1

REVISED

United States Court of Appeals,

Fifth Circuit.

No. 96-20042.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee,

v.

HEARST CORPORATION, Doing Business as The Houston Chronicle

Publishing Company, Defendant-Appellant.

Jan. 22, 1997.

Appeal from the United States District Court for the Southern

District of Texas.

Before REYNALDO G. GARZA, JOLLY and DeMOSS, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

This appeal arises from an administrative subpoena

enforcement proceeding. The Hearst Corporation, Houston Chronicle

Division ("Hearst"), challenges the authority of the Equal

Employment Opportunity Commission ("EEOC") to enforce two

administrative subpoenas because the charging parties have

commenced litigation of the underlying claims. The EEOC

essentially maintains that once a valid charge has been filed, its

authority to investigate the employer continues indefinitely, and

never formally terminates. Having considered the arguments of the

parties, and the structure and purpose of the investigative

authority created by Title VII, we conclude that the EEOC may not

continue an administrative investigation based upon an individual's

charge once the charging party has been issued a right to sue

letter and has initiated litigation based upon that charge.
 

1The Hearst Corporation owns and operates the Houston

Chronicle, a daily newspaper, as a separate division. 

2

I

On December 13, 1994, Shelley Lamb and Joyce Waddell filed

separate charges with the EEOC claiming that since August 1994,

they had been subjected to continuing sexual harassment by John

Laird, a Vice-President of Sales and Marketing for the Houston

Chronicle, a newspaper division of the Hearst Corporation.1 Lamb

and Waddell provided the EEOC with affidavits that set forth the

initial incidents of harassment, which allegedly occurred during a

company meeting in Galveston, Texas, and subsequent incidents at

the Chronicle's offices and in other locations. The affidavits

also identified individuals who had told Lamb and Waddell about

Laird's alleged harassment of other women, or about the Chronicle's

treatment of Lamb's and Waddell's claims. Waddell's affidavit

stated that a personnel department employee informed her that Anita

Sparks, the Display Advertising Manager, had also once complained

about Laird.

Based upon these affidavits, on February 23, 1995, the EEOC

sent Hearst a written request seeking the personnel files of Lamb,

Waddell and Laird, copies of any internal investigation documents,

a list of employees in the Advertising Department, and permission

to conduct an on-site investigation and to review certain other

records. On March 21, Hearst provided the three personnel files,

but refused all other requests, asserting that no additional

information was relevant to Lamb's and Waddell's specific charges.
3

On April 14, the EEOC requested additional interviews, including an

interview of Sparks. Following conversations with Hearst's

attorney, the EEOC issued two subpoenas, dated April 24 and April

27, demanding the previously requested documents and information

and the testimony of Anita Sparks. Hearst petitioned to revoke the

subpoenas.

Sometime in July, Lamb and Waddell, who had already filed tort

claims against Laird in Texas state court, formally requested right

to sue letters from the EEOC. The EEOC issued right to sue letters

to Lamb and Waddell on July 26, 225 days after the original charges

had been filed. The issuance of these letters permitted Lamb and

Waddell to amend their state court complaint to add sexual

harassment claims under the Texas Commission on Human Rights Act,

Tex.Lab.Code Ann. §§ 21.001-.306 (Vernon 1995), and to join the

Hearst Corporation as a defendant. Hearst removed the case to

federal court, but the case was remanded because Lamb and Waddell

had not raised claims specifically under Title VII in their state

court proceeding, but instead had raised claims under the Texas

counterpart to Title VII.

On July 28, two days after issuing the right to sue letters,

the EEOC denied Hearst's petition to revoke the subpoenas. On

August 22, Hearst informed the EEOC that it would not comply with

the subpoenas.

On November 20, the EEOC filed the present action in federal

district court, seeking enforcement of its administrative

subpoenas. Hearst argued in response that the EEOC could not
4

continue to investigate the charges, and, alternatively, that the

EEOC was seeking information that was not relevant to the original

charges. The district court disagreed and entered its order

enforcing the subpoenas on January 9, 1996. This appeal followed.

II

Hearst challenges the EEOC's authority to enforce the

subpoenas issued under Lamb's and Waddell's original charges on two

alternate grounds.

First, Hearst argues that because Lamb and Waddell are now

time-barred from filing suit under Title VII, the EEOC is also

time-barred. In support of this contention, Hearst relies upon

EEOC v. C & D Sportswear, 398 F.Supp. 300 (M.D.Ga.1975), which held

that the EEOC could not maintain a Title VII action six years after

a charge was filed and more than two years after a right to sue

notice was issued.

