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 ___________________________________________________________ BRIEF AND APPENDIX OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPLICANT/APPELLANT ___________________________________________________________ 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 STATEMENT OF JURISDICTION.............................................1 STATEMENT OF THE ISSUE...............................................2 STATEMENT OF THE CASE................................................2 A. Nature of Case and Course of Proceedings ...................... 2 B. Statement of Facts............................................. 2 C. District Court Decision........................................ 5 STATEMENT OF RELATED CASES.......................................... 5 STANDARD OF REVIEW................................................5 SUMMARY OF ARGUMENT..................................................5 ARGUMENT THE DISTRICT COURT ERRED IN DECLINING TO ENFORCE THE COMMISSION'S SUBPOENA, FOR TITLE VII BESTOWS BROAD POWERS UPON THE EEOC TO OBTAIN EVIDENCE RELEVANT TO A CHARGE OF DISCRIMINATION........................................... 8 A. Even if the State Confidentiality Statute Applies in This Case, Federal Law Must Preempt Any State Law that Conflicts with Title VII..................................................................10 B. The Material Requested by the Commission Is Relevant to its Investigation of Ivan Taylor's Discrimination Charge ............................ 18 C. The Commission Acted Properly in Seeking to Obtain Evidence Relevant to Its Investigation of a Discrimination Charge ............................. 21 CONCLUSION..................................................................... .26 CERTIFICATE OF BAR MEMBERSHIP CERTIFICATE OF SERVICE APPENDIXIN 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 ___________________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPLICANT/APPELLANT ___________________________________________________________ STATEMENT OF JURISDICTION The district court had jurisdiction in this matter pursuant to 28 U.S.C. § 1331 and 42 U.S.C. § 2000e-9. This Court has jurisdiction to review the district court's final decision pursuant to 28 U.S.C. § 1291. STATEMENT OF THE ISSUE Whether the district court abused its discretion in failing to enforce a Commission subpoena seeking information relevant to Ivan Taylor's discrimination charge where adherence to a state confidentiality statute would impede the objectives of Congress as laid out in Title VII.<1> STATEMENT OF THE CASE A. Nature of Case and Course of Proceedings Petitioner Equal Employment Opportunity Commission appeals from a final order by the district court denying the Commission's application to show cause why the subpoena should not be enforced. The Commission filed its application on March 22, 1999. R.1. The district court entered its order on October 22, 1999. Appendix ("App.") 3. The Commission filed a timely notice of appeal on December 20, 1999. App. 4. B. Statement of Facts Ivan Taylor filed a charge with the Commission on February 23, 1996, naming his former employer, the Delaware State Police, as respondent. App. 7. Taylor, who is Black, alleged that after he complained about offensive, race-related comments by fellow officers, he was assigned more difficult work than his peers and was written up for infractions in a manner different than White co-workers. Taylor ultimately was terminated in June 1995. Id. The reasons given by the State Police for his termination were official misconduct, conduct unbecoming an officer, and neglect of duty. Id. Taylor alleged in his charge that race and retaliation were the real reasons for his discharge. In support of his allegation, Taylor stated that he was discharged for infractions less serious than those committed by White state troopers.<2> The Commission sent respondent a letter dated May 7, 1998, requesting detailed information about five different internal affairs investigations and hearings respondent conducted. App. 9. The investigations concerned allegations of misconduct by White state troopers. Respondent sent the Commission a copy of the investigation report concerning Taylor, but refused to provide the Commission with the requested documents concerning the White state troopers, citing a Delaware state statute prohibiting disclosure of internal affairs investigatory files in "any civil proceeding." App. 10. Thereafter, on July 15, 1998, the Commission issued a subpoena duces tecum for the documents. App. 12. The subpoena listed ten different items the Commission was seeking for its investigation. App. 17-18. Some of the information pertained to what action the State Police took in response to allegations that listed officers had "stalk[ed] a female" or had "forc[ed] himself on a female." In response, the State Police requested that the Commission withdraw its subpoena because, inter alia, "a response is precluded by Delaware statute."