Cir. 1966) ("strong conviction" and "crystallized point of
view" not grounds for disqualification).
With respect to pecuniary bias, we do not find, applying our
"worst case" analysis, any reasonable*fn50 indication of such
bias on the part of the Commission,*fn51 or more particularly
Copus, in the Sears investigation. To say that because NOW may
have a pecuniary stake in the outcome of the Sears case,*fn52
that Copus is to be infused with a pecuniary interest, as
Sears argues, is a non sequitur. Nor are we persuaded by Sears'
contention that the duty of a board member to a nonprofit
corporation automatically "deputize[s]" such person to obtain
fee-generating litigation for the corporation. (Defendant's
Memorandum and Offer of Proof, February 1, 1980, p. 3, n. 1).
We regard as relatively trivial the matter of Copus' and
Adams' alleged conjugal relationship. Sears alleges upon
information and belief that they were seen together as early
as 1973 and were observed "walking in the halls . . .
together" during Ms. Adams brief tenure at the
Commission.*fn53 Defendant's Offer of Evidence Obtained
Through Limited Discovery, July 16, 1980, p. 10, quoting
deposition of Janet DeVries. Having found no indication of
actual bias*fn54 on the part of these individuals-either in
their capacity as staff members of an investigative agency or
through their affiliation with NOW-related organizations
— we regard evidence of their living arrangement as merely
cumulative on the point of any appearance of impropriety.*fn55
We reaffirm our conclusion that any cloud over the
Commission's investigation of Sears can be removed through a
trial de novo of the substantive issues in this proceeding. As
indicated above, we may give such weight to the record and
findings of the Commission as we deem appropriate. Instructive
on the point of the weight and admissibility of the
administrative record is the Supreme Court's decision in
Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39
L.Ed.2d 147 (1974). The Court held in Alexander that an
employee's right to a trial de novo under Title VII is not
foreclosed by the prior submission of the discrimination claim
to final arbitration under the nondiscrimination clause of a
collective bargaining agreement. The following factors were
thought relevant in the appraisal of the record below: "the
degree of procedural fairness," "the special competence" of the
arbitrators (or in our case, factfinders), "the adequacy of the
record with respect to the issue of discrimination." 415 U.S.
at 60, n. 21, 94 S.Ct. at 1025, n. 21. Ultimately, however, it
was noted that the weight to be accorded to the administrative
record "must be determined in the court's discretion with
regard to the facts and circumstances of each case."
Id. (emphasis added). Obviously, the activities of Copus and
Adams constitute such "circumstances" which can be taken into
account here in connection with any consideration given the
Sears alleges that the EEOC leaked copies of the
Commission's decision 77-21 to private interest groups and
otherwise engaged in a media harassment campaign against
Sears. Sears did file suit to enjoin dissemination of
"confidential" investigatory data of the Commission and the
Commission's decision, and the District of Columbia federal
courts upheld Sears' claim.*fn56 However, taking defendant's
allegations as true, we believe that any injury to reputation
or goodwill resulting from the leaks fails to reach
constitutional proportions. Sears contends that it has a
"substantial property interest in its good name." Defendant's
Brief in Support, p. 26. However, the Supreme Court expressly
rejected the notion in Paul v. Davis, 424 U.S. 693, 96 S.Ct.
1155, 47 L.Ed.2d 405 (1976), that every defamation by a
governmental body triggers the protections of the Due Process
While we have in a number of our prior cases
pointed out the frequently drastic effect of the
"stigma" which may result from defamation by the
government in a variety of contexts, this line of
cases does not establish the proposition that
reputation alone, apart from some more tangible
interests such as employment, is either "liberty"
or "property" by itself sufficient to invoke the
procedural protection of the Due Process
424 U.S. at 701, 96 S.Ct. at 1160-1161; Elbert v. Board of
Education of Lanark Community Unit School District,
630 F.2d 509 at 513 (7th Cir. 1980) (defamation alone does not trigger
due process protection).
