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EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Plaintiff
vs.
CITY OF MILWAUKEE Defendant.
 
Case:
CASE NO. 95-MISC-56
 
Location:
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF WISCONSIN
 
Date:
February 8,1996 Decided
 
Attorneys:
For EQUAL EMPLOYMENT OPPORTUNITY COMMISSION plaintiff: Barbara L. Henderson [COR LD NTC] Equal Employment Opportunity Commission Milwaukee WI.
 
Court:
WILLIAM E. CALLAHAN JR. United States Magistrate Court
 
Author:
The Hon. Justice William E. Callahan Jr.
 

On August 16, 1995 the applicant Equal Employment Opportunity Commission ("EEOC") filed an application seeking enforcement of an administrative subpoena. The EEOC seeks an Order requiring a City of Milwaukee ("City") agency the Milwaukee Police Department ("MPD") "to comply with a subpoena issued and duly served by the EEOC."

Background

In its application the EEOC alleges that the instant action is one for enforcement of a subpoena issued pursuant to SEC. 710 of Title VII of the Civil Rights Act of 1964 as amended 42 U.S.C. SEC. 2000e-9. Jurisdiction is conferred upon this Court by SEC.(s) 706(f)(3) and 710 of Title VII 42 U.S.C. SEC.(s) 2000e-5(f) and (9) which incorporate SEC. 2 of the National Labor Relations Act as amended 29 U.S.C. SEC.. 161(2).

The EEOC avers in its application that since December 1990 more than 30 African-Americans who are MPD officers or unsuccessful applicants for MPD employment have filed charges of discrimination with the EEOC's Milwaukee District Office. ("EEOC/MDO"). These individuals have alleged various forms of race discrimination and retaliation including racial harassment discrimination in hiring promotion job assignment discipline and termination. Again according to the EEOC application on December 3 1993 the EEOC Milwaukee District Office's District Director Chester V. Bailey sent a letter to Grant Langley Milwaukee City Counsel informing him that the EEOC would be investigating the race discrimination charges against the MPD as part of a single pattern and practice investigation.

The EEOC avers that during the pattern and practice investigation it served the MPD with several requests for information instructing the MPD to produce various categories of documents and to provide its position on each charge. According to the EEOC while the MPD has provided some of the requested information it has refused to produce "most of the information and documents sought by the EEOC/MDO".

As a consequence on February 9 1995 the EEOC served Subpoena No. MK-95-006 via certified mail on MPD Chief of Police Philip Arreola. The subpoena required the MPD to produce certain categories of documents to provide access to other documents and to provide its position on several charges. It also set due dates of February 21 and 24 March 10 and 24 and April 30, 1995 for responses. According to the EEOC application the MPD received the subpoena on February 13, 1995.

The City admits that it did not file a "Petition to Modify or Revoke the Subpoena" within the time specified by 29 C.F.R. SEC.1601.16(b). It asserts however that it did not file a petition seeking administrative relief from the subpoena because it was engaging in negotiations with the EEOC concerning compliance with the subpoena.

Subpoena No. MK-95-006 which is the subject of this enforcement action has a 20-page attachment which lists the information and materials sought by the EEOC under the subpoena. The information and materials are arranged under various category heads. These category heads or sections are identified as follows: A. Request for Databases; B. Request for Access; C. Materials Past Due; D. Supplements to Materials Already Submitted; and E. Materials Currently Submitted. Each of the sections in turn has a number of subsections. In its application for enforcement of the subpoena the EEOC abandoned its effort to obtain information and materials identified in the following subsections of the subpoena: A1-7; B4; C2-4; C6; C7(a)-(c); C7(e)-(f); E25-26; E28; E30; E36-37; E40; and E50-56.

After the parties had an opportunity to file memoranda and affidavits in support of their respective positions on the EEOC's application this Court conducted a conference with the parties on January 10 1996 for the purpose of better defining which subsections of the subpoena had not been complied with and were not going to be complied with absent an Order from this Court. In other words the conference was conducted to determine if there were additional subsections of the subpoena that had been already complied with or were going to be complied with thereby obviating the need for this Court to rule on the EEOC's application for enforcement with respect to those subsections.

The conference produced the following results. In addition to those subsections identified above of which the EEOC had earlier indicated that it was abandoning enforcement the EEOC stated during the conference that it believed the City had fully responded to the following subsections and therefore there was no need for this Court to rule on their enforcement: C5; C8; C12; C13; C14; C16-17; C20; D2-5; E4-5(a)-(d); E6-16; E18-26; E28-37 E41-44; E57; and E58.