<3> App. 13-14. The Commission sent a letter pointing out that, by virtue of the Supremacy Clause, state law cannot excuse non-compliance with federal law or policy. App. 15. Counsel for Delaware State Police replied by letter dated January 15, 1999, that "we are not comfortable, absent a court order, in breaching our law." App. 19. On March 22, 1999, the Commission filed an application to show cause why a subpoena should not be enforced. R.1. The application to the district court stated that the Commission's investigation into Taylor's charge has been impeded by respondent's failure to cooperate with the requests for information on White state troopers. The application stated that the absence of complete information has prevented the agency from making any determination as to the merits of the charge of discrimination.<4> C. District Court Decision The district court issued an order dated October 22, 1999, denying the Commission's application. The court gave no reason for its refusal to enforce the subpoena. STATEMENT OF RELATED CASES The Commission is unaware of any related cases. STANDARD OF REVIEW The district court's decision to quash the subpoena is reviewed for abuse of discretion. NLRB v. Frazier, 966 F.2d 812, 815 (3d Cir. 1992). A district court abuses its discretion "when 'the district court's decision rests upon a clearly erroneous finding of fact, an errant conclusion of law or an improper application of law to fact.'" Id. (quoting International Union v. Mack Trucks, Inc., 820 F.2d 91, 95 (3d Cir. 1987)).<5>SUMMARY OF ARGUMENT In enacting Title VII of the Civil Rights Act of 1964, Congress explicitly conferred upon the EEOC both the responsibility and the authority to investigate charges of discrimination. An integral part of this investigatory authority is, as the Supreme Court declared, "a broad right of access to relevant information." University of Pennsylvania v. Equal Employment Opportunity Comm'n, 493 U.S. 182, 191 (1990). Without any explanation for its actions, and diverging from the vast weight of authority on Commission subpoenas, the district court in this case declined to enforce the Commission's subpoena. The court's unexplained departure from Title VII and case law interpreting the statute constitutes an abuse of discretion. Respondent in this case objected to the subpoena, raising confidentiality as an issue. In University of Pennsylvania, however, the Supreme Court recognized that Congress did not intend an employer's interest in the confidentiality of its records to preclude Commission access to those records during an investigation. The Court held that 42 U.S.C. § 2000e-8 - which both gives the Commission access to employer records and requires the Commission to keep those records confidential prior to the institution of a proceeding - embodies Congress' decision as to how to strike the balance between the concerns of the employer and the investigating agency. As the Court put it: "Congress has made the choice." 493 U.S. at 194. That respondent's confidentiality-based objections arise out of a state statute does not alter the outcome. A state law that stands as an obstacle to the achievement of a federal law's objectives is preempted by the federal law. In this case, it is unclear whether the statute's prohibition on disclosure "in any civil proceeding" serves to prohibit disclosure here - in a non-public, non-adjudicative investigation by a federal agency. In any event, assuming the state statute would prohibit disclosure of personnel files to an investigating federal agency, it impedes the Commission's ability to conduct the investigation envisioned by Congress, and so is preempted by Title VII. Respondent also objected to complying with the subpoena on the grounds that the requested information was not, in respondent's opinion, relevant to the Commission's investigation. It is difficult to see how the requested information is irrelevant to the investigation under any standard of relevancy. The Commission sought information about the discipline taken against other state troopers for offenses similar, albeit not identical, to Taylor's. This Court has held that data need not be identical in order to provide a useful basis for comparison. Moreover, both the Supreme Court and this Court have held 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. The requested information plainly meets this broad relevancy standard. Finally, respondent claimed that "bad faith" by the Commission excused noncompliance with the subpoena. While an improper purpose on the part of the issuing agency may be considered by a court in a subpoena enforcement action, no improper purpose was present here. Respondent's allegation of improper purpose is only a bare allegation. It is unsupported by any evidence. The Commission issued the subpoena for one purpose only: to acquire information it believed was, and is, necessary for its investigation. ARGUMENT THE DISTRICT COURT ERRED IN DECLINING TO ENFORCE THE COMMISSION'S SUBPOENA, FOR TITLE VII BESTOWS BROAD POWERS UPON THE EEOC TO OBTAIN EVIDENCE RELEVANT TO A CHARGE OF DISCRIMINATION The Commission's authority to investigate a charge of discrimination and its attendant investigatory powers originate in