri-
vate persons, without regard to the nature of the infor-
mation, in particular, its confidential character. Arguing
that A.D.G.’s attack “strikes at the jugular of the Com-
mission,” the E.E.0.C. suggests that the Company seeks
to prevent the Commission from disclosing data even to
other federal, state and local governmental agencies.
(E.E.0.C. reply memorandum, at 4). A.D.G. seeks no
such rule. While the Privacy Act of 1974, 5 U.S.C.
§$ 552a, addresses this problem, the immediate question
in this case involves a wholesale disclosure of data in
investigative files to private, adverse parties, prior to the
commencement of litigation.’ It does not involve, as the
defendant exaggerates, publication “to the world.”
(E.E.0.C. reply memorandum, at 4). The disclosure
contested here is abusive and unnecessary, even under
2 These facts should be the subject of testimony in an evidentiary
hearing rather than affidavits or arguments of counsel. Yet, by
raising these very questions, the E.E.0.C. suggests that its own
motion is inappropriate. There do exist genuine issues of material
fact which require an evidentiary record.
3 The Commission denies access to these same files to a respond-
ent prior to commencement of suit. E.E.0.C. Compliance Manual,
§ 83.5(e) (Exh. L. to Complaint).
73
the Commission’s overdramatized view that aggrieved
individuals should be given assistance “to formulate their
complaints and redress the David and Goliath aspect of
employment discrimination where an employee stands
alone against the corporate employer.” (E.E.0.C. reply
memorandum, at 4 n.3). Assistance short of such dis-
closure may be provided without jeopardizing legitimate
business interests in confidentiality. In any case, the
E.E.0.C.’s argument ignores the fact that before David’s
first stone is cast, the Commission should seek to deter-
mine through cooperative means whether discrimination
exists, and if so, to correct it through conciliation. The
Commission’s disclosure rules are incompatible with this
primary obligation. Therefore, it is not A.D.G. who is
threatening to prevent the Commission from carrying
out its statutory duties; rather, it is the Commission it-
self, by its own short-sighted and self-defeating regula-
tions.
III. Jurisdiction and the Decision in
Sears, Roebuck & Co.
The Commission asserts the recent decision in Sears,
Roebuck & Co. v. G.S.A., F’, Supp. » 41 F.E.P.
Cases 727 (D.D.C. 1975), “squarely decided” that “the
Freedom of Information Act gives a plaintiff no cause
of action where the government decides to disclose
records but the plaintiff seeks to prevent such disclosure.”
(E.E.0.C. reply memorandum, at 8). This attribution
is incorrect.
Sears held that where the government maintains that
the F.O.I.A. requires disclosure of certain documents, a
litigant may invoke the F.O.I.A. and the Declaratory
Judgment Act to obtain an adjudication of the conten-
tion—a “reverse F.0.I.A.” case in fact if not in name.
In the instant matter, the E.E.0.C. asserts that Title VII
requires the disclosure of case files as part of its statu-
tory duties. (E.E.0.C. reply memorandum, at 2). Even
under the Sears rationale, A.D.G. may obtain a similar
adjudication under Title VII and the Administrative
Procedure Act. In this context, the F.O.LA. exemptions
74
are relevant “as guidelines in measuring the agency‘s
action,” * and their underlying policies “provide a sound
basis for determining whether release of the documents
in question would be ‘arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.’ ”
Sears, Roebuck & Co. v. G.S.A., 389 F. Supp. 996, 8
F.E.P. Cases 1155, at 1158, (D.D.C. 1974). How much
more arbitrary, capricious and abusive are the author-
ized disclosures where, as here, the agency refuses even
to recognize that investigative documents may be con-
fidential, and fails to provide any administrative mechan-
ism for determining whether they are or not. We find
the Commission’s argument based on Sears disingenuous
and unpersuasive.
IV. Review of Agency Action
The Commission engages in extensive discussions
based on Littel v. Morton, and the Abbott Laboratories—
Toilet Goods trilogy.° The import of these decisions has
been treated at length in our memorandum in opposition
to the motion to dismiss (at 17-21, 23-26). With respect
to Littell v. Morton, supra, we pause here only to observe
that the Commission appears to be reduced to arguing
that issuance of a subpoena is not agency action. While
we find this argument frivolous, it is to be noted that
the E.E.0.C. fails to mention the Commission’s Deter-
mination denying A.D.G.’s petition to revoke the sub-
poena (Exh. K to Complaint). There can be no question
but that the Determination constitutes final agency
action from which judicial course may be sought.
With respect to the Abbott Laboratories—Toilet Goods
Ass’n. cases, supra, we believe A.D.G. has shown the
necessary elements to justify the assertion of jurisdic-
tion.
4 Id., at 730.
5 Abbott Laboratories v. Gardner, 387 U.S. 136 (1967); Toilet
Goods Ass’n. V. Gardner, 387 U.S. 158 (1967); Gardner v. Toilet
Goods Ass’n., 387 U.S. 167 (1967). See, E.E.0.C. reply memo-
randum, at 5-9.
75
V. The Existence of Triable Issues
Finally, we note the Commission’s apparent uncer-
tainty as to a most important issue raised in these pro-
ceedings. The E.E.0.C. now states: “It is not clear
that the subpoena records are confidential as to a charg-
ing party, see H. Kessler & Co. v. E.E.0.C., supra.”
(E.E.0.C. reply memoranda, at 10) (emphasis added).
Dismissal of an action before trial must be based on
more than debatable points of law, in an uncertain
factual setting. The Commission has failed to show that
A.D.G. could present no state of facts under which it
would be entitled to relief under one or more of the legal
bases relied upon. To the contrary it demonstrates that
there exist substantial questions of fact which are
properly litigated at trial. Dismissal is inappropriate in
these circumstances.
For the foregoing reasons, A.D.G. again requests that
the Commission’s motion to dismiss be denied.
Respectfully submitted
JACKSON, LEWIS, SCHNITZLER & KRUPMAN
/s/ Roger S. Kaplan
ROGER S. KAPLAN
HUNTON, WILLIAMS, GAY & GIBSON
By: Hill B. Wellford, Jr.
RSK /ee.
ec: Anthony J. DeMarco, Esq.
