Equal Employment Opportunity Commission v. Delaware State Police 00-5083 IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________________________________ No. 00-5083 _______________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Applicant/Appellant, v. DELAWARE STATE POLICE, Respondent/Appellee. ___________________________________________________________ On Appeal from the United States District Court for the District of Delaware ___________________________________________________________ REPLY BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION ___________________________________________________________ C. GREGORY STEWART General Counsel PHILIP B. SKLOVER Associate General Counsel EQUAL EMPLOYMENT LORRAINE C. DAVIS OPPORTUNITY COMMISSION Assistant General Counsel Office of General Counsel 1801 L Street, N.W. JENNIFER S. GOLDSTEIN Washington, DC 20507 Attorney (202) 663-4733 TABLE OF CONTENTS TABLE OF AUTHORITIES..................................................ii 1. Congress Considered the Issue of Confidentiality When It Chose to Bestow Broad Powers Upon the EEOC to Obtain Relevant Evidence..................... 3 2. The Subpoenaed Information Is Relevant to the Commission's Investigation of Taylor's Charge.................................................10 3. Respondent has Made No Showing of Improper Purpose or Bad Faith............. 13 CONCLUSION.............................................18 ADDENDUM CERTIFICATE OF SERVICE IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________________________________ No. 00-5083 _______________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Applicant/Appellant, v. DELAWARE STATE POLICE, Respondent/Appellee. ___________________________________________________________ On Appeal from the United States District Court for the District of Delaware ___________________________________________________________ REPLY BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION ___________________________________________________________ In our opening brief, we argued that when the Commission undertakes an administrative investigation of a discrimination charge, Title VII provides the Commission with powerful statutory authority to acquire information relevant to that investigation. Title VII states specifically that, when conducting an investigation, the Commission "shall at all reasonable times have access to . . . any evidence . . . that . . . is relevant to the charge under investigation." 42 U.S.C. § 2000e-8(a) (emphasis added). We pointed out that the Supreme Court and other federal courts repeatedly have recognized Congress' wish that the Commission have a broad right of access to all relevant information when it conducts an administrative investigation. We argued that the district court accordingly abused its discretion when it refused to order respondent to provide the information the Commission believes is necessary to conclude its investigation of Ivan Taylor's discrimination and retaliation charge. In its brief as appellee, respondent initially acknowledges the Commission's broad statutory authority to obtain information relevant to an administrative investigation. Resp. Br. at 8-9. However, respondent goes on to argue that the Commission should not have access to information it seeks in this case. While respondent's contentions are incorrect for a number of different reasons, which we address below, one fundamental flaw pervades respondent's brief. Respondent confuses discovery requests made in the civil litigation context with Commission requests for information made in the context of a non-public, administrative investigation. It is only in the latter context, present here, that the powerful statutory authority for access to information applies. Strikingly, respondent cites not a single case in which a court has denied the Commission's request for information at the administrative investigation stage. Respondent instead focuses on two district court opinions addressing discovery in the context of civil litigation. The standards for producing information are not the same in these two different contexts. Whether or not the state troopers' personnel records would be discoverable in civil litigation is simply not at issue here. This is an administrative investigation case. We therefore urge this Court, consistent with abundant legal authority, to apply the provisions of Title VII relevant to administrative investigations and order respondent to produce the information necessary for the Commission's investigation. 1. Congress Considered the Issue of Confidentiality When It Chose to Bestow Broad Powers Upon the EEOC to Obtain Relevant Evidence. In the central case of University of Pennsylvania v. Equal Employment Opportunity Commission, 493 U.S. 182 (1990), the Supreme Court determined that when it enacted Title VII, Congress considered confidentiality concerns and made a decision as to how to strike the balance between those concerns and the Commission's need for access to a respondent's records. What Congress decided, the Court stated, is that the Commission would have "a broad right of access to relevant information." Under this "relevancy" test, the respondent plainly should provide the Commission with the subpoenaed information. In its brief on appeal, respondent in effect urges this Court to disregard the choice Congress has made and allow a new weighing of competing interests. Resp. Br. at 21. Respondent's argument on its face runs counter to Title VII and controlling authority. As the Supreme Court stated: "The balancing of conflicting interests . . . is particularly a legislative function." University of Pennsylvania, 493 U.S. at 189. The Court went on conclude that it would "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." Id. at 194. Respondent has pointed to no Title VII provision exempting police department personnel records from administrative investigations.