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November 7, 1980


The opinion of the court was delivered by: Grady, District Judge.


Plaintiff, the Equal Employment Opportunity Commission ("the Commission"), has filed this action against Sears, Roebuck and Company ("Sears") alleging sex discrimination under Section 703 of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e-2, and equal pay violations under Section 6(d) of the Fair Labor Standards Act ("Equal Pay Act of the FLSA"), 29 U.S.C. § 206(d). These violations include discriminatory practices in the recruitment, selection, assignment, transfer, training and promotion of women at Sears facilities "in each and every state of the Continental United States." In addition, it is alleged that Sears has paid female employees lower wages for work requiring equal skill, effort and responsibility at Sears establishments "throughout the United States." Extensive injunctive relief and monetary damages, in the form of back pay awards, are sought on these claims. We note that four other Title VII actions, alleging "race" and "national origin" discrimination at selected facilities, were simultaneously brought against Sears by the Commission in different jurisdictions.*fn1 Two of these suits have now been dismissed, with a third suit proceeding to a trial on the merits.*fn2

Defendant Sears has moved to dismiss this action on the basis of the Commission's failure to satisfy certain alleged statutory prerequisites to suit, abusive practices in the investigation of Sears, and res judicata as to the equal pay claims under the provisions of the FLSA. For the following reasons, we will deny defendant's motion to dismiss.*fn3

Facts and Legal Standard

Before stating the factual allegations underlying defendant's motion to dismiss, it is appropriate to set out the legal standard to be applied. For purposes of this motion, inasmuch as only limited discovery has occurred, we will take the unusual step of resolving factual disputes in the defendant's favor. We have, in essence, adopted a "worst case" analysis to determine whether any legal basis can be stated for the dismissal of this action on issues collateral to the merits.*fn4 If in fact such a legal basis exists, we would then allow additional discovery to develop it fully.

The Commission's investigation of Sears officially began with the filing of EEOC Chairman William H. Brown's charge against Sears on August 30, 1973. Verification of the charge, as required by 42 U.S.C. § 2000e-5(b), was not effected until September 11, 1973, by which time, according to Sears, Brown's statutory term of office had expired and his power to verify had lapsed.

Prior to the Commission's charge, roughly in mid-1973, a task force was established to handle the investigation of Title VII violations by Sears. Personnel were selected from the National Programs Division ("NPD") of the Office of Compliance of the Commission.*fn5 Attorney David A. Copus, as Deputy Chief and later Acting Director of this body,*fn6 selected the staff. Mr. Copus clearly played a most important role in several phases of the Sears investigation prior to his April 11, 1977, departure from the Commission. His involvement included the signing of the "Notice of Charge" sent to Sears, the general supervising of the NPD Sears staff, periodic participation directly in pre-decision negotiations, and ultimately the writing (or some control over the writing) of the Commission's reasonable cause decision.*fn7 Moreover, it is alleged that Mr. Copus drafted the rules pursuant to which the NPD would process the charge, vesting considerable authority in himself in the overall coordination of the investigation with the district officers and the Office of General Counsel.

While employed at the Commission during the period of November 1973 to September 1974, Mr. Copus was a member of the Board of Directors of the National Organization for Women Legal Defense and Education Fund ("NOW-LDEF"), the litigating arm of the National Organization for Women ("NOW"). In May 1974, NOW mounted a publicity campaign against Sears, culminating in the adoption of a resolution at its Seventh National Conference in Houston calling for "action both nationally and locally against Sears to insure their compliance with equal employment opportunity laws." At approximately the same time a document entitled "A Litigation Strategy for NOW" was released, bearing Mr. Copus' name, in which it was stated that NOW must identify "legal issues, in areas of NOW priorities, which could be developed into precedent setting litigation, on a national level" and must continue "the current program of identifying and pooling all of the legal talent in NOW . . ."