David A. Schneider, Esq.
i a
EQUAL E7APLOYMENT
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(Sign your reave)
zo]
esectse #25 Scblnte before me (et LG day of Pa 4 bx ay “at,
gree hd 4 - 4 k
Y es 2 Li, Ah Seas re Pt ee
EERE a IRE AS Se A a sa ie : rit saad CAT MES TE yea
- a ‘ fe .
Ris AM curt ise ye ons. rita Notary Pudlic to sign this, siga your own name and mail to tno Regionai Oftice. The Commis HON Wed ity yO
gee the tort im SvOFR fo.
VATE. Soh OF FUN UTe-he 354-8 NO] FORM FAK RG a Fee
8L
Or'sNGel UF LISUNIMINALICN
(if you have a complaint, fill in this fonn ...J mail .. to the Equal This form is to be uw. 4 only te ule a charge of discrimiastion basec
Employment Opportunity Comraission’s Regional Office in your on RACE, COLOUR, RELIGION, SEX, of NATIONAL ORIGIN.
area. In mest cases, a charge myust be filed with the EEOC within
@ specified tine after the discriminatcry act took place. IT IS
THEREFORE !MPCRTANT TO FILE YOUR CHARGE AS SOON AS Case FileNo. 77/2 C562
POSSIBLE. eit
(PLEASE PRINT OR TYPE) SSL
1 Your Name OK, Hrs., Miss) “jarlene I, Denk Phone Number Bhb - 244-7362
indicate
Street Address __500 Point View Road i"
City Pittsburch, State uPA Zip Code __ 15227
2 WAS THE DISCRIMINATION SECAUSE OF: (Please check one)
Race or Color 2 ReSzious Creed 1 National Origin 0 Sex KX (F )
3 Who discriminated against you? Give the name and address of the employer, labor org: mployment agency and/or epprentice-
ship committee. If more than cme, list all. a IN
Name____ Joseph HOrne Company (A a BO
Street eddress _50] Perm Avenue WwZ NON,
City Pittsbureh State PA > A Ninise Fee
AND (other parties if any) {- aie Miaalhd
jr | o2D4 g2¢os4 } he
— =~ Jb
1 Ay
‘AVZ ay.
NN ky, Wire. Si
uf is charg i ? pt A
4 Have you filed this charge with a state or local government agency Yes O Where = ae No Xx
If your charge is cgainst a company or a union, how many employees or members?
en oe aki : Under 25) _ Over 25 (x
—— -
6 The most recent date on which this discrimination took place: Month 2 Day 24 Year 22 con’ is
7 Explain wnat unfaw thing was ome to you. biga were other persons tn differently? (Use extra sheet i if necessary.) _ a
Otfice
_of the phaeiaonbe ed | respondent . company ure a period of five years
_On February 24, — 1972, I was informed that I would be trained as E
_store detective and would have to perform several difficult tasks in
_several different job _catecories. A large emount of travel and SUEFTCOIE
hours would be involved. I | I feel. that this. action h has _ 3 been taxen seatast”
he as_a technique of harassment beczuse_ of my previous s contact with tac_
~Equal Ernloyment Opportunity Commission and 5 on ey With others that
have filed. charsed_with this Commission. _and that this_ is S$. part of a
—planned_action_ cf retaliation azainst those in mv y_departmen’ have deaii
withthe EEOC, I _ also feel ‘that - the company has _« di scriminacea asainst
—wonen_as_aclass_in the terms and conditions of employme nt_and_tnae bi Bee
See permanent indirect violation of Title VII of the Civil Rishts Act of _
1964 iene a eens snbeieabieheimaiel
8 I swear or affirm that | have reed the above charge and that it is true to the test of my «nowledge, intbrsnation and betief.
Date ttt / 72 Lin. | a Pe ea v
futis ign 5 your Name)
Subscribed and swcin to before me this _ 28 day of _ fz 7 196 7/7.
¢ Pa ir a , ‘ :
( ea fa f Same fees, (a, . i eal j Fo ae 7 fe
eit ee eS ees 8 A PERRET IED OE TS PRPS Rs, eR ties
Ir ik ts Calicut tor you te get a ine ary Fucite to sign tis, Sign your own name and mail to the Regicra! Gifice. The Coanssie: 2 wil ter gy
to got the torm sv.sra to.
FORM APP: BUR. OF BUDSET—Na 124-R™01 FOR ECOL-S (PLY. )-£2) br
CHANGE UP DISUIMINALIUN
(If you have a complaint, fill in this form anc .:ail it to the Equal This foim is to be useo _..ly to file a charpe of discrimination based
Employment Opportunity Commission's Regional Office in your on RACE, COLOR, RELIGION, SEX, or NATIONAL ORIGIN.
area. In most cases, a charge must be filed with the EEOC within
@ specified time arer the discriminatory act took place. IT IS
“HEREFORE IMPORTANT TO FILE YOUR CHARGE AS SOON AS Case File No.__ TP12-0323
POSSIBLE. a oa
(PLEASE PRINT OR TYPE)
1 Your Name2Xr., Mrs.. M3) Helen A, Pollock Phone Number 486-6037 _
indica
Street Address _ 3979 Lawrence Avenue
City Allsion Parx State ___ Pennsylvania ___ Zip code 15101
2 WAS THE DISCRIMINATION SECAUSE OF: (Please check one)
Race or Color OD Religious Creed 2 National Origin 2 SexXx
Goa) SoU, iT Une. ;
3 Who discriminated agzinst you? Give the name and address of the employer, labor organization, empf ay asenc de Jornrpprentice-
ship committee. If more than ane, list all. VS aN
Name___ JOseph Horne Co, DP)
hee ee
Street address _ 501 Penn Avenue be
City __ Pittsburgh _ - State ___ Pennsylvania __{; zz Cade i970 |S:
ii
cnhemy
AND (other parties if any) ie
WN LSi
iS;
ey 7
S wr
Yes When Nk
sO : MONTH DAY YEAR «x
4 Have you filed this charge with a state or local government agency?
& If your charge is agzinst 2 company or a union, how many employees or members? Under 25 O Over 25 4
6 The most recent date on which this discrimination took place: Month January — Day os Year ]972. cont,
7 Explain what unfair thing was Cone to you. How were other persons treated differently? (Use extra sineet if necessary.)
__The responcent emplover has in the past and continuously thereafter to |
__date ciscriminet acainst women b omoting and/or hiring oniv mzn
into supervisory positions even yoy the women were as eauelly
qualified and aple to perform the job as the men.
