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E.E.O.C. v. SEARS
November 7, 1980
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, PLAINTIFF,
SEARS, ROEBUCK & COMPANY, DEFENDANT.
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
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
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,
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
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
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
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.
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
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
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
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
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.
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
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
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.