In this same document also appeared the name of Whitney Adams, who during the period of January-June 1974 was employed as a special assistant to then EEOC Chairman John H. Powell, Jr. Ms. Adams, in turn, was a member of the Board of Directors of NOW during the period February 1973-October 1975. While there is little indication*fn8 that Ms. Adams was directly involved in the Sears investigation during her tenure at the Commission, she did not hesitate to make her views known in 1974 on the prosecution of Sears for Title VII violations. In a NOW questionnaire, predating the May 1974 Houston convention, Adams as a candidate for a NOW directorship post made the following comment: Under the heading of "Supports Action Orientation for NOW" appeared "Supports action . . . Nat'l targets with sim. actions as Sears, AT&T actions." As part of Adams' "Expertise in Feminist Issues/Actions" was the notation "Special Assistant to Chair, EEOC."

Beginning in May 1974, NOW filed a series of formal charges of employment discrimination against Sears. These charges were reviewed by Copus and other personnel of the NPD task force. These charges were filed by Copus as "suitable" for consolidation with the Brown charge.*fn9

  In late May 1974, EEOC Chairman Powell, apprised of Copus'
seat on the NOW-LDEF Board, requested an opinion on the
propriety of such activity from William Carey, EEOC General
Counsel. On July 23, 1974, Mr. Carey responded, recommending
Copus' terminating his NOW-LDEF directorship but not his post
at the Commission or his involvement in the Sears
investigation. This conclusion was arrived at because of the
"sensitive nature of our [the

  EEOC's] responsibility under Title VII," and because
  NOW-LDEF is put in a favored position by having
  him [Copus] serve on their Board of Directors
  even if in matters involving employment
  discrimination which come before the board for
  consideration, he declines to participate. His
  mere presence on the board would give the public
  the appearance of a conflict of interest. To
  further demonstrate this point, Mr. Copus is in
  direct contact with respondents in seeking
  information. . . .

Further, the "activist nature of NOW," including its advocacy before the Commission, was perceived as a source of "embarrass[ment] to the Commission" if Copus continued his dual service. Still, the proposed disposition of the NOW-LDEF directorship was not intended in any way to limit Copus' membership in NOW or "active" participation in activities of the organization distinct from the "policy-making authority of a director."*fn10 Copus withdrew from service on the NOW-LDEF Board on September 6, 1974.

The Commission's decision, 77-21, was handed down on April 19, 1977, some 18 days after Copus left the Commission. In a 2-1 vote, reasonable cause was found to charge Sears with employment practice violations under Title VII.

Prior to the issuance of the decision, Commission officials apparently notified Sears of their intention to release information on the Sears investigation, including the Commission's decision, to individual charging parties. In response, Sears filed an action for declaratory and injunctive relief in the United States District Court for the District of Columbia to prohibit the dissemination of such information and to "enforce the confidentiality requirements of Title VII." Judge Gesell issued a temporary restraining order on June 1, 1977, enjoining the release of the Commission decision and certain other information. See Sears, Roebuck and Co. v. EEOC, 435 F. Supp. 751 (D.D.C. 1977), aff'd in part and rev'd in part, 581 F.2d 941 (D.C. Cir. 1978).*fn11 On about July 8, 1977, three copies of the Commission's decision were discovered missing from the Commission offices in Washington. Two of these copies later surfaced in the office of NOW's Chicago chapter and the Women's Equity Action League in Dallas. The third copy has never turned up. The source(s) of the leak were never uncovered. It is to be noted, however, that no finding of contempt of the injunction ever issued from District of Columbia District Court, nor is there any indication that such an order was sought.

Following the Commission's decision, conciliation efforts commenced on October 19, 1977. On February 27, 1978, during the pendency of these discussions, Sears petitioned the Commission for a reconsideration of the reasonable cause decision. The motion was denied on March 28, 1978. Negotiations continued until November 29, 1978, when they were terminated by the Commission. Bad faith is alleged against the EEOC for refusing to separately negotiate the individual charges (consolidated with the Brown charge) and the `sex only' charges for settlement.