The EEOC responds that no statute of limitations applies to

the EEOC's right to bring a Title VII action where the charging

party has not done so, citing EEOC v. Occidental Life Ins. Co., 432

U.S. 355, 97 S.Ct. 2447, 53 L.Ed.2d 402 (1977). The EEOC also

insists that this court need not reach the question whether the

EEOC may file suit on the basis of Lamb's and Waddell's original

charges. A subpoena enforcement proceeding, the EEOC argues, is

not the proper time for considering the "merits" of any potential

suit, and therefore this court need not address Hearst's

contentions at this stage. As support, the EEOC cites EEOC v.

Children's Hosp. Medical Center, 719 F.2d 1426 (9th Cir.1983) (en
5

banc) (holding that the question whether a prior consent decree

would preclude later suit by the EEOC was irrelevant at subpoena

enforcement stage), and EEOC v. Roadway Express, 750 F.2d 40 (6th

Cir.1984) (finding that "merits" of case could not properly be

considered at subpoena enforcement hearing).

Second, Hearst argues that the subpoenas may not be enforced

because they seek information not relevant to the charges under

which they were issued. Hearst argues that the EEOC is simply

engaged in a "fishing expedition."

III

Unlike some other agencies, the EEOC does not possess plenary

authority to demand information that it considers relevant to its

area of jurisdiction. The EEOC's authority to investigate in Title

VII cases is triggered only by the filing of a formal charge,

either by or on behalf of an aggrieved individual, or by a

Commissioner. See 42 U.S.C. § 2000e-5(b) and § 2000e-6(e). The

Supreme Court held in EEOC v. Shell Oil Co. that the existence of

a valid charge is a "jurisdictional prerequisite to judicial

enforcement of a subpoena issued by the EEOC." 466 U.S. 54, 65,

104 S.Ct. 1621, 1629, 80 L.Ed.2d 41 (1984). Although we may agree

with the EEOC that a subpoena enforcement hearing is not the right

place to examine the "merits" of a case, we are obligated to

consider whether a charge upon which formal litigation has

commenced can support a continuing administrative investigation.

We first address Hearst's argument that the EEOC may no longer

investigate based on Lamb's and Waddell's charges because it may no
6

longer sue upon those charges; if the EEOC cannot file suit based

upon the charges, Hearst insists, the agency has no need under the

statute for the information sought in the subpoenas. In analyzing

this argument, we must examine the structure of Title VII to

determine whether it contains any temporal limitations on the

EEOC's authority to investigate. We begin with the text of the

statute.

A

Under Title VII, 42 U.S.C. § 2000e et seq., action by the EEOC

is triggered by the filing of a charge of discrimination. A charge

may be filed by an individual or by a Commissioner of the EEOC, and

must specify the nature of the claimed illegal action. Charges may

allege either individual cases or a "pattern or practice" of

illegal discrimination. Once a charge is filed, the EEOC is

empowered to investigate the charge, to mediate between the parties

through informal methods of conciliation, and, if need be, to file

a civil action on behalf of the aggrieved individual.

When the EEOC was originally established by Congress in the

Civil Rights Act of 1964, it was not permitted to file civil suits;

the EEOC's role was limited to that of an informal conciliator. 78

Stat. 259. Under the original version, the EEOC had a mere 30 days

to investigate a charge and to attempt informal conciliation if

reasonable cause was found. After the period expired, however, the

EEOC was required to notify aggrieved individuals of the failure of

conciliation. This notice commenced a 30 day period of limitations

on civil actions by private individuals. 42 U.S.C. § 2000e-5(e)
7

(1970). It is apparent that Congress generally expected the EEOC

to complete its administration of a charge within 30 days: the

original version allowed the EEOC to extend its period of exclusive

jurisdiction for as many as 30 additional days, and also permitted

the EEOC to request a brief stay of any later civil proceeding, if

necessary to complete its efforts. Id.

The 30-day periods were a definite failure. The legislative

history of the 1972 Amendments to Title VII is replete with

references to the EEOC's staggering backlog of cases. See, e.g.,

H.R.Rep. No. 92-238, 54-55 (1971); S.Rep. No. 92-415, 23 (1971).