<1> Congress' choice accordingly should stand and permit the Commission to obtain the requested evidence. Respondent downplays the significance of University of Pennsylvania, suggesting that the Supreme Court's holding is narrowly limited to the facts of that case. Resp. Br. at 16. The Court's decision is not written narrowly, however, but instead speaks broadly to Congress' weighing of competing interests and its decision to afford the Commission a broad right of access to any relevant evidence. University of Pennsylvania, 493 U.S. at 193-94. Moreover, courts following University of Pennsylvania have not limited it to cases involving academic institutions. See, e.g., EEOC v. City of Milwaukee, 54 F. Supp.2d 885, 892-93 (E.D. Wis. 1999) (applying University of Pennsylvania and ordering police department to turn over materials). Nothing in the legislative history of Title VII, which the University of Pennsylvania Court invoked, justifies distinguishing academic institutions from state police departments. With respect to academic institutions, the Supreme Court found it significant that when Congress extended Title VII's coverage to such institutions in 1972, it created no special protection for the institutions' peer review materials. University of Pennsylvania, 493 U.S. at 189. The Court stressed that Congress plainly was aware that discrimination existed in awarding tenured academic positions, and yet chose not to insulate tenure decisions from Commission investigations. Id. at 189-90 (citing legislative history discussing discrimination in higher education). When Congress eliminated the exemption for states in the 1972 amendments to Title VII, it similarly carved out no special protection for police departments. Just as it did with discrimination in tenure decisions, Congress emphasized that considerable discrimination existed in state and local police departments. Indeed, a report of the U.S. Commission on Civil Rights incorporated as an exhibit in the Senate debates concluded: "Barriers to equal employment are greater in police and fire departments than in any other area of State and local government." 118 Cong. Rec. 1817 (1972), reprinted in Legislative History of the Equal Employment Opportunity Act of 1972 at 1118 (1972); see also H.R. Rep. No. 92-238, at 17 (1971), reprinted in 1972 U.S.C.C.A.N. 2137, 2153 (decrying underrepresentation of Mexican Americans from police departments). Accordingly, Congress plainly was aware that the records of police departments would be subject to Commission investigations, and yet - as with academic peer review materials - Congress created no special exemption for those records. Respondent also attempts to distinguish University of Pennsylvania on the grounds that, unlike academic peer review materials, a longstanding privilege already exists for the materials the Commission seeks in its investigation. Resp. Br. at 16 (referring to a "governmental privilege"). It is true as a general matter that governmental privileges have a long history in federal law, dating back to President Jefferson's assertion of a state secrets privilege in the trial of Aaron Burr. See 26A Charles Alan Wright & Kenneth W. Graham, Federal Practice and Procedure § 5673 (1992). However, governmental privileges do not encompass every aspect of government work. Indeed, this Court has cautioned against extending the scope of governmental privileges beyond those delineated by the Supreme Court. United States v. O'Neill, 619 F.2d 222, 230 (3d Cir. 1980); see also Crawford v. Dominic, 469 F. Supp. 260, 263-64 (E.D. Pa. 1979) ("the privilege is designed only to protect those documents whose disclosure would so seriously hamper the operation of government that they should be kept secret notwithstanding their utility"). Respondent has made no showing that any longstanding governmental privilege exists in federal common law for the personnel records of state police officers. See generally Crawford, 469 F. Supp. at 264-65 (rejecting argument that police personnel files are privileged); compare Frankenhouser v. Rizzo, 59 F.R.D. 339, 343-46 (E.D. Pa. 1973) (ordering discovery of files relating to police investigations of a crime). Absent any federal common law privilege, a state-created privilege cannot govern evidentiary questions, as respondent's principal authority recognizes. See, e.g., Hatchett v. City of Wilmington, No. 97-302-LON (D. Del. Nov. 26, 1997) at ¶ 3 ("a federal court is not bound to enforce state-created privileges"); see also 26A Wright & Graham, Federal Practice and Procedure § 5685 ("state privilege law does not apply in [federal] civil rights cases"). We do not mean to suggest that state-created privileges are irrelevant in federal cases, but as even respondent's primary authority acknowledges, "'[a] privilege whose source is State law . . . will be recognized in [the] "spirit of comity" only to the extent consistent with the overriding federal policy of the civil rights laws.'" Hatchett at ¶ 3 (citation omitted). As we argued in our opening brief, prohibiting access to personnel files is wholly inconsistent with the federal policy embodied in Title VII. That policy confers upon the Commission "a right to obtain evidence" during its administrative investigation.