This lawsuit was filed by the Commission on October 22, 1979.*fn12

Summary of Grounds for Dismissal

Sears stakes its motion to dismiss on eight grounds, which may appropriately be classified into three groups. First, two claims focus on the Commission's failure to comply with certain alleged statutory prerequisites to suit: verification and conciliation. With respect to verification, Sears argues that the Brown charge was not properly verified and any effort to cure this defect was untimely because Brown's term of office had expired. The failure of the Commission to conciliate in good faith, in particular by refusing to consider settlement on other than a nationwide basis, is said to be an alternative bar to this court's jurisdiction.

Alleged improprieties and abusive practices in the Sears investigation serve as the common denominator for the next set of dismissal grounds. First and foremost are the real or apparent conflicts of interest flowing, inter alia, from (a) Copus' sitting on the Board of Directors of NOW-LDEF while ostensibly leading the Commission's investigation of Sears, (b) Adams' sitting on the Board of Directors of NOW while simultaneously serving as special assistant to the EEOC Chairman, and (c) the alleged conjugal relationship between Copus and Adams. Furthermore, it is contended that the Commission engaged in a "stigmatizing" publicity campaign against Sears, running afoul of the Due Process and Bill of Attainder Clauses of the United States Constitution. As additional grounds, the Commission's summary refusal to grant a rehearing on the reasonable cause determination and its alleged violation of its own regulations are said to constitute due process deprivations.

As a wholly separate ground, Sears argues that any injunctive and back pay relief under the equal pay provisions of the FLSA and Title VII is barred under principles of res judicata and collateral estoppel. Such principles purportedly spring out of the adjudication of a nationwide equal pay injunction in Usery v. Sears, Roebuck and Co., 421 F. Supp. 411 (N.D.Iowa 1976), supplementing Brennan v. Sears, Roebuck and Co., 410 F. Supp. 84 (N.D.Iowa 1976).

Observations on the Commission's Handling of the Sears Investigation

Prior to engaging in a more detailed review of the defendant's contentions, it is appropriate to comment generally on the handling of the Sears investigation by the Commission. Aside from our "worst case" analysis, it appears that certain abuses by the Commission are not controverted.*fn13 High on this list and ripe for comment are the actions or perceived actions of David Copus. While not a voting commissioner, Copus' involvement in the Sears investigation was significant, and he exercised extremely poor judgment in accepting the directorship on the NOW-LDEF Board. Despite plaintiff's protestations to the contrary, there was sufficient guidance in the existing federal regulations*fn14 to have alerted Copus to an apparent conflict of interest by affiliating himself with a network of organizations*fn15 concerned with "targeting" Sears for Title VII violations. This "targeting" approach included a massive search for victims and the filing of charges before the Commission. Applying the regulatory language, it is inconceivable that Copus did not find his "independence" was undermined or the "confidence of the public" eroded by his connection with an interest group well-known for its advocacy before the Commission.

With respect to Ms. Adams, while she was not involved in the Sears investigation during her tenure at the Commission,*fn16 her mere presence on the NOW Board created an appearance of partiality and special deference to NOW-related petitions before the Commission. The public has the right to expect the staff of the Chairman of the Equal Employment Opportunity Commission to be free of the appearance of partiality.

Copus and Adams are not the only ones subject to criticism. The Commission has taken an almost cavalier approach to this matter, initially characterizing Copus' role in the Sears investigation as that of a mere "staff member" and his ties to the NOW organizations as "exceedingly insubstantial." While later recognizing that his ties were "questionable" and even "regrettable," the Commission too easily dismisses these concerns as being obviated by "more comprehensive guidance" procedures to be implemented "in the future." The Commission should not have allowed Copus to continue working on the Sears matter once his NOW-LDEF involvement was disclosed. His resignation from the NOW-LDEF Board did nothing to lessen the "appearance of impropriety" or the "compromising [of the Commission's] public image."*fn17 The decision to allow Copus to continue as a key figure in the Sears investigation turns on its head the high duty of a government attorney to strive toward fairness, independence and impartiality in official proceedings. See American Cyanamid Co. v. FTC, 363 F.2d 757, 767 (6th Cir. 1966); United States v. Braniff Airways, Inc., 428 F. Supp. 579, 583 (W.D.Tex. 1977).

