1 Fair Empl.prac.cas. 429, 1 Empl. Prac. Dec. P 9911equal Employment Opportunity Commission, Appellant, v. Union Bank, a Corporation, Appellee, 408 F.2d 867 (9th Cir. 1969)

Daniel Steiner (argued), Acting Gen. Counsel, Kenneth F. Holbert, Acting Gen. Counsel, Russell Specter, David R. Cashdan, Attys., Washington, D.C., for appellant.

Bruce A. Bevan, Jr. (argued), of Musick, Peeler & Garrett, Los Angeles, Cal., for appellee.

Before BARNES and JERTBERG, Circuit Judges, and WEIGEL, District judge.

WEIGEL, District Judge:

On January 6, 1967, Miss Marguerite M. Buckley resigned from her position as an attorney in the Law Division of appellee Union Bank. On February 20, 1967, Miss Buckley filed with appellant Equal Employment Opportunity Commission a charge of discrimination against appellee. Specifically, Miss Buckley alleged that her employer had engaged in 'discrimination in upgrading on the job; men doing the same job had corporate titles and higher salaries.'¹ 

Evidently satisfied that there was 'reasonable cause' to believe that violation of the Civil Rights Act of 1964 had occurred, a member of the Commission furnished appellee with a copy of the charge and began an investigation. See 42 U.S.C. 2000e-5(a) (1964). This investigation proceeded on an informal basis for a period of time, with appellee voluntarily producing certain documents requested by appellant. However, on March, 31, 1967, after appellee informed the EEOC that it would not voluntarily comply, appellant made a formal demand upon appellee to produce the following:

1. Personnel records, or data processed print out sheets, listing names, sex, job title, job code numbers, office and/or department designation, and salaries for all positions in which men and women were employed by Union Bank in February, March, April, and December, 1966.

2. All other records in addition to those heretofore enumerated or furnished which would enable the EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, to determine, pursuant to Title VII of the Civil Rights Act of 1964, whether or not there is probable cause to believe the Union Bank discriminated against Miss Marguerite M. Buckley by refusing to pay equal compensation and award equal status by title to the charging party.

After receiving a copy of this demand appellee filed, in the district court, a petition to set aside. 42 U.S.C. 2000e-9(c) (1964). Basically, the petition made two arguments. First, that the material requested in the first paragraph of the demand was not 'relevant to the charge under investigation' within the meaning of 42 U.S.C. 2000e-8(1964). Second, that 'the documents categorized in paragraph numbered 2 * * * are not specified and petitioner cannot determine which documents are requested.' The district court agreed, and granted the petition to set aside.

The EEOC appealed. In its opening brief, the Commission restricted its argument to the relevancy of the material requested in the first paragraph of its demand. In its opposing brief, appellee argued that the material demanded was not relevant and, in addition, for the first time, argued that the demand was in excess of the Commission's jurisdiction since Miss Buckley had failed to exhaust available state remedies before filing her charge of discrimination with the Commission.²  See 42 U.S.C. 2000e-5(b) (1964). appellant could then have filed a reply brIEf, answering this new allegation, but chose not to do so. 9th Cir. R. 18(4), as amended, Fed. R. App. P. 28(c).

Appellee's failure to raise the exhaustion argument in the district court is not a bar to our considering it here. The law is clear that 'an appellee may support the judgment by any reasoning from facts disclosed in the record * * *.' Dejay Stores, Inc. v. Ryan, 229 F.2d 867, 871 (2d Cir. 1956) (L. Hand, J.); see e.g., Helvering v. Gowran, 302 U.S. 238, 58 S. Ct. 154, 82 L. Ed. 224 (1937); Spokane County v. Air Base Housing, Inc., 304 F.2d 494 (9th Cir. 1962). Nor do we understand appellant to contend otherwise.

We find Miss Buckley's failure to exhaust available state remedies to be controlling. Subsection 2000e-5(b) contains a clear mandate that the victim of an alleged unlawful employment practice must proceed under available state law before filing a charge with the EEOC. Stebbins v. Nationwide Mutual Insurance Co., 382 F.2d 267 (4th Cir. 1967), cert. denied, 390 U.S. 910, 88 S. Ct. 836, 19 L. Ed. 2d 880 (1968); Ethridge v. Rhodes, 268 F. Supp. 83, 89 (S.D. Ohio 1967).³ 

California, the state in which the alleged discrimination occurred, has a comprehensive scheme dealing with claims of wage discrimination against women. Cal. Labor Code 1197.5(a) makes it unlawful for an employer to pay a woman at a wage rate less than a man 'for the same quantity and quality of the same classification of work * * *.'

Subsection 1197.5(c) authorizes the Division of Industrial Welfare to make a full investigation of any claims of wage discrimination and to seek a conciliation. Subsection 1197.5(f) allows the Division to bring suit to recover the difference in wages if an amicable settlement is not reached. Alternatively, subsection 1197.5(g) allows the person aggrieved to bring suit herself and to recover not only the lost wages but also the costs of suit. Finally, Cal. Labor Code 1199(d) makes it a misdemeanor for an employer to pay 'any woman employee a wage less than the rate paid to a male employee as required by Section 1197.5 of this code.'

It is undisputed that Miss Buckley had not availed herself of the benefits afforded by Cal. Labor Code 1197.5 at the time she filed her charge with the EEOC, nor is there any indication that she has done so since filing the charge.⁴  Nonetheless, appellant argues that this omission is not controlling, since the state scheme provides relief for wage discrimination only while Miss Buckley claims to have been discriminated against both in terms of wages and in terms of job title. We find this argument unpersuasive.

The exhaustion requirement was not part of Title VII when it first emerged from the House of Representatives. 110 CONG.REC. 12807, 12814, 12819 (1964) (Remarks of Senator Dirksen). It was introduced in the Senate, as part of the 'leadership compromise amendment,' to combat objections by various Senators that the House version did not give sufficient deference to the sovereignties of the respective states. Senator Dirksen, who, along with Senators Mansfield, Humphrey and Kuchel, was part of the leadership team that proposed the amendment, noted:

With respect to the enforcement of the title, we undertook to keep primary, exclusive jurisdiction in the hands of the State commissions for a sufficient period of time to let them work out their own problems at the local level. 110 CONG.REC. 13087 (1964).⁵ 

In the light of all of the foregoing, we hold that where, as here, substantial relief against the alleged discrimination is available under state law, the person aggrieved must pursue state remedies before a valid complaint may be filed with the EEOC.⁶  It follows that the Commission was without jurisdiction to issue the demand for production.

In view of the above, it is unnecessary for us to consider whether the material demanded was relevant to the charge under investigation.

Affirmed.