—__The_responcent employer has in the past and continuously thereatter D
~—_date_discrininates-ageinst_wanen_by_paying tt them lower wazes and_ pené@1E
ae men_perrorm substantially the sane joo _
duties ~~,
“1
I. fee) this | renresents discrimination ag agains st women as a -E18s s and is i:
@ I swoarcr affirm thet | have read the above charge aiid that it is true to the ae of my knowledge, information and belief.
Dste L- 3-72 Sh oe ea bee vei Pedy
Sign your rame)
Subscribed and sworn to before me this 3 day of (EOE ken aS 195 _?
4
Fite ae a Ate thn A eo we
— ae ae ore. 5 ok ee” © oe whee
ee
ii it is is er Cut ior you to seta sic le ry Pubirc lo sign this, sign your own name end mail ‘to the Revional Ofi:ce. The Cen. TESSIOI Getet ie gh be
to fet the form sworn to.
FORM APP: BUR CF SUDGET—No. 124-R0001 FORM LOEOS-5 (Rev. 7-02)
va ",HANGE Ur DISUNITMINA LUNN
(If you have a complaint, fill in this form ands il it to the Equal This form Is ‘to be used « g to file a charge of discrimination based
Emp!oyment Opportunity Commission's Regional Office in your + on RACE, COLOR, RELIGION, SEX, of NATIONAL ORICIN.
area. In most ceses, a charge must be fled with the EFOC within -
a specified time after the discriminatory act took place. IT IS ;
THEREFCRE IMPORTANT TO FILE YOUR CHARGE AS SOON AS CaseFileNo. 7) P(2 C649 Y
POSSIBLE. ; a Gan
(PLEASE PRINT OR TYPE) ;
1 Your Name (#¢¥., Mrs. » RiXss Mary Kritko 2 Phone Number _46]-5°64
dicate a
Street Address _ 423 9th Avenue \ ,
Citys Munhal] State Pas \ >) zip Code _ 15120
2 WAS THE DISCRIMINATION BECAUSE OF: (Please check one)
Race or Color 1) Retizgious Creed 1 National Origin 0 Sex (Ff
3 Who Giscriminated against you? Give the name and address of the employer, labor organization, employment agency and/or apprentice
hip committee. If more than one, list all. ee
msi Joseph Horne Co. a oar Fors.
Street address _ 50] Penn. Avenue BF i en E a
City Pittsburgen State ZWF “Zip Code
AND (other parties if any) Bred i: CG, n
ate { oo ‘io } :
Be \ — f. is ae : nial
Zi. % A.
a, eS _ ws rer
4 Have you filed this charge with a state or local government agency? Yes 0 we ia. ‘ i No fr
~~ MONTH DAY YEAR
¢
h is 2g2i 2ny or i h 1
5 If your charge is 2g2inst a comp2ny or a union, how many employees or members? Under 25 0 Over 25 1
6 The most recent date on which this discrimination took plece: Month January Day n Be Year —\ ao
7 Explain what unfair thing was done to you. How were other persons treated differently? (Use extra sheet if necessarv.)
On July 23, 1969 I sustained an on-the-job injury while ‘working for.
_the above-mentioned | respondent, I was not adequately compensated
_ financially and was not given fair treatment during the resulting — eet seis
_ hearings end aciustment_ Period, Because of the respondents ondents_disparate— ee
treatment t_of ‘myself I have lost wages and benefits. for acontinuing ___
_ period of time. _
=-
_Also, the resnondent emnlover has in th inuously therenfis:
__ 6 date _discriminatea against women as a Class bv Vv not promoting them _
~ into supervisory positions and paving them lower wages than men for
substantsailv the same work.
ination ageinst women as a class is in direct
VIT of the Civil Rights Act of 1964, -
8 I sweer or affirm thet I have reed the ebove charge and that it is true to the best of my knowledges, information and belief.
Dete CL2L2 e— Fae m71/ afta t hoe?
Sign your name)
. ; = 329
Sudscribed and sworn to before me this /7 day of fn seen | ee
ty é } -
‘ y ,
4
wp Sanit 7? tL n> f3.5, : fuel En fit Z oes To G =
A'S SRL AAGRDn RRR NR PSE nd. , SNE “ities
; : Lata, S120 YOUr OWN Hamme and mail te the | Regional Giiec. Whe Conia gern
Re gva so itera SA oliiees
FORM APP.: BUR. OF BUDGET—No. 124-ROO] FORM EEGC~§ (RIV. 7-12;
CHARGE OF DISCRiIM,. ATION
tL Crance NO.
FORM APPROVED
ome NO 124-R0001
INSTRUCTIONS
ce fled with tre
mes?
toc olasce. 17 'S CHE
SSEN AS SCSSIBLE. f
It ycuhave ccerria.nt, nil wthis fo-moarnd muil it te the Equs! Cmployment
Cepertuniiy Covmissicn’s District Office in your area. In most teses, ¢ charge
LOC within e specifies time alter the ciscriminaiory act
- 8h RE CRTANT TO Fi.E YOUR CHANGE AS
Atteck exta sheets of paper if necessary.)
CAUSE OF DISCRIMINATION
CL) RACE OR COLOR xk
C) RELIGIOUS CREED
C) NATICNAL ORIGIN
nast (inacete Ur, or Us.y
Ms. Marsue Dingley
DATE OF BIRTH
8-28-47
STRIET ACLRISS
| 903 Chestnut Avenue
City, STATE, AND TF OC
Pittsburgh, PA
COUNTY
15234
|_ Allegheny __|
SOCIAL SECURITY NO,
__186-40-1151
TELEPHONE NO, (/aclude arra code)
343-0517
THE FOLLOWING PERSON ALWAYS KNOWS WHERE
TO CONTACT ME
KAWE (Indicaze Mr. or Ms.)
Mrs, Dinglev
TELEPHONE NO, (Include urea code)
343-0517
STARLET FESS
903 Chestnut Avemie |
CITY, STATE, AND ZIP CODE
Pittsburgh, PA 15234
LIST THE EMPLOYE R, LA®@CR ORGANIZATION, EMPLOYMENT AGENCY, APPRENTICESHIP COMMITTEE, STATE OR
LOCAL GOVERNMENT *#HO DISCRIMINATED AGAINST YOU (If more than one, list all)
NAME TELEPHONE NO. (Include arca code)
Josenh Hommes Company 261-3000 x 884
STREET 2D5zESS CITY, STATE, AND ZIP CODE
Ctanwix Street Pittsburgh, PA 15222
OTPERS tO
DiscerimissTes
AGAINST YOU
(If any}
CPtRCE FILED attH
STativescay Gtv’T.