Most members of Congress also agreed that the EEOC needed more

substantial enforcement powers. Yet legislators disagreed whether

the EEOC should be permitted to adjudicate claims and issue

cease-and-desist orders. Those legislators who were wary of

investing the EEOC with too much enforcement authority favored an

enforcement approach through the courts. After extensive debate,

Congress approved amendments adopting enforcement through the

courts, and established significantly longer periods for EEOC

administration and conciliation of charges. Equal Employment

Opportunity Act of 1972, 86 Stat. 103 (amending Civil Rights Act of

1964).

Considering the previous structure and Congressional hesitance

about establishing broad enforcement authority, one might expect to

see some definite restrictions, including time limitations on the

EEOC in relation to its handling of individual charges. Indeed,

this appears to be exactly what the amended version establishes,
 

2Two different schedules are established. A longer schedule

applies if a state or local law also prohibits the conduct or

practice in question, and the EEOC has established many deferral

and worksharing agreements with state and local agencies. 42

U.S.C. § 2000e-5(c)-(e). This alternate schedule is not implicated

in this appeal, and references to it will be omitted. 

8

under a straightforward reading of the text. Section 706 of the

Act, as amended, creates a complex timetable for the administration

of individual charges.2

The process begins with the filing of the charge. Under

subsection (b), the EEOC must notify the respondent employer of the

charge within 10 days after it is filed. The EEOC is then required

to investigate in order to reach a determination of reasonable

cause or no reasonable cause. The EEOC is required to reach a

cause determination "as promptly as possible and, so far as

practicable, not later than one hundred and twenty days from the

filing of the charge." 42 U.S.C. § 2000e-5(b) (emphasis added).

If the EEOC finds no reasonable cause to believe a violation has

occurred, it shall dismiss the charge. Id. If reasonable cause is

found, the preferred method of resolution remains informal

conciliation. To that end, the EEOC is not permitted to file a

civil action until at least thirty days have passed, and then only

if conciliation efforts have not been successful. 42 U.S.C. §

2000e-5(f).

In this same section providing for suit by the EEOC, Congress

also established a 180-day outer limit on the EEOC's exclusive

jurisdiction by thereafter allowing private parties to file suit.

Subsection (f) of § 706, § 2000e-5(f), next states that
9

If a charge filed with the Commission ... is dismissed by the

Commission, or if within one hundred and eighty days from the

filing of such charge ..., the Commission has not filed a

civil action under this section ..., or the Commission has not

entered into a conciliation agreement to which the person

aggrieved is a party, the Commission ... shall so notify the

person aggrieved and within ninety days after the giving of

such notice a civil action may be brought against the

respondent named in the charge (A) by the person claiming to

be aggrieved or (B) if such charge was filed by a member of

the Commission, by any person whom the charge alleges was

aggrieved by the alleged unlawful employment practice.

42 U.S.C. § 2000e-5(f) (emphasis added). This rather lengthy

sentence establishes a temporal limitation—180 days—that is

critical to the statutory scheme, and that we must examine

carefully.

At the beginning of this same subsection, the statute is clear

that in the first 180 days after the charge is filed, only the EEOC

is permitted to sue (although not until at least 30 days have

passed). Next, the above-quoted sentence unambiguously establishes

the right of private parties to sue after 180 days have passed.

What is unclear is the effect this provision has upon the EEOC's

investigative and enforcement authority. That is, does the quoted

sentence merely command the EEOC to notify the charging party of

some change in the posture of the charge as it relates to her, or

does the 180-day mark also limit the Commission's authority to

proceed by indicating that the time for proceedings by the

Commission has passed?

In examining this language, we first observe that the giving

of notice to the private parties is not a discretionary function:

the EEOC "shall" give the notice specified when the period expires.

Yet despite the unambiguous meaning of the word "shall," the courts
 

3Lamb and Waddell, in fact, requested and were issued right to

sue notices some 225 days after they filed their original charges.

10

have held that the EEOC is not required to issue after 180 days the

notice that begins the 90-day period within which the private party

may sue, "considering the insurmountable workload difficulties of

the EEOC which prevent resolution of claims in an expeditious

manner." Zambuto v. American Tel. & Tel. Co., 544 F.2d 1333, 1334

n. 5 (5th Cir.1977). See also Forbes v. Reno, 893 F.Supp. 476, 482

(W.D.Pa.1995), affirmed, 91 F.3d 123 (3d Cir.1996) (same).