three provisions contained within Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. First, as the Supreme Court declared, Title VII specifically authorizes "the Commission to investigate a charge of discrimination to determine whether there is 'reasonable cause to believe that the charge is true.'" University of Pennsylvania v. Equal Employment Opportunity Comm'n, 493 U.S. 182, 190 (1990) (quoting 42 U.S.C. § 2000e-5(b)); see also 42 U.S.C. § 2000e-5(b) ("Commission . . . shall make an investigation [of a charge]"). Second, to enable the Commission to conduct an effective investigation, Congress conferred upon the Commission "a broad right of access to relevant information." University of Pennsylvania, 493 U.S. at 191. Title VII accordingly provides that the Commission "shall at all reasonable times have access to, for the purposes of examination, and the right to copy any evidence of any person being investigated . . . that relates to unlawful employment practices covered by this [Act] and is relevant to the charge under investigation." 42 U.S.C. § 2000e-8(a). Finally, 42 U.S.C. § 2000e-9 authorizes the Commission to issue subpoenas requiring the production of evidence related to its investigation of a discrimination charge. See also EEOC v. Associated Dry Goods Corp., 449 U.S. 590, 596 (1981) (42 U.S.C. §§ 2000e-8(a) and 2000e-9 "give[] the Commission two formal means of obtaining information when it investigates a charge"). In this case, the Commission received a race discrimination and retaliation charge from Ivan Taylor and, in accordance with 42 U.S.C. § 2000e-5(b), commenced an investigation into the merits of Taylor's charge. In accordance with 42 U.S.C. § 2000e-8(a), the Commission then requested that respondent produce comparative evidence, evidence the Commission deemed necessary to determine the merits of Taylor's disparate discipline allegation. After respondent repeatedly refused to produce the documents for purposes of the Commission's investigation, the Commission issued a subpoena in accordance with 42 U.S.C. § 2000e-9. Notwithstanding this clear statutory authority for the Commission's request for the comparative evidence, the district court inexplicably denied the show cause application. The district court did not issue an opinion or otherwise explain the basis for its denial of the application. We submit there can be no legally-cognizable explanation. If the court implicitly accepted respondent's arguments as the basis for denying the application, the court's order must be reversed, for respondent's arguments conflict with a federal statute and with the precedent of both the Supreme Court and this Court. A. Even if the State Confidentiality Statute Applies in This Case, Federal Law Must Preempt Any State Law that Conflicts with Title VII. Respondent's primary argument before the district court was that a Delaware state statute barred the disclosure of the requested information. Resp. Br. at 6-9. The state statute invoked by respondent reads in relevant part: "Unless otherwise required by this chapter, no law-enforcement agency shall be required to disclose in any civil proceeding . . . any: (1) Personnel file; or (2) Internal affairs investigatory file compiled in connection with a law-enforcement officer under investigation . . . ." Del. Code Ann. tit. 11, § 9200(d). Respondent contended that this state statute "should be enforce[d] to protect the personal privacy" of the comparator employees. Resp. Br. at 9. Basic principles of preemption render respondent's argument -- that the Commission should not have access to information relevant to its investigation of a discrimination charge -- unavailing. See generally U.S. Const. art. VI ("the Laws of the United States . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the . . . Laws of any State to the Contrary notwithstanding"). It is well-settled that a state law is preempted if it would frustrate the scheme established by federal law. See Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 209 (1985); see also Gade v. National Solid Wastes Management Ass'n, 505 U.S. 88, 98 (1992) (state law preempted where "state law 'stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress'") (citation omitted). Respondent's interpretation of the Delaware statute<6> would indeed frustrate the scheme established by Title VII, and so that statutory provision must give way in this case to federal law. Under respondent's interpretation of the Delaware state statute, the Commission may not obtain personnel files or disciplinary files of other law enforcement employees during the course of an investigation, no matter how relevant to the charge under investigation. This interpretation plainly places the state statute at odds with section 709(a) of Title VII (42 U.S.C. § 2000e-8(a)), where Congress explicitly conferred upon the Commission broad investigatory powers. These investigatory powers are not insubstantial. As the Supreme Court has emphasized, this provision of Title VII "can only be read as giving the Commission a right to obtain [relevant] evidence, not a mere license to seek