AGSACY
{_) ves
TATE FILED
AGENCY CHARGE FILED with (Name and address)
APFECRIVSTE & OC. CF EVELEVIES/YCMEERS CF CCMPANY OR UNION TritS DATE MOST RECENT OR CONTINUING DISCRIMINATICN TOOK PLACE
CHALGE 1S FILES AGAINST fMoath, day, and year
over 25 hine_5, 1973
Eyplon whact unies thine w2s cone ito you cnd how other persons were treated differently. Undersicanding that this
Sititerent is for the use of the United Stctes Egual Erployment Oppertunity Commission, I hereby certify:
I have been discriminated against by the above named respondent employer
because of my sex, Female, in promotion, reprisal due to prior contacc
with Eoval Enpicyment Opportunity Commission, and general terms and
conditions of employment which is in direct violation of Section 704
of Title VII of the Civil kights Act of 1964, as amended.
S- >
— a
cy. —s ‘
ie om *
S mw f
Fre" a
Pa ee
mm
- aide
LAE RE ETS, Soe octets ak ‘ teene or.t thet st SUBSCRIBED AND SWORN TD BEFCRE ME THIS CATE
§ Sexes? Cs Seco ~ te ave res. tne coove con3rsce Gres nee § (Dey, neath, and year)
is teue to the bes? c: sy nnowiedse, sr.fesmaion ani belief.
DATE rl€GING PARTY (S*gnoture) VY
a
a
4 ? s
"4 af UC - 7’ ome
, OY ie SEZ i aaa Po CIPO os 7Q [SiGiATine ly et es ayficult ter vou to gete Notary Public tes nu?
> —_ = = -—— =F p> [fPES, otge peur Cun aane und mati to the Gastrict Orjice. Tae
Sutser:i23 sns ewsom ic Zetcre dus EECC teziisen atiyee ~w jturentss.on will notarize the charge fer you =t a later dute./
So re <
5 mB
' 4 .
‘ . aT, oft >
ee eer eel us fe sat et =
. Pi fe
6/6/73 | Equal Employment’ Officer ‘
EEOC nx 22 §
GFO B€0-4+0
Previcus eZitions of this form may De used.
COS Crane WO. teOrm APPROVED
CHARGE CF DISCRIAINATIO: | TPI 3- 0774 1 Wr 124-5941 ro
INSTFUCTIONS CAUSE OF DISCRIMINATION
ree fs tem ent mad ntete DreatEnelorment Hi jens ox ene fet} oe
cat be Fed wt ioe EECS within cencihed tine eer te diceininatery vet |} aeusciovs cnc
SOON &S POSE {Sttach extra sheets of paper ij necessary.) (] wattonat on scin
Alice %. C
wame (inccecie Ir, or Ms.)
orvino
OATE OF BIRTH
ROWwSAPS 2/8 fis
SIREET 450-555
435 Filler
COUNTY
s Lane
SOCIAL SECURITY NO.
195-344-0272
Pittsbur
City, STATE. Awd ZIP COLE
gh
TELEPHONE NO. (Include area code)
793-1478
THE FOLLOWING PERSON ALWAYS KNOWS WHERE TO CONTACT ME
KAME (/r.diccie Mz. oF
Me.)
The above is permanent
TELEPUONE NO, (include area code)
STALET 4URES5
CITY, STATE, ANO ZIP CODE
LOCAL GOVE
LiST TKE EMPLOYER, LABOR ORGANIZATION, EMPLOYMENT AGENCY, APPRENTICESHIP COMMITTEE, STATE OR
PNe EMT WHO OISCRIMINATED AGAINST YOU (If more thon one, list oll)
RAVE
Joseph Horne Company
TELEPHONE WO. (Include cree code)
SiREET 405RE85
Downtorn location - Penn Avenue
CITY, STATE, ANO ZIP CODE
Pittsburrh, Pa.
OTHERS YHO
DISTRIMINATED
AGAINST YOU
(If cry)
CHARGE FILED WITH
STATESL AL Gov't.
ACESCY
fiz] ves [_]+.0
tte FILED AGENCY CHARGE FILED with (Nome and oddress)
APFFOVIMATE % SO. CF
EV-LOVEES/MEMEERS OF COMPANY OR UNICN THIS
CHARS. IS FILED AGAINST
OATE MOST RECENT CR CONTINUING DISCRIMINATION TOOK FLACE
Month, day, ond year)
j Continuous
Exypica vhict uni
s{ctement is ior the use of
promotions and wages.
air tring was Ccne to you and how other persons were treated differently. Understanding inat this
the United States Equal Exploymeat Opportunity Commission, I hereby certify:
The Joseph Eorne Company discrinineted against my female sex through
fexales with respect to promotions and rages. Because of these conditidzns,
I terminated ny employment with the Joseph Horne Comp2ny. Though I was employed
with then for 10 years, I was not able to rise above the position of staff
I believe the cexnpany continuously discrininates agains’
| jes Selo 1). Gp etn
assistant.
a Spare rae ee SUSSCRICLO AND SWORN TO BEFORE ME THIS DATE i
3 sees: of Cli.sm t sti nove ress tne stove cherce ans ihatat (Day, month, end ycer)
ia tove t3 the bes* c: xy xz.cowtesse, iniss-ation esc tehef.
DAlé cr _ G PARTY (Signcture) ° Y
Ya a
ts fie = Wp Vi 1S —— ms
We or /; "ae Of a“ p< _¢ & | sisnatuse (if itis difficult for you to get_o Notary (odie [6 aes
s thir, Sign your own name anu rail to the Cistrict UI ce. Foe
Ssisecize¢ 253 sn te te dese thin FE TO tenresentstive, & | Cormission will notonze the charge for you at 2 deter osie./ H
o
vA
| Zoue2 Bipleynent Srosialist
Previcus edittons of this fom :nay te uscd.
€8
. as
—-_ = - —o |
§ CANGOC UP VISUNRIMIUNATIUI
(If you have a complaint, fill in this for. and map, it to the Eaval This form is to be ..ed om, .v file a charge uf discrimiration baced
Employment Ofpertunity Commissica’s Resicnal Office in your on RACE, COLOR, RELIGION, SEX, or NATIONAL ORIGIN.
area. In mest cases, a charge must de filed with the EEOC within
a specified time efter the Ciscriminatory act tock place. IV IS
THEREFORE IMPORTANT 10 FILES YOUR CHARGE AS SOON AS Case File No.___ LP 12-0324
POSSIBLE.