At the conference the City represented to the Court that there were certain subsections of the subpoena that it had fully complied with. The City advised Court and the EEOC that Counsel would be submitting an affidavit executed by a person (or persons) in a position to aver under oath that to the extent such documents or information existed they had been provided to the EEOC thereby fully complying with the particular subsection of the affidavit in question.

Also at the conference the City agreed to comply with the following subsections of the subpoena: B5 *fn1-6; D1; E5(f)-(g); and E46.

On February 6 1996 the City filed with the Court affidavits executed by Melanie R. Swank and Dennis Wargolet. In them the City advised inter alia that subsection C7(d) had been complied with but there remained one file responsive to that subsection that had yet to be produced and when it was produced it would be in redacted form.

The City also advised that a number of subsections had been and would be complied with but responsive documents would only be provided in redacted form. Those subsections are: B1-3; B7; C7(g); C9-11; C18-19; D6; E38-39 (one "medically related document of John Wesley has been withheld"); and E47.

The City also advised that subsections D1; E2; E5(e) (f) and (g); E27; E45-46; E48; and E49 would be (or had been) fully complied with.

The net result of all of the above is that there still remains certain subsections of the subpoena to which the City objects and for which the EEOC seeks an Order of Enforcement. These are subsections B1-3; B7; C1; C7(d) and (g); C9-11; C15; C18-19; D6; E1; E3; E17; E38-39; and E47.

For purpose of clarity the text of these particular subsections of the subpoena are set out below:

B1. For each police officer recruit class in 1991 1992 1993 1994 and 1995 provide access to the complete undeleted pre-employment background investigation file for each applicant who underwent a background investigation during the selection process.

B2. Provide access to all Field Training Officer and supervisory reports performance evaluations and work location personnel files for all sworn personnel who served probation at any time from January 1 1991[ ] to the present.

B3. Provide access to all relevant Internal Affairs Division files created and maintained since January 1 1989 to be determined after receipt of the Internal Affairs Division log.

B7. For each police aide applicant who underwent a pre-employment background investigation in 1991 1992 1993 and 1994 provide access to the complete undeleted background investigation file.

C1. Submit all records correspondence and documents created by collected by and submitted to the Board of Inquiry which was appointed to handle complaints of discrimination at Districts Four and Five in October 1992.

EEOC Charge No. 260-93-0694 (Wells)

C7. On November 18, 1994 Lieutenant Lenard Wells amended EEOC charge No. 260-93-0694 to include the following:

I was further retaliated against when after criticizing the Chief of Police on October 29 and 31 1994 for race discrimination I was (a) notified on November 4, 1994 that I was being transferred effective November 13, 1994 (b) subjected to a hostile work environment at District Six on November 8, 1994 and (c) notified on November 15, 1994 that I am being investigated for alleged Rules violations.

Provide a response to each of the allegations in this amendment to specifically include the following:

d. Copies of any and all documents created since January 1, 1993 which reference reports or complaints of a hostile work environment at District Six including PI-21's memoranda investigative summaries and reports and any and all written records of the disposition of each report or complaint.

g. Complete copies of all Internal Affairs and work location personnel files for Lieutenant Wells and Captain Peter Pochowski.

EEOC Charge No. 260-95-0200 (McGee).

C9. Provide a copy of Officer McGee's complete Internal Affairs file as well as all other investigative reports which have been created with respect to Mr. McGee.

C10. Provide copies of the complete Internal Affairs files for Police Officers Lynne Kresse and Julie A. Horter.

C11. Provide copies of all documents which reference complaints about Sergeant Gary Meyer by his subordinate employees since January 1 1992 including all PI-21's investigative documents reports and dispositions.

EEOC Charge No. 260-95-443 (Payne)

C15. Provide documents showing that each Detective assigned to Homicide since April 9 1991 was better qualified than Detective Payne.

EEOC Charge No. 260-95-0418 (Holmon)

C18. For each sworn officer to whom a drug test was administered since January 1 1991[ ] (except for any routine drug test administered to all officers in a given bureau or district) provide the following:

a. Name race rank and work assignment at the time of the drug test;

b. Date the drug test was administered;

c. Reason for the drug test;

d. Name rank and work assignment of the individual who authorized the test;

e. Result of the test; and

f. Action taken as a result of the test.