it." University of Pennsylvania, 493 U.S. at 192. Accordingly, because the state statute (as interpreted) prohibits the Commission from obtaining relevant evidence, the statute as applied here is preempted by Title VII. See, e.g., EEOC v. City of Orange, 905 F. Supp. 381, 382 (E.D. Tex. 1995) (respondent must comply with EEOC subpoena because Title VII preempts Texas state law designed to protect confidentiality of evidence at issue); EEOC v. County of San Benito, 818 F. Supp. 289, 291 (N.D. Cal. 1993) (California law prohibiting disclosure of a peace officer's personnel records does not form basis for declining to comply with EEOC subpoenas because "Commission's mandates preempt state restrictions"); EEOC v. County of Hennepin, 623 F. Supp. 29, 32 (D. Minn. 1985) (Title VII preempts Minnesota statute's requirement that personnel information be provided only in response to a court order). The Supreme Court, and numerous other courts, have addressed situations in which confidentiality concerns are raised in the course of a Commission investigation into a charge of discrimination.<7> In University of Pennsylvania, 493 U.S. 182, the Court acknowledged the employer's interest in confidentiality, but held that "Congress . . . address[ed] situations in which an employer may have an interest in the confidentiality of its records." Id. at 192. The Court focused on 42 U.S.C. § 2000e-8, which both gives the Commission access to relevant evidence and also makes it unlawful for the Commission to publicize such evidence prior to the institution of any proceeding. University of Pennsylvania, 493 U.S. at 192; see also 42 U.S.C. § 2000e-8(e) (describing criminal sanctions for unlawful disclosure). The Supreme Court concluded that this provision of Title VII incorporates the balance Congress intended to strike between an employer's confidentiality concerns on the one hand and the Commission's need for relevant information on the other. As the Court emphasized, "Congress apparently considered the issue of confidentiality," id., and provided the protections of 42 U.S.C. § 2000e-8(e) in response. The Supreme Court concluded: "[W]e 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." Id. at 194; compare EEOC v. Franklin & Marshall College, 775 F.2d 110, 115 (3d Cir. 1985) (college's confidentiality concerns cannot preclude disclosure to EEOC because of "clear mandate from Congress" and because preventing disclosure "would allow [academic] institutions to hide evidence of discrimination behind a wall of secrecy"). Other courts addressing similar issues<8> likewise have held that "confidentiality is no excuse for noncompliance [with an EEOC subpoena]." EEOC v. Bay Shipbldg. Corp., 668 F.2d 304, 312 (7th Cir. 1981); see also Franklin & Marshall College, 775 F.2d at 113-15 (requiring disclosure of academic peer review materials notwithstanding college's confidentiality concerns). Like the Supreme Court, the lower courts have looked to 42 U.S.C. § 2000e-8(e) for Congress' response to confidentiality concerns. See, e.g. Bay Shipbldg., 668 F.2d at 312 (confidentiality does not justify noncompliance because Title VII imposes criminal penalties for improper publicizing of information obtained in investigation); EEOC v. Roadway Express, Inc., 750 F.2d 40, 43 (6th Cir. 1984) (42 U.S.C. § 2000e-8(e) "is sufficient protection for Roadway's employees and undercuts Roadway's [confidentiality] argument"); EEOC v. Illinois Dep't of Employment Security, 995 F.2d 106, 107-09 (7th Cir. 1993) (emphasizing that 42 U.S.C. § 2000e-8(e) provides for confidentiality and holding that state confidentiality statute must give way to Title VII); EEOC v. City of Milwaukee, 54 F. Supp.2d 885, 891-96 (E.D. Wis. 1999) (relying on 42 U.S.C. § 2000e-8(e) and University of Pennsylvania to reject City's claimed need for confidentiality); EEOC v. St. Louis Developmental Disabilities Treatment Ctr., 118 F.R.D. 484, 486-87 (E.D. Mo. 1987) (refusing to apply state confidentiality statute "because the state's interest in protecting confidential information is served by the federal statute which regulates the actions of the EEOC"). Respondent has not pointed to any provision in Title VII suggesting that Congress intended to preclude the Commission from gaining access to relevant information of the type requested here, nor could it. The existence of the confidentiality provision in Title VII indicates both that Congress knew sensitive information might be at stake during investigations and that Congress intended that the Commission should have access to such information. Respondent also has not cited any case in which the Commission, during the course of an administrative investigation into the merits of a discrimination charge, was denied all access to relevant information because of confidentiality issues. The only Title VII case respondent cited in support of its argument that it need not comply with the Commission's subpoena was Hatchett v. City of Wilmington, No. 97-302-LON (D. Del. Nov. 26, 1997) (App. 20). See Resp. Br. at 6-7. Hatchett involved a discovery request for 17 police officers' internal affairs