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United States Court of Appeals for the Fifth Circuit
December 21, 1971
[*236] GOLDBERG, C. J.:
This Equal Employment Opportunity case comes to us in a preliminary and undefinitive posture. We are asked to limit at the threshold the investigative scope of the Equal Employment Opportunity Commission on the ground that the Commission seeks evidence on a discriminatory employment practice which is not proscribed by Title VII of the Civil Rights Act of 1964. 2 Judge Godbold, for reasons best expressed in his concurring opinion, permits the discovery. Though my justiciable interpretation of the acts charged differs from that of my Brother Godbold, [**2] I also sanction the discovery, because at this juncture I cannot be certain that the acts charged are not within the Act's proscriptions.
On April 11, 1969, Mrs. Josephine Chavez filed with the respondent EEOC, pursuant to Section 706(a) of Title VII, 42 U.S.C.A. § 2000e-5(a), a verified charge of employment discrimination against petitioners, who are optometrists doing business as "Texas State Optical." The charge stated in full:
"The above company has discriminated against me because of my national origin Spanish surnamed American by:
a. Terminated me from my job without a reason. I was the only Spanish surnamed American employed with seven Caucasian females who abused me. The manager told me my work was allright but he had to let me go because of friction.
b. segregating the patients."
In May of 1969 the Commission commenced investigation of the charge, serving a copy of it on petitioners. [**3] Frustrated by unsuccessful efforts to secure voluntary production of materials considered relevant to its investigation, the Commission invoked its statutory authority and issued upon the petitioners a Demand for Access to Evidence. 3 [**4] In addition to information concerning Mrs. Chavez and other of the petitioners' employees, the Demand sought production of data pertaining to or contained in the patient applications which petitioners maintain in the course of their business. Within the twenty-day statutory period, 4 [*237] petitioners filed in a federal district court a petition to set aside or modify the Demand, and the EEOC timely answered and cross-petitioned for enforcement. The district court granted partial enforcement of the Demand, denying the Commission's request for access to patient applications. Rogers v. EEOC, E.D. Tex. 1970, 316 F. Supp. 422. The EEOC appeals the partial enforcement order 5 and contends that the district court should have granted the Commission access to these applications. The majority of this court is in agreement that the Demand for Access to Evidence against petitioners should be enforced in toto.
[**5] Before considering the district court's justifications for refusing enforcement of the Demand, I find it necessary to consider the interpretation which should be accorded Mrs. Chavez's complaint. Neither the district court nor the EEOC interpreted the complainant's charge of "segregating the patients" as alleging that "Mrs. Chavez is required or permitted to attend only to patients of a certain ethnic origin and not to others." Rogers v. EEOC, supra, 316 F. Supp. at 425. Such an interpretation, which Judge Godbold endorses, might very well be reasonable, but it is certainly neither compulsory nor compelling. This case was tried and the trial court's conclusion reached solely on the interpretation of the charge that petitioners discriminate among their clients on the basis of the patient's national origin. This is both a reasonable and a practical interpretation, and I prefer to come to grips with the fundamentals of this case as viewed by the claimant, the learned and distinguished trial judge, the Equal Employment Opportunity Commission, the briefs on appeal, and Judge Roney. Accordingly, for purposes of the merits of this appeal, I will treat the latter portion [**6] of Mrs. Chavez's charge, as the district court did, to mean only that petitioners afford their patients different treatment depending on their ethnic origins.
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454 F.2d 234 *; 1971 U.S. App. LEXIS 6509 **; 4 Fair Empl. Prac. Cas. (BNA) 92; 4 Fair Empl. Prac. Cas. (BNA) 265; 4 Empl. Prac. Dec. (CCH) P7597
Dr. N. Jay Rogers et al., Petitioners-Appellees v. Equal Employment Opportunity Commission, Respondent-Appellant
Subsequent History: [**1] Rehearing Denied per curiam January 31, 1972. 1
Disposition: REVERSED AND REMANDED.
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Business & Corporate Compliance, US Equal Employment Opportunity Commission, Authorities & Powers, Investigative Authority, Labor & Employment Law, Discrimination, Actionable Discrimination, General Overview, Title VII Discrimination, Governments, Legislation, Interpretation, National Origin Discrimination, Scope & Definitions, Civil Actions, Notice to Employers