  Within the next few weeks the Equal Employment
  Opportunity Commission will establish a new,
  40-person unit to do high-powered nationwide
  investigations of the employment practices of the
  country's largest companies. Both clerical and
  professional positions will be available . . . .
  . . . The new group will use the AT&T case . . .
  as its model to go after the largest
  discriminators in the nation. The program
  promises to be dynamite!
  Anyone interested should contact David Copus,
  EEOC, 1800 G St., N.W., Washington, D.C. 20506.
  Phone: 343-3058 (office) and 965-2176 (home).
  Keep calling both numbers; time is of the

This notice was apparently placed by Copus. It has not been established whether he had the Commission's approval. Although not mentioned by name, it seems likely that Sears is one of the companies referred to in the ad. Copus used extremely poor judgment in placing such an ad in a newsletter of one of the principal organizations seeking action against Sears. The appearance of partiality on the part of the Commission is palpable.

Despite these improprieties by the EEOC, we do not find the extreme sanction of dismissal to be warranted in this case.*fn18 We have been cited no case where dismissal was ordered because of similar misconduct on the part of the EEOC. The principal cases cited by defendant involve the approval of agency action by the court, Air Transport Association of America v. Hernandez, 264 F. Supp. 227 (D.D.C. 1967), NLRB v. Autotronics, Inc., 596 F.2d 322 (8th Cir. 1979); or even the "sanctioning [of] such [agency] abuse." SEC v. Wheeling — Pittsburgh Steel Corp., 482 F. Supp. 555 at 565 (W.D.Pa. 1979), reversed 49 U.S.L.W. 2164 (3rd Cir. Aug. 27, 1980). Courts have dismissed Title VII claims only where egregious conduct has occurred: A personal and pecuniary "vendetta," campaign, EEOC v. First Alabama Bank of Birmingham, 440 F. Supp. 1381, 1385 (N.D. Ala. 1977), affirmed, 611 F.2d 132 (5th Cir. 1980); actual harassment and a "fishing expedition," EEOC v. Anchor Continental, Inc., 74 F.R.D. 523, 528 (D.S.C. 1977); but see EEOC v. First National Bank of Jackson, 614 F.2d 1004 (5th Cir. 1980) (harassment does not state affirmative defense to Title VII claim); extreme case of latches, EEOC v. C&D Sportswear Corp., 398 F. Supp. 300 (M.D.Ga. 1975), or no attempt at conciliation, EEOC v. Westvaco Corp., 372 F. Supp. 985 (D.Md. 1974).

The Fifth Circuit Court of Appeals in EEOC v. First National Bank of Jackson, supra, recently held that malicious prosecution or harassment, even though reprehensible, is insufficient as a matter of law to state an affirmative defense to a Title VII action. The allegations raised by the defendant bank in their "counterclaim" in Jackson are similar to Sears' allegations in the instant case:

  [T]he purpose of the EEOC's lawsuit was to
  "defraud, vex, and harass" the bank and other
  employers "maliciously and for ulterior purposes"
  by means of "unlawfully' conceived, groundless,
  vexatious, and fraudulent charges."

614 F.2d at 1007. The court broadly defined malicious prosecution to include an action "begun in malice, without probable cause to believe it can succeed, . . . for the mere purpose of vexation or injury." Id. at 1007, n. 3. In reversing the district court's dismissal of the Title VII suit,*fn19 the Court of Appeals stated:

  Assuming that the bank's allegations of malicious
  prosecution are meritorious, they could not
  constitute an affirmative defense to alleged Title
  VII violations. . . . The so-called affirmative
  defense of malicious prosecution and harassment did
  not relate to the primary issue in this Title VII
  action-whether the bank unlawfully discriminated
  against blacks and black males.