C19. If Officer Holmon was subjected to a criminal investigation on or about October 27 1994 provide the following:

a. Nature of the alleged crime for which Officer Holmon was investigated;

b. How the Police Department learned of the alleged crime;

c. Name rank and work assignment of the individual who authorized the criminal investigation;

d. Written policies procedures and guidelines governing the conduct of criminal investigations of sworn personnel;

e. Beginning and ending dates of the criminal investigation of Officer Holmon;

f. Result of the criminal investigation of Officer Holmon; and

g. Identification of all other sworn personnel who were subjects of criminal investigations since January 1, 1991 including:

(1) Name race rank work assignment at the time of the criminal investigation;

(2) Beginning and ending dates of the criminal investigation;

(3) Alleged crime for which the member was investigated;

(4) Result of the investigation and

(5) If the member's personal property was released to the member.

D6. For each complaint of sexual harassment against a sworn member of the Police Department received from July 28, 1993[ ] to the present provide the following:

a. Name race and sex of complainant;

b. Rank and assignment of complainant at time of complaint;

c. Name race and sex of accused;

d. Rank and assignment of accused at time of complaint;

e. Date of complaint; and

f. Disposition with date of disposition.

E1. For the period January 1, 1989[ ] to the present submit copies of all analyses reports validation studies and related documentation covering selection procedures for hiring promotion transfer assignment demotion and termination (voluntary and involuntary) [ ] as required by the Uniform Guidelines on Employee Selection Procedures.

E3. Provide copies of all reports and analyses authorized prepared and received by the Chief of Police since January 1 1989 on the following topics[ ] and which were not provided in response to Item E1 above:

a. Recruit and Hire of Police Aides and Police Officers and the selection process (including any part thereof) for these position[s];

b. Assignments and transfers of Police Officers;

c. Promotions;

d. Administration of disciplinary actions (including Alternative Discipline);

e. Retention of minority and/or female Police Officers;

f. Discriminatory and/or hostile work environment.

E17. In chronological order[ ] beginning with January 1, 1991[ ] and extending to the present identify each vacant position in the Tactical Enforcement Unit which was posted and to which a Police Officer was assigned. For each posted vacancy identified provide the following:

a. Date of posting;

b. Copy of posting;

c. Brief description of each component in the selection process including the role of the Internal Affairs Division if any;

d. Criteria used in the selection process;

e. Name race sex and date of appointment of each Police Officer who requested consideration for the position;

f. Name race sex race and work assignment of all recommending and selecting officials; and

g. Selectee's name race sex date of appointment and beginning and ending dates of assignment to the Tactical Enforcement Unit.

E38. Submit all documents (including but not limited to complaints reports of complaints notes about reported complaints investigative records and memoranda) referring to citizen complaints against Detective Wesley created since August 22, 1993.

E39. Submit a copy of the complete work location personnel file for Detective John Wesley including (but not limited to) work location records maintained during the periods Detective Wesley worked at the Police Training Academy and the Criminal Investigation Bureau.

E47. Identify individuals on the 1991 Police Sergeant eligibility list who formally or informally complained of discriminatory employment practices with the name of the complainant and date of the complaint. Provide copies of the documents referring to each complaint.

Before turning to the merits of this action there are several procedural motions outstanding which need to be addressed. Each of the parties has filed extensive materials in support of their respective positions on the issues in this case. These materials include memoranda of law as well as affidavits together with exhibits.

On October 31, 1995 the EEOC filed a "Motion for Leave to File a Reply Brief" exceeding 15 pages. The City in turn filed a "Motion to Strike the EEOC's Reply Brief and to Deny its Motion for Leave to File the Reply Brief Exceeding 15 Pages." In support of its Motion the City filed an Affidavit of Bruce B. Schrimpf. Responding to the City's Motion the EEOC filed a "Motion to Strike the Affidavit of Bruce B. Schrimpf."

The EEOC's "Motion for Leave to File a Reply Brief Exceeding 15 Pages" will be GRANTED and the City's "Motion to Strike the Reply Brief" will be DENIED. Similarly the EEOC's "Motion to Strike the Affidavit of Bruce B. Schrimpf" will be DENIED. All materials presently on file with this Court will be considered in rendering a decision in this matter.