Even in Zambuto, though, we criticized the EEOC's

then-practice of sending letters that notified charging parties

that they could choose when to receive a second letter that would

begin the 90-day limitations period. The current practice of the

EEOC, however, is not substantially different. The EEOC issues

"right-to-sue" notices only when it actually reaches a

determination on cause, or when an aggrieved party requests the

notice after 180 days have passed. 29 C.F.R. § 1601.28. This

practice continues to allow aggrieved parties to select when they

would like the 90-day limitations period to begin, and is contrary

to the plain terms of the statute.3 We note that our permissive

decision in Zambuto, excusing a governmental agency's

non-compliance with the explicit terms of the statute, was based

upon the EEOC's status as a "fledgling" agency facing a substantial

workload. Nearly two decades later, the EEOC should be

sufficiently organized that we may expect it to follow the clear

instructions of Congress.
11

Our second observation concerns the nature of the notice that

the EEOC must send. The notice required is notice that either (1)

the charge has been dismissed, or (2) that 180 days have passed

without a successful conciliation. The statute does not require

that the notice specifically advise the charging party that the

statutory 90-day period during which she has the right to sue has

begun to run, although such a warning undoubtedly is permitted.

This point is important, however, because the critical

question is whether the clause beginning with "and within ninety

days" creates a further right to sue in private parties, which

coexists along with the Commission's right to sue—or whether the

clause terminates by implication the EEOC's right to sue at this

point in the enforcement scheme by shifting enforcement authority

to the charging party. Again, the relevant statutory language

reads:

[after 180 days] the Commission ... shall so notify the person

aggrieved and within ninety days after the giving of such

notice a civil action may be brought ... (A) by [any charging

parties] or (B) by [persons aggrieved by a practice challenged

in a Commissioner's charge].

At this point, the EEOC has enjoyed an exclusive right to sue for

as many as 150 days (180 days less the first 30 days during which

the EEOC is limited to conference and conciliation), and at least

60 days if the EEOC timely completed its investigation.

The question, more clearly stated, is which of the following

readings of the statute correctly states Congress' intent?

1. 180 days pass, so notice mandatorily issues, and now (A)

the charging party or (B) the aggrieved party on whose behalf

the charge was filed also has the right to sue, along with the

EEOC, or
12

2. 180 days pass, so notice mandatorily issues, the EEOC's

right to sue terminates, and now enforcement lies with the

persons identified in categories (A) and (B) only.

If the text read that the EEOC "shall notify the person aggrieved

that within ninety days [he may sue]" our task would be simple. In

that case, the clause would describe the content of the notice, and

the purpose of the notice would be to inform the charging party

that they could now file suit if displeased with the EEOC's

progress. In that case, providing the notice would simply be part

of the EEOC's administrative duties.

But the clause beginning with "and within ninety days" does

not describe the content of the notice. After 180 days, the EEOC

is required to issue formal, written notice that it has neither

filed suit nor successfully conciliated the charge—both facts of

which the charging party should already be aware. Given that the

notice serves little purpose as notice, we believe that the purpose

of the notice at the end of the 180-day period primarily must be to

signify the end of agency action with respect to the charge.

This conclusion is strengthened by the statute's requirement

that the notice at issue also be provided if the charge is

dismissed: "If a charge filed with the Commission ... is dismissed

by the Commission, or if within one hundred and eighty days ..."

42 U.S.C. § 2000e-5(f). The dismissal of a charge must surely

terminate all agency action upon it, strongly suggesting that this

section identifies the point at which EEOC processing ceases.

We believe, therefore, that this clause marks the beginning of

a new statutory period, during which only the persons who fall into
13

categories (A) and (B) may sue on the charge. We concede that

these interpretive questions are difficult, but to read the "and

within ninety days" clause to serve only as a notice to the

aggrieved parties would leave the EEOC's right to sue untethered to

any statute of limitations. We should not accept lightly that a

Congress hesitant about the new enforcement powers it was

establishing intended those powers to be without any end in time.

The statute clearly reflects that Congress expected the EEOC

to complete investigations within 120 days. Leaving an additional

60 days for the EEOC to determine whether suit should be filed

gives the EEOC a reasonable schedule within which to work. Such

time constraints should not hinder the EEOC unreasonably or

significantly in its ability to vindicate the goals of Title VII.

Indeed, the EEOC may seek to intervene in any subsequent private

civil action if "the case is of general public importance." 42

U.S.C. § 2000e-5(f). Additionally, if its investigation revealed

a wider or continuing problem, the EEOC could simply file a

Commissioner's charge and proceed with further investigation or a

civil action. 42 U.S.C. § 2000e-5(b).