Id. at 1008 (emphasis in original). Accord, EEOC v. Sears, Roebuck and Co., 490 F. Supp. 1245, 1254 (M.D.Ala. 1980) [hereinafter cited as "Sears-Alabama"] (summary judgment on the ground that the EEOC engaged in misconduct to harass Sears held "inappropriate," citing EEOC v. First National Bank of Jackson). See also SEC v. Geotek, [1974-1975 Transfer Binder] Fed. Sec.L.Rptr. 97643, 97646 (N.D.Cal., March 28, 1975) (defenses of "lack of good faith in bringing, and lack of good grounds for, the SEC action" were of "questionable validity").

In the instant case a trial do novo of the Title VII claims*fn20 against Sears in this court will attenuate any taint flowing from the conduct of Copus, Adams and the Commission generally.*fn21 We note that a majority of the circuit courts have held that it is not reversible error to discount or even exclude the administrative record and findings of the Commission in adjudicating a Title VII claim. Francis-Sobel v. University of Maine, 597 F.2d 15, 18 (1st Cir. 1979) (exclusion not error), cert. denied, 444 U.S. 949, 100 S.Ct. 421, 62 L.Ed.2d 319; Georator Corp. v. EEOC, 592 F.2d 765, 769 (4th Cir. 1979) (exclusion of record not error). Accord, Cox v. Babcock and Wilcox Co., 471 F.2d 13, 15 (4th Cir. 1972); Heard v. Mueller Co., 464 F.2d 190, 194 (6th Cir. 1972) (exclusion not error, within the sound discretion of the district court); Walton v. Eaton Corp., 563 F.2d 66, 75 (3d Cir. 1977) (exclusion of EEOC findings of fact and determination on merits not error, but district court admitted certain documents and permitted EEOC investigator to testify); Gillin v. Federal Paper Board Co., 479 F.2d 97, 99-100 (2d Cir. 1973) (EEOC investigative report excluded, but district court permitted investigator to testify). But see Bradshaw v. Zoological Society of San Diego, 569 F.2d 1066, 1069 (9th Cir. 1978) (error to exclude, but weight determined by district court); Smith v. Universal Services, Inc., 454 F.2d 154, 157-158 (5th Cir. 1972) (error to exclude, but report nonbinding and to be accorded weight deemed appropriate by the district court). Nor can we ignore on this motion to dismiss the explicit policy choice of Congress to eliminate discrimination. Alexander v. Gardner-Denver Co., 415 U.S. 36, 47, 94 S.Ct. 1011, 1019, 39 L.Ed.2d 147 (1974) (Title VII policy of "the highest priority"), quoting Newman v. Piggie Park Enterprises, 390 U.S. 400, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968).*fn22

EEOC Legislative History

Because of the emphasis we place on the de novo powers of this court, it is useful to examine the statutory framework within which the Equal Employment Opportunity Commission operates.

The Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., was enacted to assure equality of employment opportunities by eliminating those practices that discriminated on the basis of race, color, religion, sex, or national origin. As part of this legislation, Congress created the Equal Employment Opportunity Commission. Prior to 1972, the EEOC acted essentially as a conciliatory agency, relying on voluntary and informal methods of dispute resolution.