Analysis

The City objects to the enforcement of the subpoena on various grounds. As the EEOC points out however (and as is conceded by the City) the City has made no attempt administratively to modify or quash the subpoena in accordance with the EEOC's procedural regulations set out in 29 C.F.R. SEC. 1601.16(b). For this reason alone the EEOC argues that the subpoena should be enforced in its entirety because the City's failure to exhaust administrative remedies precludes it from raising defenses to the judicial enforcement of the subpoena.

29 C.F.R. SEC. 1601.16(b) provides in pertinent part that:

Any person served with a subpoena who intends not to comply therewith shall within five days (excluding Saturdays Sundays and federal legal holidays) after the date of service of the subpoena upon him or her petition the General Counsel by mail to revoke or modify the subpoena . . . The petition shall separately identify each portion of the subpoena with which the petitioner does not intend to comply and shall state with respect to each such portion the grounds upon which the petitioner relies . . . The General Counsel shall make a determination upon the petition stating reasons and shall submit the petition and determination to the Commission for its review. The Commission shall review the petition and make a final determination . . . Provided however That whenever the subpoena was issued by the District Director . . .the petition to revoke or modify the subpoena shall be mailed to the Director within the five day period specified above who will make a determination on the petition. Any petitioner who wishes to appeal the determination of the Director shall do so by following the standard procedures specified above. . .

As noted it is undisputed that the City failed to administratively challenge the instant subpoena. To be sure the City argues that its failure to do so should be excused "because it had been engaged in serious negotiations with the EEOC/MDO prior to the service of the subpoena at issue. . . . [and that] . . .the purpose of these negotiations was to reach an agreement by which the City could comply with the EEOC/MDO's demands relating to its pattern and practice investigation while at the same time protecting the confidential and sensitive nature of many of the documents demanded." (City's Memorandum p. 17). The fact of the matter remains however that after the subpoena was served upon the City i.e. on or about February 13, 1995 the City did not pursue any relief via the administrative process. *fn2

It is well established that a litigant will normally be denied judicial relief for injury until administrative remedies have been exhausted. And where in the context of an administrative subpoena enforcement action a litigant has failed to exhaust its administrative remedies in challenging the subpoena such litigant is thereby precluded from raising defenses to the judicial enforcement of the subpoena. EEOC v. Roadway Express Inc. 569 F. Supp.1526 1528 (N.D. Ind. 1983). See also EEOC v. Cuzzens of Georgia Inc. 608 F.2d 1062 (5th Cir.1979); EEOC v. County of Hennepin 623 F. Supp.29 (D. Minn. 1985).

As Court noted in Roadway Express Inc. there are strong public policy considerations supporting the doctrine requiring exhaustion of federal administrative proceedings as a prerequisite to judicial relief. They are: "(1) to avoid premature interruption of the administrative process; (2) to allow the agency to compile an accurate factual record exercise its discretion or apply its expertise; (3) to improve the efficiency of the administrative agency; (4) to conserve scarce judicial resources since the complaining party may be successful in vindicating rights in the administrative process and Court may never have to intervene; (5) to give the agency a chance to discover and correct its own errors; and (6) to avoid the possibility that 'frequent and deliberate flouting of administrative processes could weaken the effectiveness of an agency by encouraging people to ignore its procedures.'" Roadway Express Inc. at 1528-29.

While it may be true that there are exceptions to the exhaustion of remedies judicial doctrine see Patsy v. Florida International University 634 F.2d 900 903-04 (5th Cir.1981) *fn3 the City has not demonstrated that it is the beneficiary of any of those exceptions.

Rather than try to place itself into one of the exceptions to the exhaustion requirement the City attempts to take the subpoena head-on by asserting that "certain sections of the EEOC/MDO subpoena are too indefinite not reasonably relevant to the charges of the investigation and are unduly burdensome in that compliance would seriously threaten the normal operations of the Milwaukee Police Department." (Response to Application for Enforcement of Administrative Subpoena P 12). But these are objections that should have more properly been invoked by way of a petition to revoke or modify the subpoena under 29 C.F.R. SEC.1601.16(b). Accordingly the City is in pretty much the same predicament as was the respondent in EEOC v. Roadway Express Inc. Like the respondent in that case the City by virtue of its own action (or inaction) ". . . has foreclosed its right to raise objections to the enforcement of the EEOC subpoena." Roadway Express Inc. at 1529. With that said one might be tempted to order enforcement of the EEOC subpoena without any further discussion or analysis. I decline to succumb to that temptation. I believe that the parties and the public are entitled to a more thorough treatment of the issues presented in this action.

