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

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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

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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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