files, a request made in the context of civil litigation by a private party, not in the context of an EEOC investigation. In assessing whether to enforce or quash the plaintiff's subpoena, the district court noted at the outset that "a federal court is not bound to enforce state-created privileges [in cases brought under federal question jurisdiction]." Hatchett at ¶ 3 (citing Fed. R. Evid. 501). The court then observed that it could enforce state privileges in the interest of comity, but that it would have to scrutinize both the state's interest in confidentiality of such records and "any countervailing interests . . . to ensure vindication of federal rights." Hatchett at ¶¶ 3-4. The district court ultimately decided the public interest in confidentiality outweighed the needs of the particular litigant. The problem with invoking Hatchett here is twofold. First, the competing interests are different in this administrative investigation case than in Hatchett. Section 709(e) of Title VII (42 U.S.C. § 2000e-8), which was never at issue in Hatchett, affords protection to documents uncovered in EEOC investigations and confers broad authority upon the Commission to obtain relevant information. Such protection and broad authority did not exist in Hatchett, thus requiring a different weighing of the competing interests. Second, unlike the scenario in Hatchett, where Congress had not directly addressed how to resolve the competing interests at stake there, Congress has considered the concerns raised in this case. As the Supreme Court concluded in University of Pennsylvania, 493 U.S. at 194, Congress "made the choice" when it enacted 42 U.S.C. § 2000e-8, and it chose to give the Commission access to any information relevant to its investigation. See also 493 U.S. at 189 (Court is "especially reluctant" to recognize privilege "where it appears that Congress has considered the relevant competing concerns but has not provided the privilege itself . . . . The balancing of conflicting interests of this type is particularly a legislative function."). The case relied upon by respondent therefore is utterly inapposite here.<9> Finally, it is unclear whether the Delaware statute in fact prohibits disclosure of the requested information, as respondent asserts. The statute's language generally prohibits the disclosure of investigatory or personnel files "in any civil proceeding." Del. Code Ann. tit. 11, § 9200(d). The cases cited by respondent applied the statute to prohibit disclosure of certain records during the course of litigation in federal court. Resp. Br. at 6. The cases did not involve administrative investigations. Indeed, respondent cites no case or other authority for the proposition that an EEOC investigation constitutes a "civil proceeding" within the meaning of the Delaware statute, and our research into Delaware law likewise has uncovered no authority on that point. We question the applicability of the Delaware statute to EEOC investigations precisely because EEOC investigations differ in kind from judicial proceedings - EEOC investigations are not public proceedings nor are they adjudicative in nature. See, e.g., Francis-Sobel v. University of Maine, 597 F.2d 15, 18 (1st Cir. 1979). An EEOC determination that there is (or is not) reasonable cause to believe discrimination occurred is binding neither on an employer nor an employee. Such determination, and all materials associated with the investigation, are not a matter of public record. The Commission respectfully submits that the nature of EEOC investigations raises a serious question as to whether the Delaware statute would prohibit the respondent from producing the evidence requested in the course of the Commission's investigation. B. The Material Requested by the Commission Is Relevant to its Investigation of Ivan Taylor's Discrimination Charge. Respondent's second grounds for opposing the Commission's subpoena - that information about White state troopers' disciplinary proceedings was not relevant to Taylor's charge because no trooper had a record of improper conduct with female motorists - also cannot be supported by case law. As a general matter, "[t]he concept of relevancy is construed broadly when a charge is in the investigatory stage." EEOC v. Franklin & Marshall College, 775 F.2d 110, 116 (3d Cir. 1985); see also EEOC v. Shell Oil Co., 466 U.S. 54, 68 (1984) (relevancy limitation on Commission's investigative authority "is not especially constraining"). Indeed, the Supreme Court has noted "Congress' apparent endorsement of an interpretation of the relevance standard which affords the EEOC access 'to virtually any material that might cast light on the allegations against the employer.'" Franklin & Marshall College, 775 F.2d at 116 (quoting Shell Oil, 466 U.S. at 68-69). It is difficult to see how the material requested by the Commission fails to meet this broad relevancy standard. The information sought was meant to allow the Commission to compare the disciplinary treatment taken against Taylor with the treatment taken against White state troopers. While the alleged offenses of the state