<2> University of Pennsylvania, 493 U.S. at 192. The Delaware state law creating a privilege for personnel files therefore must be preempted to the extent it prohibits the Commission from obtaining relevant evidence. See cases cited in EEOC Br. at 12. In our opening brief, the Commission cited considerable authority in addition to University of Pennsylvania holding that an employer's interest in the confidentiality of its records cannot serve to deny the Commission access to those records during the course of an administrative investigation, and that any state law limiting access is preempted by Title VII. Respondent attempts to distinguish those cases on factual grounds.<3> With regard to its discussion of some cases, respondent's characterization of the case is simply incorrect. Compare, e.g., Resp. Br. at 20 ("Hennepin did not find preemption") with EEOC v. County of Hennepin, 623 F. Supp. 29, 32 (D. Minn. 1985) ("The [Minnesota] Data Practices Act frustrates the federal scheme embodied in Title VII. Title VII, therefore, preempts the Data Practices Act[]. . . ."). In any event, whatever factual distinctions may exist, those distinctions do not undermine the two basic legal principles set out in the cases cited: (1) that Title VII does not allow confidentiality concerns to justify refusing to disclose relevant information at the administrative investigation stage; and (2) that any state law prohibiting or otherwise limiting disclosure is preempted by Title VII of the Civil Rights Act. Finally, throughout its discussion of confidentiality, respondent accuses the Commission of making new arguments on appeal and suggests it is somehow improper for the Commission to cite additional authority in its appellate brief. See, e.g. Resp. Br. at 17, 22 ("EEOC comes to this Court with different cases and different arguments"). The Commission was indeed more comprehensive in its discussion of authority in its appellate brief, but this is in no way improper. See, e.g., Ruggero J. Aldisert, Winning on Appeal: Better Briefs & Oral Argument 105 (1992) (urging appellate counsel to "go back to the books" and conduct extensive "additional research" after notice of appeal has been filed). As to the Commission's argument, this Court has been presented with the same argument that was made below: that the Delaware state statute and confidentiality concerns cannot justify noncompliance with the Commission's subpoena. It is true that one point was not made below, namely the Commission's questioning of whether the Delaware statute is even intended to apply in the context of administrative investigations. EEOC Br. at 17-18. However, this point is simply part of the primary issue raised by the Commission - whether the privilege incorporated into the state statute can properly bar Commission access to relevant information. The applicability of the statute falls within this issue, and so may be addressed upon appeal. See Yee v. Escondido, 503 U.S. 519, 534 (1992) ("Once a federal claim is properly presented, a party can make any argument in support of that claim; parties are not limited to the precise arguments they made below.").<4> 2. The Subpoenaed Information is Relevant to the Commission's Investigation of Taylor's Charge. We argued in our opening brief that, at the investigatory stage, the concept of relevancy is construed broadly in order to allow the Commission access to any evidence that might cast light upon the allegations made against the employer. Respondent attacks the Commission's request for information, arguing in favor of an extremely narrow construction of relevancy that apparently would allow access to records only of those individuals with precisely the same record as Taylor. Resp. Br. at 24. Such an argument flies in the face of the Supreme Court's decision in EEOC v. Shell Oil Co., 466 U.S. 54, 68 (1984), where the Court recognized the broad concept of relevancy at the administrative stage. Respondent argues that the Commission may only acquire evidence relating to officers who are "'similarly-situated in all respects'" to Ivan Taylor. Resp. Br. at 24 (emphasis added) (citation omitted). Respondent argues that because the other officers did not commit the exact same infractions as Taylor, the Commission cannot have access to their disciplinary records. This rigid standard urged by respondent is at odds with this Court's decision in Franklin & Marshall College, where the Court declared Title VII "affords the EEOC access 'to virtually any material that might cast light on the allegations against the employer.'" EEOC v. Franklin & Marshall College 775 F.2d 110, 116 (3d Cir. 1985) (quoting Shell Oil, 466 U.S. at 68-69). Even outside the context of administrative investigations, this Court consistently has rejected a standard that would limit a plaintiff's comparison to only those individuals who are the same in all respects. See, e.g., San Filippo v. Bongiovanni, 30 F.3d 424, 432-33 (3d Cir. 