Although there are a number of subsections of the subpoena to which the City objects (as more particularly listed above) the City has cogently distilled the issues in this action to come down to the following:

The major focus of this enforcement action and the information the City objects to disclosing includes:

1. Whether the EEOC/MDO should be given access to the files of on-going Internal Affairs investigators files;

2. whether the City/MPD is required to disclose names and identifying information of confidential informants when those informants have been given assurances that the information they gave would be kept confidential; in light of the fact that the EEOC/MDO has made clear that it intends to re-interview those informants;

3. whether certain documents containing information relating to juvenile records, medical records, records of sexual abuse/assault and allegations of illegal drug use by members must be disclosed to the EEOC/MDO by the City/MPD; and

4. whether entry level selection materials should be disclosed absent a confidentiality agreement.

City's "Memorandum in Opposition to EEOC Application for Enforcement of Administrative Subpoena " p. 4.

The City argues inter alia that were the EEOC to be given access to any ongoing Internal Affairs investigators files such could severely compromise ongoing investigations. Moreover the City argues that were it to provide any information that it had received during applicant background investigations from individuals who were promised confidentiality in return for providing such information such would forever render promises of confidentiality in such background investigations a nullity. It would then effectively be prevented from gaining important information relating to applicants and this would severely threaten the operations of the MPD's business.

Similarly the City argues that if the EEOC were to be provided information contained in the ongoing Internal Affairs investigators files such disclosure would make it impossible for the Internal Affairs Division to conduct its investigations of MPD Rule violations and/or alleged criminal acts of MPD members. In other words the disclosure of such information (together with the potential interviewing of the sources of such information by the EEOC) "would threaten the normal operations or . . . [the business] of the MPD." EEOC v. Bay Shipbuilding Corp. 668 F.2d 304 313 (7th Cir.1981). In essence the City argues that to disclose the above-described information would threaten its normal operations by rendering its promises of confidentiality a sham.

In response to the City's concerns the EEOC notes that subpoena enforcement proceedings are summary in nature and the federal court's role is "sharply limited." EEOC v. Tempel Steel Co. 814 F.2d 482 485 (7th Cir.1987). Indeed the Seventh Circuit most recently had an opportunity to address this issue in EEOC v. Quad/Graphics Inc. 63 F.3d 642 (7th Cir.1995). In that case Court stated:

As a general proposition courts enforce an administrative subpoena if it seeks reasonably relevant information is not too indefinite and relates to an investigation within the agency's authority . . .

Quad/Graphics Inc. at 645.

The cases cited by the City in support of its excessive burden argument do not involve precisely the issue here presented i.e. whether revealing confidential information will threaten the normal operations of the respondent's "business" of law enforcement. Rather those cases deal with the more commonly confronted situation of a commercial business having its operations severely impacted by the time needed to be taken by personnel to comply with the subpoena. E.g. EEOC v. A.E. Staley Mfg. Co. 711 F.2d 780 (7th Cir.1983); EEOC v. Bay Shipbuilding Corp. 668 F.2d 304 (7th Cir.1981); EEOC v. Quad/Graphics Inc. 868 F. Supp.1078 (E.D. Wis. 1994). They are therefore of limited assistance in this case. Of more assistance are EEOC v. Associated Dry Goods Corp. 449 U.S. 590 66 L. Ed. 2d 762 101 S. Ct.817 (1981) and University of Pennsylvania 493 U.S. 182 107 L. Ed. 2d 571 110 S. Ct.577 (1990).

In Associated Dry Goods the Supreme Court held that an employer has no categorical right to refuse to comply with an EEOC subpoena without the employer first being assured that the information supplied will be held in absolute secrecy. Instead the employer-respondent was entitled only to assurance that each employee filing a charge against it would see information in no file other than his or her own consistent with 42 U.S.C. SEC. 2000e-5(b). Associated Dry Goods at 604.

More recently the Supreme Court decided University of Pennsylvania v. EEOC 493 U.S. 182 107 L. Ed. 2d 571 110 S. Ct.577 (1990). In that case Court rejected a claim by the University of Pennsylvania that the EEOC should not have access via subpoena to "confidential peer review information." The University had argued inter alia that Court should recognize a qualified common-law privilege against disclosure of confidential peer review materials and to require a judicial finding of particularized necessity of access beyond a showing of mere relevance before peer review materials are disclosed to the Commission. Court noting that Congress had provided some protection of confidentiality for the subpoenaed material under 42 U.S.C. SEC. 2000e-8(e) upheld the orders of the lower court compelling disclosure to the EEOC. It stated:

. . . We stand behind the breakwater Congress has established: unless specifically provided otherwise in the statute the EEOC may obtain "relevant" evidence. Congress has made the choice. If it dislikes the result it of course may revise the statute.