In 1972 a sweeping congressional debate on the scope of the Commission's powers took place. On the one hand, it was argued that the Commission should be given cease and desist authority with limited court review to strengthen the Title VII enforcement mechanism. Among the reasons advanced for this option were: complex discrimination cases result in enormous expenditures of judicial resources; administrative tribunals are better equipped with experts and better suited to rapid resolution of issues; informal rules of evidence in administrative hearings offer less opportunity for dilatory tactics; and the existence of administrative sanctions will encourage settlements. See Legislative History of the Equal Employment Opportunity Act of 1972 Compendium, 92d Cong., 2d Sess., Committee Print of the Senate Subcommittee on Labor of the Senate Committee on Labor and Public Welfare (hereinafter cited as "Legislative History") at 70-71 (House report), 238 (remarks of Rep. Drinan), 426-428 (Senate Report), 798 (remarks of Sen. Mondale), 811-815 (remarks of Sen. Williams), and 835-837 (remarks of Sen. Humphrey). On the other hand, it was argued that the EEOC should have the ability to institute civil actions, with trial de novo authority vested in the federal district courts. The following reasons were put forward for this approach: a court is a more appropriate forum in which to resolve civil rights questions since procedural safeguards are provided; federal judges enjoy great respect; the judge is impartial; the judge can fashion a complete remedy; the federal discovery rules greatly facilitate the collection of evidence for trial; hearing examiners tend to be inadequate factfinders; administrative tribunals are less impartial, legal arguments are not always effectively brought forth, and procedural rules are virtually nonexistent; administrative tribunals are too sensitive to political winds, while courts provide greater independence. See Legislative History at 118-123 (Minority view on Hawkins Bill in House Report), 219 (remarks of Reps. Erlenborn and Railsback), 221 (remarks of Rep. Railsback), 493-496 (individual views of Sen. Dominick in Senate Rep.), 692-697 (remarks of Sen. Dominick), 837-839 (remarks of Sens. Talmadge and Chiles), 1013 (remarks of Sen. Gambrell), 1446-1447 (remarks of Sen. Hruska) and 1485 (remarks of Sen. Dominick). See also Hackley v. Roudebush, 520 F.2d 108, 123 n. 57 (D.C. Cir. 1975) (Wright, J.).

The proponents of full judicial hearings on the merits prevailed. Equal Employment Opportunity Act of 1972, Public Law 92-261, 86 Stat. 103. The consideration which prompted Congress to decide in favor of trial de novo enforcement, such as the greater procedural fairness and independence of the courts, are directly relevant to the defendant's allegations of EEOC misconduct.

Under the current enforcement scheme, the Commission has the authority to investigate charges of discrimination, to promote voluntary compliance with the requirements of Title VII, and to institute civil actions against employers or unions named in a discrimination charge. Alexander v. Gardner-Denver Co., 415 U.S. 36, 44, 94 S.Ct. 1011, 1017, 39 L.Ed.2d 147 (1974). The Commission's proceedings are nonbinding and nonadjudicative, Alexander v. Gardner-Denver, supra, at 44, 94 S.Ct. at 1017; EEOC v. Raymond Metal Products Co., 530 F.2d 590, 593 (4th Cir. 1976); EEOC v. Kimberly-Clark Corp., 511 F.2d 1352, 1361 (6th Cir. 1975); the Commission's responsibilities are "only investigative." Georator Corp. v. EEOC, 592 F.2d 765, 768 (4th Cir. 1979). See Stewart v. EEOC, 611 F.2d 679, 683-684 (7th Cir. 1979) (no determinate consequences flow from EEOC investigation, dictum). A deliberate decision was made by the Congress to not give the Commission the powers which had been "bestowed on older regulatory agencies such as the National Labor Relations Board . . . ." EEOC v. Contour Chair Lounge Co., 596 F.2d 809, 813 (8th Cir. 1979). Nor was it intended that the Commission would be entitled to the deferential "substantial evidence" or "clearly erroneous" rules of judicial review. EEOC v. Contour Chair Lounge Co., supra, at 813. Adjudication of Title VII claims was to be "the exclusive function of the courts." EEOC v. General Electric Co., 532 F.2d 359, 370 (4th Cir. 1976).

Analysis of Individual Grounds for Dismissal

A. Statutory Prerequisites to Suit

Before the Commission can institute a civil action in the federal courts, certain conditions precedent to suit must be met.*fn23 As outlined in EEOC v. Raymond Metal Products Co., 530 F.2d 590, 592 (4th Cir. 1976), there are four major stages of the Commission's investigative process:

  These steps are service of a notice of the
  charge, investigation, determination of whether
  there is reasonable cause to believe the charge
  is true, and endeavors to eliminate the alleged
  unlawful practice through conference,
  conciliation, and persuasion. The Commission can
  institute suit only if it has been unable to
  secure an acceptable conciliation agreement.

As noted, two of Sears' grounds for dismissal are directed at the Commission's alleged failure to satisfy the charge and conciliation requirements.