(PLEASE PRINT OR TYPE) ae
= — — = -y~ =~
. oer @ere ve
1 Your Neme (kin, Mrs. Week Lois Blake Phone Number __3.3}—22.26
cicate
Street Address __ 1225 Adon Street _ =
City _ Pittsbureh State __ PA Zip Code 15204
2 WAS THE DISCRIMINATION BECAUSE OF: (Please check one)
Race or Color O Religious Creed (1) National Origin 0 Sex Xk- Female
3 Who discriminated egainst you? Give the name and address of the employer, labor organization, employment agency and/or apprentice-
ship committee. If more than one, list all.
Name __ Joseph Horne Cornany
Street address 90] Penn Avenue
City __Pittsburei State PA Zip Code 15222
AND (other parties if any)
4 Have you filed this charge with a state or local government egency?
Yes When _ —
0 MONTH DAY YEAR ion ot
—
f ch is 2zainst a company or a union, how many employees or members?
5 If your charge is agai pany i y employees or members Under 25 0 Over 25
6 The most recent date 01 which th’s discrimination took place: Month _ 2 Day _14 a | ee
7 Explain what unfair thing was done to you. How were other persons treated differently? (Use extra sheet if necessary.)
Since Sente=be> 16, 1069 ¢,_Il_ have heen emploved_as_a Store Detective in Do=-
pe ztment 229 -10 0 of the above-named respondent company. I had lone _been
aware o> cis sparate treatment of Scales by the company in regards to wace —
“rates __prozo tions, and other terms and conditions of employment. About _
the lat tex mart of December 197), I contacted tha Pittsburgh District Oific
o. the ©,F.0.C,. tnree times _bv_ telephone and two times by personal visit an
“discussed the e->lovment situation at the respondent company, My supervise
‘the Head of Security, was subsequently made aware of my activities, Or
February 1 14, 1972, I was discharged by the company for allegedly making a_
false arrest, The prrest was not without probable cause and other employee
“comittine the sare act were not discharged,
I_stronzl believe =v discharge sas_a_retaliation_against my contact _w ith
the F.E.0,C, enc thst hab this action, as well as the aa, re ees es rion
against -.c-=n on es a class, int c-~ms_of emnlovme ection violation
OL irle (1). O- Crt C.Vil Richce wee OF Iyoa : ; ay i
6 I saear or efism tnet! ! pave reed tine above Charge @ha that it 1s true to the best “ot my knowledge, information end t«lief.
a - ls a er 4 z / . PA 4
Date ARMS de pee ty Ae 2S I, Bn ne : ft as EN ERIE eae ont
ov i 7 —- 7 “——(Sign yeur name) SEPA
Fa = Ki
. . *” a e ¢ Ps’ -
Subscribed and sworn te befcre ms this ZS day of - 1-€ 2 4-7 19$°'7 .2
“ \ @ ’ Pe © ay
cen rs tee de eo. ee en aries Et iw Lilet ge DO oA a Seer
en as estes ae. Rnfier: as SIRES
GF aR Et OS Mk Foo gn 8S LOLS eS. a Ty © Sich 06 ges Stay gi Foul Cat Kahle end mail t to > the Regional Office. The Con. AVE LION Wai hei wes
to gat the form saorntc.
4
FORM AFP: EUR CF BUOGET—No. 124-RON1 FORM CeOC-5 (KEV. 7-€8)
85
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
RICHMOND DIVISION
Civil Action No. 75-297-R
ASSOCIATED DRY Goops CORPORATION, PLAINTIFF
Vv.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
DEFENDANT
ORDER
For the reasons referred to in the Memorandum of
the Court, this day filed, and deeming it proper so to
do, it is ADJUDGED and ORDERED that the defend-
ant’s motion to dismiss be, and the same is hereby,
denied in part and sustained in part, as referred to in
said Memorandum.
Let the Clerk send a copy of this Order to all counsel
of record.
/s/ Robert A. Merhige
ROBERT A. MERHIGE
United States District Judge
Date: JUNE 25, 1976
86
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
RICHMOND DIVISION
Civil Action No. 76-0297-R
ASSOCIATED DRY GOODS CORPORATION, PLAINTIFF
Vv.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
(E.E.0.C.), and ETHEL B. WALSH, individually and
as “Acting Chairman,” and permanent Vice Chairman
of the E.E.0.C., DANIEL E. LEACH, individually and as
Member of the E.E.O.C., CoLsTON A. LEwIs, indi-
vidually and as Member of the E.E.0.C., RAYMOND L.
TELLES, individually and as Member of the E.E.O.C.,
ALVIN L. GOLUB, individually and as Acting Executive
Director of the E.E.0.C., ABNER W. SIBAL, individually
and as General Counsel of the E.E.0.C., EDUARDO
PENA, JR., individually and as Director of Compliance
of the E.E.0.C., and EUGENE V. NELSON, individually
and as District Director, Pittsburgh, Pennsylvania,
District Office, of the E.E.0.C., DEFENDANTS
ANSWER
Ethel Bent Walsh, Acting Chairman of the defendant
Equal Employment Opportunity Commission and _ per-
manent Vice Chairman, on behalf of the Commission and
herself in her official capacity, and individually, and each
of the other defendants, each in their official capacity
and individually, for their answer to the complaint, re-
spectfully allege:
1. Defendants admit each and every allegation of
Paragraph 1 of the Complaint.
2. Defendants deny each and every allegation of
Paragraph 2 of the Complaint.
3. Defendants deny each and every allegation of
Paragraph 3 of the Complaint. The Complaint does not
set forth any facts to warrant the conclusion that there
87
is such an amount ($10,000) involved, and Defendant
denies the jurisdiction of the Court in this case.
4. and 5. Defendants are without knowledge or infor-
mation sufficient to form a belief as to the truth of the
allegations contained in Paragraphs 4 and 5 of the Com-
plaint.
6. Defendants deny each and every allegation of
Paragraph 6 of the Complaint except that Defendants
admit that the Commission is an agency of the Federal
Government created under § 705 of the Civil Rights Act
of 1964, as amended, 42 U.S.C. § 2000e-4.