troopers were not identical to those committed by Taylor, the offenses are similar. Several involve inappropriate conduct with a female, as did Taylor's offense, albeit not with a female motorist. It is well-settled that comparative data, even where not "identical" to the situation under examination, "may provide a useful context for evaluating the practices under investigation." EEOC v. University of Pittsburgh, 643 F.2d 983, 985 (3d Cir. 1981) (enforcing EEOC subpoena); compare Roadway Express, 750 F.2d at 43 ("evidence concerning employment practices other than those specifically charged . . . may be sought by an EEOC administrative subpoena in cases involving a complaint of discriminatory discharge") (internal quotations omitted). While the State Police claims the investigatory files will not ultimately be relevant to Taylor's charge, "an alleged perpetrator of discrimination cannot be allowed to pick and choose the evidence which may be necessary for an agency investigation." Franklin & Marshall College, 775 F.2d at 116. It is the very role of the Commission at the investigatory stage to determine whether the treatment of other officers warrants an inference of discrimination. It is not the role of the employer to make that determination. The Commission may ultimately agree with the employer and conclude that the alleged offenses of the White state troopers are not sufficiently similar to be probative of any discrimination by the State Police. However, resolution of that merits question is not appropriate at this stage of the proceedings. As the Supreme Court has held, it would be "reversible error" for a court in a subpoena enforcement action to assess the likelihood that the claims in the charge could be proved at a trial. Shell Oil, 466 U.S. at 72 n. 26; see also University of Pennsylvania, 493 U.S. at 583 (at subpoena enforcement proceeding, court should not "determine 'whether the charge of discrimination is "well-founded" or "verifiable"'") (quoting Shell Oil); Roadway Express, 750 F.2d at 42 (subpoena enforcement proceeding "is not the proper time to litigate the merits of a claim"). To hold otherwise and require the Commission to establish that the discrimination claim is meritorious in order to obtain evidence for its investigation into the merits of the charge serves "not only to place the cart before the horse, but to substitute a different driver for the one appointed by Congress." Graniteville Co. v. EEOC, 438 F.2d 32, 36 (4th Cir. 1971). C. The Commission Acted Properly in Seeking to Obtain Evidence Relevant to Its Investigation of a Discrimination Charge. Respondent argued to the district court that "bad faith" on the part of the Commission justified the respondent's refusal to comply with the subpoena and formed an independent basis for quashing the subpoena. Specifically, respondent asserted that the inclusion of the White state troopers' names in the Commission's application to enforce the subpoena and the Commission's request for information "it knew or should have known to be irrelevant" were evidence of "bad faith" on the part of the Commission. Resp. Br. at 13-14. It is true, as a matter of law, that improper motives by an agency can be considered by a district court, for a district court may refuse to enforce an EEOC subpoena if "the demand for information . . . has been made for an illegitimate purpose." Shell Oil, 466 U.S. at 72 n.26; University of Pennsylvania, 493 U.S. at 191 (same). As a factual matter, however, respondent's attacks upon the EEOC investigator and the Commission as a whole are utterly baseless. This Court has held that the burden on a party seeking to avoid compliance with a subpoena by alleging improper purpose "'is not a meager one.'" NLRB v. Frazier, 966 F.2d 812, 819 (3d Cir. 1992). "Such a party 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." Id.<10> The Commission's subpoena was issued for one purpose: to acquire evidence deemed necessary for its investigation into Ivan Taylor's discrimination charge. Respondent did not, and cannot, meet the Frazier standard. Respondent complains that the Commission's decision to attach the subpoena (which contained the names of the officers about whom the Commission was seeking information) to its application was "offensive." Resp. Br. at 13. The Commission takes issue with that characterization. The Commission filed its application with the district court only after repeated refusals by respondent to provide requested information. See App. 10; App. 13; App. 19. The Commission attached the subpoena as an exhibit in order to inform the court about the nature of the information it was seeking. Attaching a subpoena to an enforcement application is the Commission's standard practice, even where the subpoena seeks information about named third parties, because of the necessity to explain to the court the need for the information. For example, in EEOC v. City of Milwaukee, a subpoena enforcement case involving the city police department, the court discussed at length the Commission's need for the personnel and investigative files of specific, named individuals who, like the White state troopers here, had not filed charges themselves. 