University of Pennsylvania at 194.

Turning from the Supreme Court to cases decided by the Seventh Circuit in EEOC v. Bay Shipbuilding Corp. 668 F.2d 304 (7th Cir.1981) Court rejected an argument that the EEOC subpoena was overly broad because it sought "supposedly confidential information concerning management and executive employees." Bay Shipbuilding Corp. at 312. In doing so Court stated:

. . . As held in EEOC v. University of New Mexico supra 504 F.2d 1296 1303 confidentiality is no excuse for noncompliance since Title VII imposes criminal penalties for EEOC personnel who publicize information obtained in the course of investigating charges of employment discrimination. 42 U.S.C. SEC. (s) 2000e-5(b) 2000e-8(e).

Bay Shipbuilding Corp. at 312.

In EEOC v. Illinois Department of Employment Security 995 F.2d 106 (7th Cir.1993) the Seventh Circuit reversed the lower court's refusal to enforce an EEOC subpoena. The EEOC in that case was seeking the transcript of an unemployment compensation hearing believing it contained evidence relevant to an investigation the EEOC was conducting. The Illinois Department of Employment Security ("IDE") refused to provide a copy of the transcript citing a state statute making unemployment compensation proceedings confidential. The District Court refused to order the IDE to give the EEOC a copy ruling that the state agency's interest in confidentiality outweighed the federal agency's interest in conducting its investigation.

In reversing the District Court the Seventh Circuit held:

Federal common law recognizes many privileges and the traditional ones are available even though a federal agency invokes a broad statutory power to gather evidence. E.g. Upjohn Co. v. United States 449 U.S. 383 397-99 66 L. Ed. 2d 584 101 S. Ct.677 (1981) (summonses issued by the IRS under 26 U.S.C. SEC. 7602 are subject to established privileges such as the Counsel work-product doctrine). University of Pennsylvania v. EEOC 493 U.S. 182 107 L. Ed. 2d 571 110 S. Ct.577 (1990) warns against augmenting the list. A University contended that the disclosure of details about evaluations of candidates for tenure would jeopardize the advancement of knowledge by interfering with candid and thus accurate assessments of academic achievements and potential. Court conceded that disclosure might have such effects but concluded that existing law nonetheless entitled the Commission to obtain the information. Courts should honor statutes granting access to information. University of Pennsylvania joined other recent decisions that have declined opportunities to create new evidentiary privileges or expand old ones. E.g. Trammel v. United States 445 U.S. 40 63 L. Ed. 2d 186 100 S. Ct.906 (1980); Branzburg v. Hayes 408 U.S. 665 33 L. Ed. 2d 626 92 S. Ct.2646 (1972).

Illinois Dept. of Employment Security at 107-08.

Similarly in EEOC v. County of San Benito 818 F. Supp.289 (N.D. Ca. 1993) the District Court enforced three administrative subpoenas served by the EEOC upon the respondent which subpoenas required the County of San Benito to produce documents relevant to the EEOC's investigation of three charges of sex discrimination and retaliation filed against the County. Each of the subpoenas sought among other documents a copy of the County's report recommending disciplinary action against one of the complaining party's Supervisors and the personnel records of that supervisor including performance evaluations Counseling memoranda time and attendance records and awards.

Like the City in the instant case the respondent in County of San Benito failed to file a petition to revoke or modify the subpoenas served upon it. Nevertheless the County argued against enforcement of the subpoenas on the grounds that state law required a county to refuse to disclose to the Commission a peace officer's personnel records and information obtained from those records. County of San Benito at 290.