6(a) Defendants admit each and every allegation of
Paragraph 6(a) of the Complaint.
6(b) Defendants admit that the Commission has its
principal offices in the City of Washington, District of
Columbia. Defendants deny that the Commission’s prin-
cipal place of business is in the City of Washington,
District of Columbia. The defendant Commission has
offices in 32 cities spread throughout the continental
limits of the United States. For a listing see 29 C.F.R.
§ 1610.4(c).
6-1(a) (b) and (ce) Defendants admit each and every
allegation of paragraph 6-1(a), (b), and (ec) of the Com-
plaint except that Alvin L. Golub is not the Acting Ex-
ecutive Director but the Deputy Executive Director.
6-1(d). Defendants deny the allegations of paragraph
6-1(d) of the Complaint.
7. Defendants deny that Alice M. Corvino filed a sex
discrimination charge against Horne’s on July 25, 1973.
Defendants otherwise admit each and every allegation of
Paragraph 7 of the Complaint.
8. Defendants admit each and every allegation of
Paragraph 8 of the Complaint except that Defendants
deny that Alice M. Corvino filed her charge on July 25,
1973.
9. Defendants admit each and every allegation of
Paragraph 9 of the Complaint.
10. Defendants admit each and every allegation of
Paragraph 10 of the Complaint.
11. Defendants deny each and every allegation of
the first sentence of Paragraph 11 of the Complaint. The
88
attorney, Louis B. Kushner, represented, on February 25,
1974, the seven charging parties whose cases were being
investigated by the Defendant Commission. T': Feb-
ruary 25, 1974, letter described in the Compia:nt was
inadvertently sent to Mr. Kushner. With regard to the
second and third sentences of Paragraph 11 of the Com-
plaint, the Defendants are without knowledge or infor-
mation sufficient to form a belief as to the truth of the
allegations contained therein.
12. The Defendants deny each and every allegation
of Paragraph 12 of the Complaint except that the De-
fendant Commission admits that it attempted to conduct
an investigation of Joseph Horne Company during the
week of March 4, 1974, and that the agents for Joseph
Horne Company refused to allow the investigation to pro-
ceed and refused to allow witnesses to be interviewed.
18. and 14. Defendants admit each and every allega-
tion of Paragraphs 13 and 14 of the Complaint.
15. Defendants deny each and every allegation of
Paragraph 15 of the Complaint except that Defendant
Commission admits that its Pittsburgh District Director
sent a letter to Robert Lewis, Esquire dated May 3, 1974.
16. Defendants admit each and every allegation of
the first sentence of Paragraph 16 of the Complaint. De-
fendants deny each and every allegation of the second
sentence of Paragraph 16 of the Complaint.
17. Defendants admit each and every allegation of
Paragraph 17 of the Complaint.
18. Defendant Commission admits that its Associate
General Counsel sent a letter to Robert Lewis, Esquire,
dated July 12, 1974, and that such letter appears at
Exhibit H of the Complaint. Defendants deny each and
every other allegation of Paragraph 18 of the Complaint.
19. and 20. Defendants admit each and every allega-
tion of Paragraphs 19 and 20 of the Complaint.
21. Defendants admit each and every allegation of
the first and third sentences of Paragraph 21 of the
Complaint. Defendants are without knowledge or infor-
mation sufficient to form a belief as to the truth of the
allegations contained in the second sentence of Paragraph
21 of the Complaint.
89
22. and 23. Defendants deny each and every allega-
tion of Paragraphs 22 and 23 of the Complaint.
24. See previous answers 1-23.
25. Defendants admit that the Commission has a regu-
lation numbered 1601.20, found at 29 C.F.R. § 1601.20.
Defendants deny that Plaintiff has accurately set forth
such regulation at Paragraph 25 of the Complaint.
26(a). Defendant Commission admits that it promul-
gated its regulation § 1610.17(d) in the Federal Register.
It is codified at 29 C.F.R. § 1610.17(d). Defendants deny
each and every other allegation of Paragraph 26(a) of
the Complaint.
26(b). Defendants admit each and every allegation of
Paragraph 26 (b) of the Complaint.
27. Defendants deny each and every allegation of Para-
graph 27 of the Complaint.
28. Defendants admit each and every allegation of
Paragraph 28 of the Complaint.
29. and 30. Defendants deny each and every allega-
tion of Paragraphs 29 and 30 of the Complaint.
31. See answers to Paragraphs 1-27.
32, 33, 34, and 35. Defendants deny each and every
allegation of Paragraphs 32, 33, 34 and 35 of the
Complaint.
36. See answers to Paragraphs 1-26.
37. Defendants deny each and every allegation of
Paragraph 37 of the Complaint.
38. See answers to Paragraphs 1-26.
39. Defendants deny each and every allegation of
Paragraph 39 of the Complaint.
40. See answers to Paragraphs 1-26 of the Complaint.
41. and 42. Defendants deny each and every allega-
tion of Paragraphs 41 and 42 of the Complaint.
43. See answers to Paragraphs 1-26 of the Complaint.
44, 45, 46, 47, 48, and 49. Defendants deny each and
every allegation of Paragraphs 44, 45, 46, 47, 48, and 49
of the Complaint.
90
WHEREFORE, Defendants pray that this Court deny
the relief requested by Plaintiff.
/s/
Respectfully submitted,
ABNER W. SIBAL
General Counsel
CONSTANCE L. DUPRE
Associate General Counsel
Legal Counsel Division
Anthony J. De Marco
ANTHONY J. DE MARCO
Attorney for Defendants
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION
2401 E Street, N.W.
Washington, D.C. 20506
(202) 634-6460
Assistant United States Attorney
U.S. Post Office Bldg.
P.O. Box 1257
Richmond, Virginia 23210
91
CERTIFICATE OF SERVICE
This is to certify that a copy of the foregoing Answer
has been forwarded to plaintiff’s Counsel by first class
mail, postage prepaid at the following addresses:
Roger S. Kaplan, Esq.
Jackson, Lewis, Schnitzler & Krupman
251 Madison Avenue
New York, New York 10016
Hill B. Wellford, Esq.
Hunton and Williams
P.O. Box 1535
Richmond, Virginia 23210
/s/ Anthony J. De Marco
ANTHONY J. DE MARco
Attorney for the Defendants
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION
2401 E Street, N.W.
Washington, D.C. 20506
(202) 634-6460
Date: September 22, 1976
92
IN THE
UNITED STATES DISTRICT COURT
FOR THE
WESTERN DISTRICT OF PENNSYLVANIA
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
APPLICANT
vs.