1994) (rejecting argument that plaintiff may only make comparison to other employees precisely equivalent in offenses committed); Bennun v. Rutgers State Univ., 941 F.2d 154, 178 (3d Cir. 1991) (holding that treatment of two professors may be compared even though professors differed in several respects). Respondent contends that the officers are similar to Taylor only insofar as they were or are employed by the Delaware State Police, and that the Commission's argument would allow it access the disciplinary file of every past or present state trooper. Resp. Br. at 23-24. This contention is without merit. The relevancy standard, while broad, requires a sufficient likeness such that an inference of discrimination and/or retaliation could be drawn from a comparison between the treatment of two individuals. Given this standard, the Commission would not be entitled to the disciplinary files of every state trooper in its investigation of Taylor's charge. Respondent's contention that the Commission's argument would entitle it to the personnel file of every state trooper is further belied by the information actually requested by the Commission in this case. The information the Commission sought for its investigation of Taylor's charge was extremely limited in nature. The Commission's subpoena requests information about only six other state troopers who committed infractions during the early 1990's, when the incidents relating to Taylor's discipline occurred. Compare Maull v. Delaware State Police, No. 99-179-JJF (D. Del. May 24, 2000) (holding disciplinary records of 61 Delaware State Troopers were relevant to discrimination claim and ordering discovery). Furthermore, as respondent's own brief acknowledges, most of the officers were disciplined for "conduct unbecoming," the very same category of offense for which Taylor was disciplined. Resp. Br. at 25-26. Additionally, the subpoena itself makes apparent that the officers committed infractions relating to their conduct with women. It may be the case that the infractions committed by the other officers were not sufficiently similar to those committed by Taylor to warrant any inference of discrimination or retaliation, or otherwise shed any light on Taylor's claims. The Commission is not arguing that the requested information ultimately will show discrimination. We are simply arguing that we need to see the documents in order to determine whether Taylor's charge has any merit. 3. Respondent has Made No Showing of Improper Purpose or Bad Faith. Respondent spends a considerable portion of its brief discussing what it contends amounts to a "strong odor of bad faith" on the part of the Commission. Resp. Br. at 28. The Commission takes issue with respondent's attack upon the actions of Commission attorneys and investigators, both as a matter of law and as a factual matter. We pointed out in our opening brief that a party seeking to avoid compliance with an administrative subpoena on the grounds of improper purpose "must come forward with facts suggesting that the subpoena is intended solely to serve purposes outside the purview of the jurisdiction of the issuing agency." NLRB v. Frazier, 966 F.2d 812, 819 (3d Cir. 1992).<5> None of respondent's allegations can meet this Frazier standard. Respondent takes the Commission to task for attaching the subpoena to its application without redacting the names of the state troopers. Respondent's attacks upon the Commission do not address the Frazier standard, however, or otherwise explain how failing to redact the names could lead to the conclusion that the Commission issued the subpoena for some improper purpose. In addition, respondent has not explained (and, we submit, cannot explain) how attaching an unredacted document constitutes bad faith, particularly where respondent never requested that the Commission take such a step. Prior to the Commission's filing in the district court, numerous letters were exchanged between respondent's attorney and the Commission. Nowhere does respondent propose submitting information to the Commission in redacted form or propose redacting names in a court filing, even though this Court has noted the Commission's receptiveness to redacting names. Franklin & Marshall College, 775 F.2d at 112 (EEOC "offered to accept the material with names and identifying characteristics deleted"). The facts of this case simply do not warrant a conclusion that the Commission attorney acted in bad faith. Respondent next attacks the EEOC investigator for her (alleged) comments that Taylor's termination was "fishy" and that the investigation into his infractions appeared "too thorough," leading her to suspect that Taylor was treated worse than a white state trooper would have been treated. Resp. Br. at 3-4, 30-31. Such comments by the investigator are hardly evidence of bad faith. To the contrary, the comments go to the heart of Taylor's claims -- that he was disciplined more harshly than white state troopers. We fail to see how an investigator's preliminary assessment that there may be merit to a charging party's allegations (i.e. that he might have been investigated with more scrutiny than white officers) constitutes bad faith. The fact that respondent disagrees with those conclusions does not mean that the subpoena was issued for an improper purpose or that bad faith was otherwise present.