In rejecting the County's argument Court ruled that California's confidentiality laws relating to peace officers did not provide a basis for declining to comply with the EEOC subpoenas. In doing so it noted that "Court have decided that the federal Equal Employment Opportunity Commission's mandates preempt state restrictions " citing Garrett v. City and County of San Francisco 818 F.2d 1515 1519 n. 6 (9th Cir.1987); Breed v. United States District Court for the Northern District of California 542 F.2d 1114 1115 (9th Cir.1976); Carr v. Monroe Mfg. Co. 431 F.2d 384 388 (5th Cir.1970); Dorsten v. Lapeer County General Hospital 88 F.R.D. 583 585-86 (E.D. Mich. 1980); EEOC v. Bay Shipbuilding Corp. 668 F.2d 304 312 (7th Cir.1981); EEOC v. Roadway Express Inc. 750 F.2d 40 43 (6th Cir.1984); and Kerr v. United States District Court for the Northern District of California 511 F.2d 192 197 (9th Cir.1975).

There may be some risk that disclosure of the subpoenaed information will jeopardize the unfettered free flow of information from confidential sources to the MPD regarding the background of applicants and regarding ongoing internal investigations at the MPD. But as was the case in University of Pennsylvania existing law nonetheless entitles the EEOC to obtain the subpoenaed information if: (1) the subpoena relates to an investigation within the agency's authority; (2) the information sought is reasonably relevant to the inquiry; *fn4 and (3) the demand is not too indefinite or unreasonably broad or burdensome. EEOC v. Quad/Graphics Inc. supra; United States v. Westinghouse Electric Corp. 788 F.2d 164 167 (3rd Cir.1986).

I am not insensitive to the concerns of the City over what impact disclosure to the EEOC of "confidentially obtained" information could have on the City's being able to obtain such information in the future. But if the above stated subpoena enforcement standards are met production of such information is required. Were that not the case an entity such as the Milwaukee MPD could unilaterally thwart a legitimate investigation into its employment practices by merely invoking the cloak of confidentiality. An entity that is the subject of a legitimate investigation surely cannot be allowed to control the scope of that legitimate investigation.

This is not to say that the EEOC is free to do with the subpoenaed information and documents whatever it wishes. To the contrary the provisions of 42 U.S.C. SEC.(s) 2000e-5(b) and 2000e-8 make it a criminal offense for an officer or employer of the EEOC to make public any information obtained during an investigation except when the matter goes to litigation. Furthermore the provisions of 29 C.F.R. 1601.22 and 5 U.S.C. SEC.(s) 522(b)(6) and (b)(7) likewise regulate severely the disclosure of information and documentation which the EEOC would receive via this subpoena.

Finally section 23.9 of the EEOC Compliance Manual requires EEOC investigators to Counsel witnesses during witness interviews that they have the right to make their statements in confidence. If they make such an election the witness must sign a "Confidentiality Election Statement."

In sum if the information demanded in a particular subsection of the subject EEOC subpoena relates to an investigation within the agency's authority is reasonably relevant to the inquiry and the demand is not too indefinite or unreasonably broad or burdensome the enforcement of that particular subsection of the subpoena should be ordered.

I find that the subpoena clearly relates to an investigation within the agency's authority. The EEOC is conducting a pattern and practice investigation that stems from the filing of charges by more than 30 African-Americans who are MPD officers or unsuccessful applicants for MPD employment alleging various forms of race discrimination and retaliation including racial harassment discrimination in hiring promotion job assignment discipline and termination.

As to the second element I find that the information and documents sought in subsections B1-B3; B7; C1; C7(d) and (g); C9-11; C18-19; E1; E3; E17; E38-39; and E47 of the subpoena with the exceptions noted below are reasonably relevant to that inquiry. Furthermore the information and documents demanded under each of those subsections of the subpoena are neither too indefinite nor unreasonably broad or burdensome. Accordingly the EEOC's Motion to enforce those subsections of the subpoena with the exceptions noted below will be GRANTED.

According to the City the documents identified in subsection C7(g) include the medical record (i.e. a psychological file) of a "third party not involved in any of the discrimination complaints being investigated by the EEOC/MDO." (City's Memorandum p. 15). Similarly the documents identified in subsection C9 include the medical records of Mrs. McGee and as such are the medical records of "neither a complainant nor of a comparatur." (City's Memorandum p. 15).

At the January 10 1996 conference the EEOC took the position that it did not know whether the above-stated documents were relevant or not. Therefore because those documents for whatever reason had found their way into the files identified in subsections C7(g) and C9 the EEOC felt it was entitled to their production. I disagree.

I fail to see how these medical records of third parties are reasonably relevant to the inquiry being conducted by the EEOC. Accordingly the EEOC's application for an order enforcing or compelling production of these particular documents from the files identified in subsections C7(g) and C9 is DENIED.