919 F. Supp. 1247, 1251-54 (E.D. Wis. 1996) (enforcing subpoena); see also EEOC v. County of San Benito, 818 F. Supp. 289, 290 (N.D. Cal. 1993) (noting that subpoena sought disciplinary action taken against non-complainant employee); EEOC v. St. Louis Developmental Disabilities Treatment Ctr., 118 F.R.D. 484, 485 (E.D. Mo. 1987) (subpoena required production of documents from personnel files of three named individuals); compare EEOC v. University of Pittsburgh, 643 F.2d 983, 984 n.2 (3d Cir. 1981) (describing subpoena); EEOC v. Bay Shipbldg. Corp., 668 F.2d 304, 313-15(7th Cir. 1981) (attaching subpoena); EEOC v. Delaware State Police, 618 F. Supp. 451, 453 n.3 (D. Del. 1985) (quoting subpoena). It should also be noted that nothing in Title VII prohibits the Commission from revealing charge-related information in a subpoena enforcement action. Disclosure by the Commission is prohibited only "prior to the institution of any proceeding under this subchapter." 42 U.S.C. § 2000e-8(e) (emphasis added). Indeed, courts routinely discuss the contents of charges and other relevant information in decisions in subpoena enforcement actions. See, e.g., University of Pennsylvania, 493 U.S. at 185 (setting forth in detail the allegations of a pending charge, including allegations of sexual harassment by department chairman); Shell Oil, 466 U.S. at 57 (quoting extensively from allegations of pending Commissioner's charge). Other than the filing of the application, the Commission took no steps to "publiciz[e]" the names of the White state troopers. The Commission's actions accordingly are not evidence that the subpoena was "intended solely to serve purposes outside the purview of the jurisdiction of the issuing agency." Frazier, 966 F.2d at 819. Respondent criticizes the Commission for failing to redact the names of the White state troopers. We do not disagree that redaction would have been a reasonable step to take had respondent suggested it to the Commission.<11> Respondent did not make such a suggestion, however, nor did respondent offer to provide the requested information with names redacted or petition the EEOC to modify the subpoena<12> so as to seek the information in redacted form only. The Commission previously has accepted information in such a form. Cf. EEOC v. Franklin & Marshall College, 775 F.2d 110, 112 (3d Cir. 1985) ("The EEOC offered to accept the material with names and identifying characteristics deleted."). In any event, submitting an unedited version of the subpoena, especially when at no time prior to its response did respondent suggest redacting names, is not evidence of improper purpose. Respondent also argues that the very request for information "which [the Commission] knew or should have known to be irrelevant" evidences bad faith by the Commission. Resp. Br. at 13. As discussed above, the Commission has requested information it believes is relevant to the charge of discrimination. It has sought such information in order to perform the investigation it is authorized under Title VII to conduct. Such agency action is specifically contemplated by Title VII and in no way reveals an improper 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 BAR MEMBERSHIP I hereby certify that I am employed by and represent in this case the United States Equal Employment Opportunity Commission, an agency of the federal government. It is my understanding that, as an attorney representing the federal government, I need not become a member of the bar of this Court in order to appear in this matter. CERTIFICATE OF SERVICE I hereby certify that two copies of the foregoing brief and appendix were mailed, first class, postage prepaid, on this 22nd day of May, 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 May 22, 2000 APPENDIX TABLE OF CONTENTS District Court Docket Sheet.....................................................1 District Court Order........................................................3 Notice of Appeal.........................................................4 Charge of Discrimination.....................................................7 Letter of 5/7/98 from EEOC Investigator....................................... 9 Letter of 5/19/98 from Delaware Deputy Attorney General........................ 10 Subpoena (7/15/98).............................................................12 Letter of 7/23/98 from Delaware Deputy Attorney General.......................... 13 Letter of 12/2/98 from EEOC District Director.................................. 15 Subpoena (1/5/99) with Attached Request for Information*............................. 16 Letter of 1/15/99 from Delaware Deputy Attorney General................................ 19 Hatchett v. City of Wilmington, No. 97-302-LON (D. Del. 1997).......................... 