The Seventh Circuit in the aftermath of Paul v. Davis has
formulated a "stigma-plus" test, Colaizzi v. Walker,
542 F.2d 969, 973 (7th Cir. 1976), cert. denied, 430 U.S. 960, 97 S.Ct.
1610, 51 L.Ed.2d 811; Austin v. Board of Education of
562 F.2d 446, 450 (7th Cir. 1977); Elbert v. Board of
Education, supra, at 512: In order to establish a liberty or
property interest sufficient to implicate Fourteenth Amendment
safeguards, the individual must not only be stigmatized, but
stigmatized in connection with the denial of a right or status
previously recognized under state law. Colaizzi v. Walker,
supra, 542 F.2d at 973. Accord, Moore v. Otero, 557 F.2d 435,
437 (5th Cir. 1977). In Colaizzi, the Seventh Circuit stated
that the infliction of a stigma to reputation accompanied by a
failure to rehire or, a fortiori, by a discharge, states a
claim for deprivation of liberty without due process. 542 F.2d
at 973. Other circuits have followed the lead of the Seventh
Circuit in applying a "stigma-plus" test. See e.g., Dennis v. S
& S Consolidated Rural High School District, 577 F.2d 338, 341
(5th Cir. 1978); McGhee v. Draper, 564 F.2d 902, 910 (10th Cir.
1977). See also Poirier v. Hodges, 445 F. Supp. 838, 842-844
(M.D.Fla. 1978) (applying stigma-plus test in finding no due
process injury to business reputation).
In the instant case, Sears has only shown some unfortunate
publicity generated by a purely investigatory agency.
Accord, Sears-Georgia, Slip Op. at 18. It has not cited any
"plus" factor or tangible harm that directly resulted from the
publicity. For example, it does not allege any decrease in
sales occasioned by the disclosures. We do not find anything
akin to the loss of a state-conferred right of adults to
purchase liquor in Wisconsin v. Constantineau, 400 U.S. 433, 91
S.Ct. 507, 27 L.Ed.2d 515 (1971),*fn58 a suspension from
public school in Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42
L.Ed.2d 725 (1975), or a failure to rehire or a discharge of
employment as in Colaizzi v. Walker, supra, and Dennis v. S & S
Consolidated Rural High School District, supra. Sears does
allege some general loss of goodwill, but this is highly
speculative and certainly does not constitute the sort of
"tangible interest" adverted to in Paul v. Davis, supra, 424
U.S. at 701, 96 S.Ct. at 1160.
Moreover, the "right to engage in conciliation discussions"
and the "right to confidentiality," Defendant's Brief in
Support, p. 26 n. 2, do not involve due process
considerations. Sears was not denied the opportunity to
conciliate. At most, it was deprived of conciliation
discussions unfettered by earlier adverse publicity. Since the
Commission's investigative findings have no determinate
consequences, we cannot say that any loss or judgment of
"guilt," Defendant's Brief in Support, p. 20, has attached to
the reasonable cause determination.
Any alleged infractions of the Commission's confidentiality
rules, 42 U.S.C. § 2000e-5(b), 2000e-8(e),*fn59 also fail to
reach the level of a due process violation. Accord,
Sears-Georgia, Slip Op. at 19, "The disclosures claimed here
resulted in uncomfortable publicity for defendant, not in
denial of due process." The statutory failure here is not even
directed to the core of the due process guarantee: notice and
opportunity to be heard. See, e.g., EEOC v. Bailey Co., Inc.,
563 F.2d 439, 450 (6th Cir. 1977) (failure of Commission to
notify employer of the scope of and basis for its
investigation), cert. denied, 435 U.S. 915, 98 S.Ct. 1468, 55
L.Ed.2d 506. Sears is not alleging the denial of a hearing
right or even damages flowing from the disclosure. Instead,
apparently basing its argument on a theory of deterrence, Sears
would have us dismiss the instant Title VII suit without any
adjudication on the merits. There is no justification for such
drastic relief. Congress has provided a specific deterrent —
criminal prosecution — of those responsible for the
leaks.*fn60 If, in fact, the Commission authorized or knew of
the "leaks" of the Commission report, these transgressions will
not affect the ability of this court to make a fair and
impartial determination of the merits.
We note in this connection the decision in EEOC v. Red Arrow
Corp., 392 F. Supp. 64 (E.D.Mo. 1974), where, in preparation for
trial, the EEOC placed ads in several newspapers to solicit
victims of racially discriminatory hiring practices of the
defendant. The court refused to dismiss the discrimination suit
brought by the Commission because of "the possible adverse
effects upon the real parties in interest." Id., at 64. The
court characterized the sanction of dismissal as "severe." Id.,
3. Bill of Attainder
Sears alleges that the EEOC's use of adverse publicity
inflicted punishment on Sears without judicial trial,
contravening the Bill of Attainder Clause of the United States
Constitution, art. I, § 9, cl. 3. Little attention needs to be
directed to this argument, as we find it inappropriate to the
setting in which the Commission operates.