JOSEPH HORNE COMPANY, a division of
Associated Dry Goods Corporation, RESPONDENT
ORDER
AND NOW, this 28th day of September, 1976, for the
reasons stated in the foregoing Memorandum,
IT IS ORDERED that the respondent’s motion to trans-
fer the above-captioned action to the United States Dis-
trict Court for the Eastern District of Virginia, Rich-
mond Division, be and the same is hereby granted, and
that the respondent’s motion to grant costs and attorney’s
fees be and the same is hereby denied, each party to
bear its own costs of the proceedings in this court.
/s/ [{Illegible]
C.D J.
ee Counsel of Record
93
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
RICHMOND DIVISION
Civil Action No. 75-029-R
ASSOCIATED DRY Goops CORPORATION, PLAINTIFF
a)
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, ET AL.,
DEFENDANTS
PLAINTIFF’S INTERROGATORIES
TO DEFENDANTS
TO: Anthony J. DeMarco, Esq.
Counsel’s Office
Equal Employment Opportunity Commission
2401 E Street, N.W.
Washington, D.C. 20506
PLEASE TAKE NOTICE that pursuant to F.R. CIV.
P. Rule 33 Defendants are hereby requested to serve
upon Plaintiff’s attorneys, Jackson, Lewis, Schnitzler &
Krupman, by Roger S. Kaplan, and Hunton & Williams,
by Hill B. Wellford, Jr., at their offices located at 261
Madison Avenue, New York, New York 10016, and 707
East Main Street, Richmond, Virginia 23212, respec-
tively, answers in writing, separately and under oath, to
the following interrogatories, on or before January 12,
1977.
In answering these interrogatories, furnish all infor-
mation available to you, including information in the
possession of your attorneys, or their investigators, and
all persons acting in your behalf and not merely such
information known of your own personal knowledge.
If you cannot answer the interrogatories in full after
exercising due diligence to secure the information, so
state and answer to the extent possible, specifying your
inability to answer the remainder and stating whatever
94
information or knowledge you have concerning the un-
answered portions.
The interrogatories which follow are to be considered
as continuing, and you are requested to provide, by way
of supplementary answers thereto, such additional in-
formation as you or any other persons acting on your be-
half may hereafter obtain which will augment or other-
wise modify your answers now given to the interroga-
tories below. Such supplementary responses are to be
filed and served upon Defendant within thirty (30) days
after receipt of such information.
As used herein, the following terms shall have the
meanings indicated below:
a. “Person” means natural persons, corporations, part-
nerships, sole proprietorships, unions, associations, fed-
erations, or any other kind of entity.
b. “Document” means any printed, typewritten, hand-
written, or otherwise recorded matter of whatever char-
acter, including, but without limitation, letters, purchase
orders, memoranda, telegrams, notes, catalogues, bro-
chures, diaries, reports, calendars, inter-office communi-
cations, statements, announcements, photographs, tape re-
cordings, motion pictures and any carbon or photographic
copies of any such material if Plaintiff does not have
custody or control of the original. If any document re-
quested to be produced was but is no longer in Plaintiff’s
possession or control or is no longer in existence, state
whether it is: (a) missing or lost, (b) destroyed, (c)
transferred voluntarily or involuntarily to others and
if so, to whom, or (d) otherwise disposed of; and in
each instance explain the circumstances surrounding and
authorization for such disposition thereof and state the
approximate date thereof.
In each question wherein you are asked to “identify”
a person, state with respect to such persons: (a) his
name, (b) his last known home address and telephone
number, (c) his business address and telephone num-
ber, (d) the name and address of his employer, and (e)
his relationship to you.
As used herein, EEOC or Commission refers to the
Defendant Equal Employment Opportunity Commission,
95
and its members, officers, agents, representatives or em-
ployees, including the individual named defendants, as
indicated from the context of the interrogatory.
1. Identify all persons who have filed charges with
the Pittsburgh District Office of the EEOC against the
Joseph Horne Company division of Plaintiff since ;
1972. For each person so identified, state:
a. The date on which that person’s charge was filed.
b. The EEOC Case Number assigned to that per-
son’s charge.
ce. The nature of the employment discrimination al-
leged in that person’s charge (e.g., sex, race,
national origin, ete.).
2. For each charge identified in answer to Interroga-
tory No. 1, state whether a case file was prepared by
the EEOC pertaining to an investigation thereof.
3. For each file listed in response to Interrogatory
No. 2, state the name, address, and official title of the
EEOC member, officer, employee or agent having custody
or control over such file.
4. For each file listed in response to Interrogatory
No. 2, state:
a. Whether the file was examined at any time by
any person or persons, other than a member,
officer, or employee of the EEOC.
b. The identity of such person or persons, includ-
ing the relationship of such person or persons to
any charging party and any organizational, pro-
fessional or business affiliation of person or
persons.
ce. The date(s) on which such examination occurred.
The purpose(s) asserted by the person or per-
sons for conducting the examination (s).
e. The identity of the EEOC member, officer, or
employee to whom this purpose or purposes was
or were communicated, the date thereof, and
5.
96
whether such communication was oral or in
writing.
Whether the EEOC member, officer, or employee
requested proof of the genuineness of the pur-
pose or purposes asserted prior to permitting such
examination, and of the person’s relationship to
the charging party whose file was sought to be
examined.
Whether the person seeking to examine such file
provided proof as aforesaid, and if so, a descrip-
tion of its nature, and whether it was oral or in
writing.
The identity of each and every document con-
tained in the file, and whether a table of contents
exists for such file.
Whether each person identified in response to
paragraph “b” above executed an “agreement of
non-disclosure,” on a form provided therefore,
prior to examining a file.
(1) If not, identify the person or persons in-
volved and the file which was examined.
(2) State the reason why an examination of the
file was permitted without prior execution
of the agreement.
Identify each file, or portion thereof (naming in-
dividual documents), listed in response to Interrogatory
4, which has been reproduced by holography, or xero-
graphy or similar means, at the request of any person
other than an EEOC member, officer or employee.
a.
b.
State the date on which such reproduction was
made.
Identify the person at whose request the repro-
duction was made.
State whether the copies made were provided to
person requesting them.