If Title VII were interpreted as we believe the text demands,

we logically could conclude only that the EEOC's investigation of

a charge must also end, absent some extenuating circumstance

peculiar to the case under investigation that invokes principles of

equity, after the 180-day period passed—irrespective of whether the

charging party elected to sue. However, this view of Title VII has

been rejected by the courts. Several courts, including our court,
14

have held that the EEOC may still file suit even after the 180-day

period had passed. See, e.g., EEOC v. Louisville & Nashville R.R.,

505 F.2d 610 (5th Cir.1974), cert. denied, 423 U.S. 824, 96 S.Ct.

39, 46 L.Ed.2d 41 (1975); EEOC v. Huttig Sash & Door Co., 511 F.2d

453 (5th Cir.1975). This conclusion was accepted by the Supreme

Court in Occidental, 432 U.S. at 366, 97 S.Ct. at 2454. In

Occidental, the EEOC filed suit against the responding employer

some three years and two months after the employee's charge of

discrimination was filed. The Supreme Court found that the text of

Title VII did not contain a limitation period for filing suit that

applied to the EEOC, and further found that the legislative history

of the 1972 amendments supported the position that no limitation

applied to the EEOC's right to file suit. Id. at 361, 366, 97

S.Ct. at 2451-52, 2454. The Court concluded that the purpose of

the 180-day cutoff was not to ensure that EEOC action was promptly

concluded, but to create "an alternative enforcement procedure":

The 180-day limitation period provides only that this private

right of action does not arise until 180 days after a charge

has been filed. Nothing in § 706(f)(1) indicates that EEOC

enforcement powers cease if the complainant decides to leave

the case in the hands of the EEOC rather than to pursue a

private action.

Id. at 361, 97 S.Ct. at 2452. Consequently, many cases pend for

years in "administrative limbo" with the EEOC, as information grows

stale and memories fade. At oral argument, counsel for the EEOC

maintained that there were no temporal limitations on the EEOC's

ability to investigate an employer named in a charge of

discrimination. Counsel suggested that the EEOC might not be

permitted to continue an investigation once it issued a no-cause
 

4We note that Hearst's argument did not focus upon the 180-day

period, but rather upon the 90-day period that limits the charging

party's right to file suit once the notice of right to sue is

received. Hearst's reliance on C & D Sportswear, 398 F.Supp. at

305, is unavailing. C & D Sportswear has been frequently

criticized, and is contrary to the decision of this circuit in

Huttig Sash & Door Company, 511 F.2d at 454, on which it purported

to rely. It certainly cannot be accepted in the light of the

subsequent holding in Occidental, 432 U.S. at 361, 97 S.Ct. at

2451-52. 

15

determination, but we observe that the EEOC's own regulations

permit it to reconsider a no-cause determination at any time, even

if the 90-day period for suit by the charging party has passed. 29

C.F.R. § 1601.19(b). Finality is apparently not a word in the EEOC

lexicon.

Notwithstanding that the 180-day period appears to be an

important part of the statutory design, it has been rendered

practically meaningless. Under court decisions and regulations

promulgated by the EEOC, the 180-day period provides no assurance

of prompt action by the EEOC and provides no end to intrusive

agency action for the responding employer. Nor does it limit the

period during which the charging party may sue, because the EEOC

generally issues the "right to sue" notice not when 180 days pass

but, as in this case, when the charging party requests one. The

EEOC's regulations even indicate that it may issue a "right-to-sue"

notice, without completing its investigation, before the 180 days

have passed if it so chooses. See 29 C.F.R. § 1601.28(a)(2). The

180-day limitation has become no limitation. Hearst's argument

that the EEOC may not enforce its subpoenas because it can no

longer file suit therefore fails.4
16

B

Although the 180-day period does not terminate the EEOC's

authority to investigate, we think it is statutorily significant

that the "integrated, multistep enforcement procedure" established

by Title VII is divided into four distinct stages: filing and

notice of charge, investigation, conference and conciliation, and

finally, enforcement. See Occidental, 432 U.S. at 359, 97 S.Ct. at

2450-51.

As we have discussed above, once a charge is filed, the EEOC

must provide the named respondent with a copy of the charge within

10 days. 42 U.S.C. § 2000e-5(b). Again, the investigation stage,

designed to enable the EEOC to reach a determination of reasonable

cause or no reasonable cause, begins immediately after the charge

is filed, and shall be completed "as promptly as possible and, so

far as practicable, not later than one hundred and twenty days from

the filing of the charge." Id. The investigation stage is

followed, if reasonable cause is found, by a conference and

conciliation stage during which the EEOC is required to attempt to

achieve an acceptable resolution through informal persuasion. Id.