<6> Respondent goes on to attack the Commission for the length of time it took the Commission to conduct its investigation. Again, respondent does not explain how a delay in the Commission's investigation could lead to the conclusion that the Commission issued the subpoena for some improper purpose, the showing required in Frazier. Moreover, respondent cites no authority holding that a 2-year delay in conducting an administrative investigation constitutes "bad faith" on the part of the administrative agency. Respondent also does not claim that it has been harmed by any delay in the investigation. We agree that the Commission's backlog of cases and the resulting delay in investigations is not desirable, but it certainly is not evidence of any improper purpose in issuing the subpoena. Finally, the Commission pointed out in its opening brief that respondent did not petition the agency to revoke or modify the subpoena, in accordance with 29 C.F.R. §1601.16(b). See EEOC Br. at 25 n.12. In response, respondent contends that its letters to the District Director constituted petitions to revoke the subpoena, and that the Commission exhibited bad faith in not responding. We find this argument puzzling, for respondent did not make this argument to the district court.<7> In any event, respondent's argument is faulty on both counts. First, the letters in no way resemble petitions for revocation or modification. The letters are not captioned "Petition for Revocation." The letters do not contain fact or argument sections, or a prayer for relief. They do not attach a copy of the subpoena, as the regulations require. See 29 C.F.R. § 1601.16(b)(2). Second, the Commission did respond to the request to withdraw the subpoena. The EEOC District Director wrote a letter indicating the Commission's position that state restrictions on disclosure of information are inconsistent with Title VII, and so must be preempted to the extent they conflict with federal objectives. App. at 15. The Commission's response to the State Police's letter accordingly does not demonstrate an improper purpose in the issuance of the subpoena. In sum, the Commission's actions were designed to achieve one goal: obtaining information it deemed relevant to its investigation of a discrimination and retaliation charge. There is no evidence that the subpoena at issue in this case was issued for anything but a wholly proper purpose. CONCLUSION For the foregoing reasons, this Court should reverse the judgment of the district court and order enforcement of the Commission's administrative subpoena. C. GREGORY STEWART General Counsel PHILIP B. SKLOVER Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel __________________________ JENNIFER S. GOLDSTEIN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, DC 20507 (202) 663-4733 CERTIFICATE OF SERVICE I hereby certify that two copies of the foregoing brief were mailed, first class, postage prepaid, on this 20th day of July, 2000, to the following: Rosemary K. Killian Deputy Attorney General State of Delaware Department of Justice 820 N. French Street, 8th Floor Wilmington, DE 19801 _____________________________ JENNIFER S. GOLDSTEIN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, DC 20507 (202) 663-4733 July 20, 2000 1 In fact, when Congress extended Title VII coverage to state and local employees in 1972, discrimination in police departments was a primary concern. See 118 Cong. Rec. 1817 (1972), reprinted in Legislative History of the Equal Employment Opportunity Act of 1972 at 1118 (1972); see also H.R. Rep. No. 92-238, at 17 (1971), reprinted in 1972 U.S.C.C.A.N. 2137, 2153. 2 As we noted in our opening brief, this particular federal policy involves administrative investigations, and so was not at issue in Hatchett, a case in which a private party was seeking documents during the course of discovery. We also wish to point out a federal court recently declined to apply the Delaware state statute in federal civil rights litigation involving personnel records of State Troopers. See Maull v. Delaware State Police, No. 99-179-JJF (D. Del. May 24, 2000) (attached). 3 Curiously, respondent also attempts to distinguish a number of cases the Commission did not cite in its brief on appeal. Resp. Br. at 12-16. 4 The serious question as to the statute's applicability remains, for respondent too was unable to uncover any authority suggesting it applies in administrative investigations. The only case respondent cites observes that the Commission may bring "civil actions." Resp. Br. at 12 n.5. That the Commission may bring a civil action against a (non-state) employer begs the question, for this case involves an administrative investigation by the Commission, not civil litigation by the Commission. 5 Respondent does not refer to Frazier. It is unclear what legal standard respondent is urging this Court to adopt in this subpoena enforcement case. 6 The Commission takes issue with respondent's citation of a decision addressing "personal vendettas." Resp. Br. at 31. There is no evidence that the investigator harbored a personal vendetta against the State Police, and respondent should not have insinuated as much. 7 Respondent states that the Commission made no argument on the failure to exhaust issue to the district court. Resp. Br. at 5 n.3. In fact, the Commission raised the failure-to-exhaust issue in paragraph 7 of its initial application. R.1 at ¶ 7.