Subsection D6 of the subpoena seeks information relating to sexual harassment complaints against any sworn members of the police department received from July 28 1993 to the present. According to the application for enforcement of administrative subpoena the EEOC avers that it is conducting a pattern and practice investigation into race discrimination charges against the MPD. On its face the information sought under subsection D6 would appear to be beyond the scope of the investigation and therefore not reasonably relevant. Yet in its reply brief the EEOC represents that "the information now requested is required to resolve the charges of Officer Lovett and Officer Allen Lane in which they allege that the MPD investigated charges of sexual harassment against them but not against similarly-situated Caucasian officers." (EEOC's Reply Memorandum p. 36). Although it may be a close call based on the representation of the EEOC I find that the information sought in subsection D6 is reasonably relevant to the inquiry. Accordingly the EEOC's motion to enforce subsection D6 will likewise be GRANTED.

The same cannot be said of subsection C15. As was discussed with the parties at the conference on January 10 1996 I find this particular demand to be too indefinite and ambiguous. Therefore enforcement of this subsection of the subpoena will be DENIED.

Whether this Court has the authority to order the EEOC over its objection to maintain the confidentiality of the subpoenaed information and documents more strictly than required by current law is debatable. See e.g. EEOC v. C & P Telephone Co. 813 F. Supp.874 876 (D.C. Cir.1993). In this action however the EEOC has stated that it is willing to abide by the terms of the confidentiality agreement that it proposed to the City on March 2 1995. A copy of that proposed agreement is attached to the August 16 1995 Affidavit of Rita J. Burns as Exhibit F. I have reviewed that proposed agreement. Because the EEOC has stated its willingness to abide by that agreement and because I believe the provisions of the proposed agreement are reasonable IT IS HEREBY FURTHER ORDERED that Sections III-12; III-13; III-14; III-15; IV-16(a)-(b); IV-17; IV-18(a)-(h); IV-19; and IV-20 of that proposed agreement shall be applicable to the information and documents the production of which are governed by this Order of Enforcement.

NOW THEREFORE IT IS ORDERED that the EEOC's application to enforce Subpoena No. MK-95-006 is GRANTED in part and DENIED in part.

IT IS FURTHER ORDERED that Respondent the City of Milwaukee be and hereby is directed to comply with subsections: B1-B3; B7; C1; C7(d) and (g) (with the exception noted in this Decision); C9 (with the exception noted in this Decision); C10-11; C15; C18-19; D6; E1; E3; E17; E38-39; and E47 of EEOC Subpoena No. MK-95-006.

IT IS FURTHER ORDERED that Respondent City of Milwaukee supply the EEOC with the requested information and documents within six weeks of the date of this Decision and Order.

Your attention is directed to 28 U.S.C. SEC. 636(b)(1)(A) and Local Rule 13.02 (E.D. Wis.) whereby written appeal from any order herein or part thereof may be filed within ten days hereof.

SO ORDERED.

WILLIAM E. CALLAHAN JR.

 
Notes:

*fn1 According to the affidavit of Melanie Swank filed with Court on February 6 1996 the EEOC no longer is demanding a response to subsection B5.

*fn2 Court cannot very easily excuse the City's failure to follow administrative procedures in challenging the subpoena. After all the City is not akin to a pro se litigant. To the contrary it is represented by able Counsel. Moreover the City did administratively challenge an earlier EEOC subpoena by filing a petition to Modify the Subpoena. In that earlier proceeding the EEOC Executive Secretariat in Washington D.C. denied the City's petition on December 12 1994.

*fn3 Traditionally exhaustion is not required when: (1) the prescribed administrative remedy is plainly inadequate because either no remedy is available the available remedy will not give relief commensurate with the claim or the remedy would be so unreasonably delayed as to create a serious risk of irreparable injury; (2) when the claimant seeks to have a legislative act declared unconstitutional and administrative action will leave standing the constitutional question; (3) when the question of the adequacy of the administrative remedy is for all practical purposes coextensive with the merits of the plaintiff's claim such as when for example the plaintiff contends that the administrative system itself is unlawful or unconstitutional in form or application; or (4) when it would be futile to comply with the administrative procedures because it is clear that the claim will be rejected. Patsy at 903-04.

*fn4 And for purposes of an administrative subpoena the notion of relevancy is a broad one. EEOC v. Elrod 674 F.2d 601 613 (7th Cir.1982).