1. Verification of the Charge

Sears alleges that the Commission's charge was never properly verified and that this is a jurisdictional bar to this suit.*fn24 It is undisputed that Chairman Brown's charge against Sears was signed on August 30, 1973. However, the charge was not sworn to at that time. Brown subsequently verified the charge, or purported to do so, on September 11, 1973. Two issues must be resolved here: (1) Since the Brown charge was not originally under oath, could a later verification be effective?*fn25 and (2) if so, was Brown a de jure or de facto Commissioner on September 11, 1973, for purposes of amending and validating the charge?

A Title VII charge filed against an employer must be "in writing under oath or affirmation."*fn26 42 U.S.C. § 2000e-5(b). The purpose of verification is to protect the employer against the filing of frivolous claims and harassment. Stewart v. Core Laboratories, Inc., 460 F. Supp. 931, 934 (N.D.Tex. 1978); Weeks v. Southern Bell Telephone & Telegraph Company, 408 F.2d 228, 231 (5th Cir. 1969). At the same time, the congressional purpose behind the Commissioner's charge is, inter alia, to enable aggrieved persons to have charges processed under circumstances where they are unwilling to come forward publicly for fear of reprisal. See Senate Report No. 415, 92d Cong., 1st Sess. 26 (1971) [1972 Amendments to Civil Rights Act of 1964].

Few cases have discussed a Commissioner's charge, and there is little authority on the question of whether untimely verification is a bar to a suit by the Commission. Defendant relies heavily on EEOC v. Appalachian Power Co., 13 CCH Employ.Pract.Dec. ¶ 11,293 (W.D.Va. 1976), affirmed, 568 F.2d 354 (4th Cir. 1978). In Appalachian Power, then — Commissioner Brown filed an unsworn charge against an employer. The court dismissed the Commission action, finding that the verification requirement was mandatory. 13 CCH Employ.Pract.Dec. at p. 5968. The case is distinguishable, however, from the instant situation. Specifically, the court held that an improperly notarized affidavit, pleading inadvertent error in the failure to swear to the charge, filed some three years after the signing of the charge, during the course of litigation, did not cure the defect in the Appalachian charge. Id. at 5968-5969. Despite its statement that verification is mandatory, the district court left open the possibility that under certain circumstances the defect in a charge could be cured by amendment:*fn27

  The Commission has not seriously attempted to
  convince the court, either in its Memorandum or
  at oral argument that the defective affidavit
  constituted a valid amendment of the charge and the
  court does not so hold at this time.

Id. at 5969 (emphasis added). Moreover, the court discounted Commissioner Brown's eleventh hour affidavit because the Commission's reasonable cause determination "specifically rejected two of Commissioner Brown's allegations, notably hiring and training discrimination." Id. In the instant case, of course, the failure to verify was not corrected by affidavit during the course of litigation and Brown's charge was approved by the Commission on a 2-1 vote.

  [T]he Court is of the opinion that the
  verification requirement can be cured by
  amendment, even after the term of the
  Commissioner has expired, if the respondent
  [employer-defendant] is not prejudiced thereby.

Sears-Alabama, at 1252 (citations omitted).

In Sears-Alabama, the court went on to find that prejudice resulted because the EEOC issued "across-the-board, catchall pattern or practice charges against [a] nation-wide employer only to turn around and bring suit against one particular facility [Montgomery store] on limited bases and issues of discrimination." Id. at 1252. Indeed, Judge Varner characterized this charging practice as directed to "the very abuse that Congress intended to prevent" by requiring verification. Id. at 1252. Furthermore, he opined "This Court can think of no better example of a situation where the requirement of verification should be more vigorously adhered to. . . ." Id. at 1252.

The instant Sears case stands in marked contrast, however, to the Alabama suit. There was no such variance between the scope of the Commissioner's charge and the scope of the lawsuit: both the charge and the suit allege nationwide discrimination.*fn29 Nor was Sears put to the expense and effort of investigating and preparing to defend against later withdrawn general discrimination charges. Compare Sears-Alabama, at 1252. We do not find any prejudice, ...

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