The Bill of Attainder Clause was intended, as the Supreme
Court declared in United States v. Brown, 381 U.S. 437, 442, 85
S.Ct. 1707, 1711, 14 L.Ed.2d 484 (1965), to serve as "a general
safeguard against legislative exercise of the judicial
function, or more simply — trial by legislature. . . ." We do
not find the EEOC's responsibilities in the Title VII area to
be "legislative" or "judicial" in character. See discussion of
the purely investigatory powers of the Commission, pp. 254-255
supra. There has been no determination of Sears' guilt by the
Commission, nor the imposition of any punitive measures. Sears
has merely been the subject of a Title VII sex discrimination
investigation and named as a defendant in a civil suit brought
by a governmental agency. Thus, no punishment has been
"inflicted . . . within the constitutional proscription against
bills of attainder." Nixon v. Administrator of General
Services, 433 U.S. 425, 472-473, 97 S.Ct. 2777, 2805, 53
L.Ed.2d 867 (1977). Accord, Sears-Georgia, Slip Op. at 20
("branding" effect resulting from improper press disclosures
does not amount to a constitutional violation).
4. Denial of Hearing on Reconsideration of Commission's
The Commission's summary refusal to grant Sears a hearing on
its reasonable cause determination is said to violate
principles of due process. Defendant requested the Commission
to set aside its decision and "proceed upon a record untainted
by conflicts of interest." Defendant's Memorandum in Support,
While we agree with defendant that the Commission's handling
of the Copus conflict was improper,*fn62 we do not believe
the impropriety reached due process proportions. Due process
does not guarantee such a hearing where the findings of the
Commission are not adjudicative. In Georator Corp. v. EEOC,
592 F.2d 765 (4th Cir. 1979), the court found no due process
violation in the failure to give plaintiff an opportunity to be
heard prior to the Commission's issuance of its reasonable
cause determination. The Court emphasized that this
determination had "no effect until the Commission or the
charging party brings suit in district court. Georator will
have an opportunity at that time to be heard and defend against
the charges." 592 F.2d at 769 (citations omitted). See SEC v.
OKC Corp., 474 F. Supp. 1031, 1041 (N.D.Tex. 1979) (no due
process violations result from SEC "accusatory" proceeding, "no
determinate consequences" flow therefrom). Accord, Hannah v.
Larche, 363 U.S. 420, 80 S.Ct. 1502, 4 L.Ed.2d 1307 (1960)
(Commission on Civil Rights' procedural rules denying subject
right to be apprised of specific charges, identities of
accusers, right to confront and cross-examine witnesses held
not to violate Due Process Clause of the Fifth Amendment where
Commission acts solely as an investigatory and fact-finding
agency). See also Wellman v. Dickinson, 79 F.R.D. 341, 352
(S.D.N.Y. 1978) (dismissal of government suit not appropriate
where the SEC, a Commission with no adjudicative powers, did
not afford petitioners an opportunity to press their claims
prior to litigation).
5. Commission's Violation of its Own Regulations
Sears argues that the Commission in its investigation
violated EEOC conflict of interest regulations, and thereby
denied it due process. See text of regulations at n. 14 supra.
We reject these contentions, applying the analysis from the
preceding section: Sears will have a full and fair opportunity
to present its substantive position to this court in a trial on
the merits. "It must be remembered that all that is in issue
here is the institution of suit by the government against the
Defendant, not the substantive adjudication of [its] rights."
Wellman v. Dickinson, 79 F.R.D. 341, 352 (S.D.N.Y. 1978). It is
this very element of a full trial on the merits which renders
cases cited by the defendant, such as United States ex rel.
Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed.
681 (1954), inapposite. As the court in Wellman v.
In Accardi, for example, the allegation was that
the Board of Immigration Appeals violated its own
regulations by failing to exercise its discretion
in reaching a determination in a deportation
proceeding because the Board simply relied on a
list of "undesirables" tendered to it by the
Attorney General. There, . . . the petitioner did
not have the protection of a full trial at the end
of the plenary procedure.
79 F.R.D. at 353.