Only if those efforts are unsuccessful should a case enter the

formal enforcement stage. Congress established that the EEOC may

only file suit if it has been unable to secure a conciliation

agreement, and if at least thirty days have passed from the filing

of the charge. 42 U.S.C. § 2000e-5(f). Additionally, the private

right of action does not arise until 180 days have passed from the

filing of the charge—sixty days after the EEOC should have
17

completed its investigation. These separate stages are important

to the statute's enforcement scheme because of the different roles

that the EEOC plays in the management of discrimination charges:

administrator, investigator, mediator, and finally, enforcer.

That Title VII's enforcement structure is deliberately divided

into distinct stages is confirmed by the legislative history of the

1972 amendments, which first invested the EEOC with its broad

enforcement authority. A Senate Conference Report indicates that

the amendments retained the previous structure that "enable[d] the

EEOC to process a charge of employment discrimination through the

investigation and conciliation stages," but additionally authorized

the EEOC to go further and file a civil action "if it has been

unable to eliminate an alleged unlawful employment practice by

informal methods ..." S.Conf.Rep., Cong.Rec. March 6, 1972, p.

1845. In Occidental, the Supreme Court also describes the

enforcement design as a "multistage scheme" defined by "a

sequential series of steps beginning with the filing of a charge

with the EEOC." 432 U.S. at 372, 97 S.Ct. at 2457.

Congress granted the EEOC broad investigatory authority so

that the agency promptly and effectively could determine whether

Title VII had been violated, and to assist the agency in its

efforts to resolve disputes without formal litigation. These

purposes are no longer served once formal litigation is commenced.

Instead, if the EEOC has any further interest it may intervene and

pursue discovery through the courts; or if its interest extends

beyond the private party charge upon which it is acting, it may
18

file a Commissioner's charge. See 29 C.F.R. § 1601.11 (authorizing

members of Commission to file charges).

The Supreme Court in Occidental—in which no private party had

filed suit—did not address these concerns; the employer challenged

only the length of the enforcement stage, not whether the

enforcement action terminated the investigative stage. 432 U.S. at

357, 97 S.Ct. at 2450 ("[t]he sole question presented by this case

is what time limitation, if any, is imposed on the EEOC's power to

bring such a suit"). In Occidental, both the investigation and the

conference and conciliation stages had passed. Upon receiving

notice that conciliation efforts had failed, the charging party

requested that her case be referred to the EEOC's General Counsel

for formal enforcement action. 432 U.S. at 358, 97 S.Ct. at 2450.

The Court noted that the complainant elected "to leave the case in

the hands of the EEOC" rather than file suit herself. Id. at 361,

97 S.Ct. at 2451-52. The Court concluded that the complainant

properly could choose to leave the litigating to the agency: "the

complainant may either file a private action within 90 days after

EEOC notification or continue to leave the ultimate resolution of

his charge to the efforts of the EEOC." Id.

The case before us is not controlled by Occidental. We do not

decide what independent enforcement authority remains with the EEOC

now that the private parties have initiated their own enforcement

proceedings. We conclude only that the time for investigation has

passed. Shelley Lamb and Joyce Waddell have moved their claims

into the litigation stage. They not only affirmatively requested
19

their right to sue notices, but instituted a civil action against

Hearst based on the exact acts alleged in their charges and

accompanying affidavits. The "alternative enforcement procedure"

identified by the Court in Occidental has begun, and the time for

investigation based upon Lamb's and Waddell's charges has passed.

Our conclusion that the EEOC may not continue to investigate

a charge once formal litigation by the charging parties has

commenced makes it unnecessary for us to consider Hearst's

contention that the subpoenas seek information not relevant to the

charges under which they were issued.

IV

Accordingly, we hold that, in a case where the charging party

has requested and received a right to sue notice and is engaged in

a civil action that is based upon the conduct alleged in the charge

filed with the EEOC, that charge no longer provides a basis for

EEOC investigation. Nothing in this opinion should be construed as

holding that the EEOC may not seek the same information that it

seeks in these subpoenas, so long as it is on the basis of a

different individual charge or a Commissioner charge.

The judgment of the district court is hereby REVERSED, and

this action is REMANDED with direction to enter an order denying

the application to enforce.

REVERSED and REMANDED.