97
6. State whether any of the files listed in response
to Interrogatory No. 4 has ever been removed from the
Pittsburgh District Office of the EEOC by, or at the
request of a person other than a Commission member,
officer or employee. If so:
a. Identify each file thus removed, and the date the
removal occurred.
b. Identify the person
(1) who removed the file, and,
(2) requested such removal
c. State whether any documents were taken out of
the file prior to such removal, and if so, identify
them.
7. State whether the Pittsburgh District Office main-
tains or has maintained “EEO-1” reports, or copies
thereof, filed by the Joseph Horne Company division of
Plaintiff. If so:
a. State the years for which such reports are or
have been maintained.
b. State whether any person has examined such
reports.
ec. If so:
(1) Identify the year of the report examined,
and
(2) Identify the person who examined it.
8. State whether the EEOC has ever offered to trans-
mit case file information to any person outside the
agency, rather than solely in response to an express re-
quest therefor by such persons. If so:
a. Identify the persons to whom the offer was made.
b. Identify the person making the offer.
c. State the date on which the offer was made.
d
. Identify the case and information so transmitted.
98
9. State whether the Pittsburgh District Office of the
EEOC maintains a log or register for persons who ex-
amine offered files. If so:
a.
b.
Cc.
Identify the District Office officer or employee
responsible for maintaining this document.
State what information is recorded in this docu-
ment.
The exact nature of the entries which relate to
the files identified in Interrogatories Nos. 1-7.
10. State whether the Pittsburgh District Office of
the EEOC at any time provided assistance to any per-
sons presently involved in litigation against the Joseph
Horne Company alleging violations of Title VII of the
Civil Rights Act of 1964, as amended, by the division
of Plaintiff. If so:
a.
Identify the persons to whom assistance was
provided (including the person’s or persons’ at-
torneys, where applicable) .
Describe in detail the nature of the assistance
provided.
Unless covered in answer to paragraph “b” above,
state specifically whether such assistance in-
cluded:
(1) Engaging in legal research
(2) Providing copies of pleadings or papers from
other litigation
(83) Drafting pleadings, motions, interrogatories,
or other discovery requests.
(4) Drafting briefs.
identify the EEOC rembers, officers or employees
who provided such assistance.
State, in each case the date or dates on which
such assistance was provided.
99
Yours, ete.,
JACKSON, LEWIS, SCHNITZLER
& KRUPMAN
261 Madison Avenue
New York, N.Y. 10016
(212) 697-8200
ROGER S. KAPLAN
ROBERT LEWIS
HUNTON & WILLIAMS
707 East Main Street
Richmond, Virginia 23212
(804) 788-8200
HILu B. WELLForRD, JR.
Attorneys for Plaintiff
100
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
RICHMOND DIVISION
Civil Action No. 75-029-R
ASSOCIATED Dry GOODS CORPORATION, PLAINTIFF
Vv.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, ET AL.,
DEFENDANTS
DEFENDANT’S ANSWERS TO
PLAINTIFF’S INTERROGATORIES
1. Following is a list of all persons who have filed
charges with the Pittsburgh District Office, Equal
Employment Opportunity Commission, against the
Joseph Horne Company, November 16th, 1971 to
present. The EEOC Charge No., date of receipt of
charge and nature of employment discrimination al-
leged is indicated.
(1) Loeal 86, Amalgamated Clothing Workers—
TPI4-0478—December 2, 1973—-sex.
(2) John Novak—034-50563-2—December 10, 1974
—national origin—file destroyed—October 22,
1975.
(3) Jean Paslowski—TPI2-0512—February 9, 1972
—file destroyed—August 5, 1975.
(4) Service Employees International Union Local
29—034-60952-2—February 13, 1976—race—
Black.
(5) Ronald Sudduth—034-50468-6—November 7,
1974—race—Black.
(6) Joyce Gray—034-50862-2—March 25, 1975—
race and sex.
(7)
(8)
(9)
(10)
(11)
(12)
(13)
(14)
(15)
(16)
(17)
(18)
(19)
(20)
101
Demetre Geronymo—TPI3-0137—September 1,
1972—national origin.
Philip R. Williams—TPI2-0555—December 4,
1974—race—Black.
Mary Kritko—034-60078-3—July 24, 1975—
sex and Section 704a Retaliation.
Alice Corvino—TPI3-0774—May 2, 1973—sex.
Marsue Dingley—TPI3-0836—June 6, 1973—
sex.
Katherine Murray—TPI2-0454—November 16,
1971—race—Black.
Lois Blake—TPI2-0324—February 15, 1972—
sex.
Mary Kritko—TPI2-0484—January 17, 1972—
sex.
Marlene Denk—TPI2-0562—February 28, 1972
—sex.
Helen Pollock—TPI2-0323—January 3, 1972—
Sex.
Mary C. Smith—034-50753-7—February 18,
1975—Section 704a Retaliation.
Mary C. Smith—TPI2-0984—June 29, 1972—
sex.
Howard E. Watts, Jr.—TPI3-0007—July 11,
1972—-sex and Section 704a Retaliation.
Carol R. DiMaio—TPI2-0983—July 15, 1972—
sex and Section 704a Retaliation.
. Case files have been either completely or partially
prepared for all charges identified in answer to in-
terrogatory No. 1. Two of those files have been
destroyed, as indicated, pursuant to Commission
policy regarding disposal of files which have been
administratively closed.
102
. Each file listed above which is in existance is in the
custody of Eugene V. Nelson, District Director,
2038A Federal Building, Pittsburgh, Pennsylvania
15222.
. The use of EEOC Form 167, “Agreement of Non-
Disclosure’, was put into effect by the Pittsburgh
District Office in June 1975 subsequent to receipt
of that form in the Pittsburgh office from Head-
quarters. Prior to June of 1975 Charging Party
counsel and Respondent counsel were given access
to their client’s files without signing such agree-
ments. The following consists of answers to in-
terrogatories 4(a) through 4(g) :
(1) TPI4-0478—File has not been examined.
(2) 034-50563—File has not been examined.
(3) TPI2-0512—File has not been examined.
(4) 034-60952-2—File has not been examined.
(5) 034-50468-6—File has not been examined.
(6) 034-50862-2—File has not been examined.
(7) TPI3-0137—File was examined on April 8th,
1975 by James R. Williams, Esq., Jackson,
Lewis, Schnitzler and Krupman. File was also
examined b
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