20 * Because respondent raised redaction as an issue, the Commission has redacted the names of individuals in the appendix copy of the subpoena. The original copy with names visible can be supplied if the Court so wishes. Finally, respondent complains generally of the Commission's "slothful and lethargic" investigation. Resp. Br. at 13. It is unclear whether respondent means to suggest that the pace of the Commission investigation itself warrants quashing of the subpoena. Given the Commission's backlog of cases, investigations frequently take some time before they are completed. 1 This issue was first raised in the Commission application. R.1 at 10-16. "R.*" refers to the record entry number in the district court docket sheet. 2 The State Police argued that it considered twelve allegations of misconduct by Taylor in deciding to terminate him, and found him guilty of nine. The allegations included failing to appear for trial on six occasions, making inappropriate sexual comments to a female during a traffic stop, and initiating and pursuing a romantic relationship with a 16-year old while his traffic charge against her was pending. Resp. Br. at 1-2. 3 The letter also notes that the subpoena was improperly served on the Deputy Attorney General handling the case. The Commission rescinded the subpoena and issued a second subpoena on January 5, 1999, which it properly served on the custodian of the records. App. 16. 4 The application included the names of the White state troopers. Attached to the application as an exhibit was the subpoena, which detailed some of the allegations made about the state troopers. 5 Because the district court did not explain the grounds for its decision, review of the court's decision is affected. However, as discussed in this brief, the Commission believes that none of the arguments raised by respondent are proper grounds for declining to enforce the Commission's subpoena. 6 As discussed infra at 17-18, it is unclear that the Delaware statute, which prohibits disclosure of personnel or disciplinary files in "any civil proceeding," prohibits disclosure of such files in an EEOC investigation. 7 Respondent's concern is not unique. Confidentiality is often raised by employers, either in terms of concern about employee privacy or about employer records. 8 The issue here concerns the disclosure of documents to a federal agency in a non-public, investigative proceeding. The standards discussed do not apply to disclosure to an opposing party during litigation. Once in litigation, a district court may address a party's confidentiality concerns by issuing a protective order, for example. See Fed. R. Civ. P. 26(c); see also Pearson v. Miller, ___ F.3d ___, 2000 WL 486878 (3d Cir. Apr. 26, 2000); EEOC v. Valley Indus. Servs., 570 F. Supp. 902, 907 (N.D. Cal. 1983) (holding that protective order regarding "trade secrets" is unnecessary during EEOC investigation, but may be appropriate under Rule 26(c) if suit is filed). 9 Respondent also cited a case arising under 42 U.S.C. § 1983. See Resp. Br. at 6 (citing Bailey v. City of Wilmington, 1997 WL 557555 (D. Del. 1997)). The Bailey court did not discuss the competing federal and state interests, but simply held that the information requested was prohibited from disclosure under the language of the statute. 1997 WL 557555, at *2-3. In any event, 42 U.S.C. § 2000e-8, the provision giving Commission the right to relevant information and imposing the concurrent duty not to disclose such information also was not at issue in Bailey. 10 Cases involving the National Labor Relations Board's subpoena power are relevant here, because Title VII indicates that the Commission's subpoena powers are the same as under section 11 of the National Labor Relations Act. See 42 U.S.C. § 2000e-9 (29 U.S.C. § 161 "shall apply" to Commission investigations). 11 Because respondent now raises redaction as an issue, the Commission has redacted the names of individuals in the appendix copy of the subpoena. The original copy with names visible can be supplied if the Court so wishes. 12 Respondent's failure to petition the issuing Director to revoke or modify the subpoena, as required by 29 C.F.R. § 1601.16(b), constitutes a failure to exhaust administrative remedies. Several courts have held that the failure to exhaust the administrative remedy should preclude the respondent from challenging the Commission's subpoena. See EEOC v. Cuzzens of Georgia, Inc., 608 F.2d 1062, 1063-64 (5th Cir. 1979) (per curiam); EEOC v. City of Milwaukee, 54 F. Supp.2d 885, 891 (E.D. Wis. 1999); EEOC v. County of Hennepin, 623 F. Supp. 29, 31-32 (D. Minn. 1985). Compare University of Pennsylvania, 493 U.S. at 186 (noting university had applied to Commission for modification of subpoena); Shell Oil, 466 U.S. at 59 (noting Shell petitioned District Director "[i]n accordance with Commission regulations"); Franklin & Marshall College, 775 F.2d at 113 (noting college "pursued administrative relief by filing [a petition] with the agency"); see also City of Milwaukee, 54 F. Supp.2d at 891 (failure to exhaust inexcusable because "'the City is not akin to a pro se litigant. To the contrary, it is represented by able counsel.'") (citation omitted). This Court has addressed the doctrine of exhaustion of remedies generally in Facchiano v. U.S. Department of Labor, 859 F.2d 1163, 1166-68 (3d Cir. 1988).