MICHAEL A. SHIPP, District Judge.
This matter comes before the Court on Petitioner Equal Employment Opportunity Commission's ("EEOC") Motion for Order to Show Cause Why an Administrative Subpoena (EEOC Subpoena No. NY-A14-011 ("Subpoena")) Should Not be Enforced (ECF No. 25) ("Motion for OSC"). Respondent City of Long Branch ("Respondent") filed opposition (ECF No. 26), and the EEOC replied (ECF No. 27). The Court has carefully considered the parties' submissions and decides the matter without oral argument pursuant to Local Civil Rule 78.1. For the reasons set forth below, and for other good cause shown, the Court GRANTS Petitioner's Motion and finds that the Subpoena should be enforced in full.
On or about February 7, 2013, Lieutenant Lyndon B. Johnson ("Lt. Johnson" or "Charging Party") filed a charge of discrimination ("Charge") against Respondent with the EEOC. (EEOC's Moving Br. for Order to Show Cause ("OTSC") 1-2, ECF No. 1-2.) Lt. Johnson, an African-American Lieutenant in the Long Branch Police Department, alleged that Respondent, as his employer, discriminated against him on the basis of race in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e ("Title VII"). (Id.) Specifically, Lt. Johnson alleged that "he was subjected to different and harsher disciplinary measures than similarly situated white colleagues who committed the same or similar [alleged] infractions." (Id. at 2.)
On August 19, 2013, the EEOC served Respondent with a Notice of Charge. (Id.) In response to the Charge, Respondent asserted that "the disciplinary actions taken against Lt. Johnson are consistent with a race-neutral application of the Police Department's policies and standards and with disciplinary actions taken against Lt. Johnson's comparators." (Id.) "[T]o investigate whether Lt. Johnson was subjected to harsher discipline than his white co-workers for similar infractions, the EEOC requested all disciplinary records for Lt. Johnson and six Caucasian comparators." (Id.) In response to this request, "Respondent notified [the] EEOC that it was gathering the materials but would produce them only if [the] EEOC agreed to certain restrictions in the use and disclosure of the `confidential' materials." (Id.) Notably, these restrictions included a prohibition against providing any material designated "`confidential' . . . in whole or in part, other than in the form of the EEOC's opinions and conclusions . . . to [Lt. Johnson] and/or his counsel, representative, or the like." (Id. at 3.) Following the EEOC's refusal to agree to these restrictions, Respondent advised the EEOC that it would not produce the requested information "absent a Court Order." (Id.)
Thereafter, the EEOC served the Subpoena on Respondent via e-mail correspondence and certified return receipt requested mail. (ECF No. 1-3 at 3, ¶ 15.) Respondent did not file a timely objection to the Subpoena that complied with the applicable regulations. Following Respondent's failure to produce documents in response to the Subpoena, the EEOC filed a motion to enforce the Subpoena in this Court. (ECF No. 1.) The motion was referred to Magistrate Judge Bongiovanni, who found that the EEOC was not entitled to share the requested information about other police officers with Lt. Johnson. (ECF No. 7 at 4.) The EEOC filed an Appeal of the Magistrate Judge's Decision and this Court, applying a deferential standard of review, affirmed Judge Bongiovanni's ruling. (ECF Nos. 8, 11.)
The EEOC appealed the affirmance to the Third Circuit, which vacated and remanded for proceedings consistent with its decision. EEOC v. City of Long Branch, 866 F.3d 93, 101 (3d Cir. 2017). The Third Circuit, however, did not decide either of the two substantive issues on appeal and, instead, addressed at length the preliminary procedural issue of "the District Court [treating] the motion to enforce that the Magistrate Judge had reviewed as a non-dispositive motion instead of a dispositive motion."
Following remand, the EEOC filed a motion to enforce the judgment or mandate from the Third Circuit (ECF No. 18), which was administratively terminated (ECF No. 21). After the Court issued an Order Reopening the Case (ECF No. 24), the EEOC filed the present Motion (ECF No. 25). The Court has elected to review the EEOC's Motion as if it was brought before the Court in the first instance.
In its decision, the Third Circuit framed the two issues that the EEOC raised on appeal as the: (1) "exhaustion issue" or "whether Long Branch is precluded from contesting the motion to enforce because it failed to exhaust its administrative remedies;" and (2) "disclosure issue" or "whether the EEOC may disclose information from the non-charging parties' employment and personnel records to Lt. Johnson." Long Branch, 866 F.3d at 98. Although the Third Circuit did not decide these substantive issues, it provided guidance in a footnote. Long Branch, 866 F.3d at 101 n.6. The Court will address each of the substantive issues in light of the Third Circuit's guidance.
The exhaustion of federal administrative remedies doctrine encourages parties to utilize all resources of an Article I federal administrative agency before seeking judicial relief from an Article III federal court. See Robinson v. Dalton, 107 F.3d 1018, 1020 (3d Cir. 1997) ("It is a basic tenet of administrative law that a plaintiff must exhaust all required administrative remedies before bringing a claim for judicial relief."); Meyers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51 (1938) ("[T]he long-settled rule of judicial administration [is] that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted."). The exhaustion doctrine provides a federal administrative agency the opportunity to review and modify matters within its area of expertise. See Parisi v. Davidson, 405 U.S. 34, 37 (1972) ("The basic purpose of the exhaustion doctrine is to allow an administrative agency to perform functions within its special competence.").
The exhaustion doctrine applies to EEOC subpoena enforcement actions by requiring the party served with an EEOC subpoena to file a petition to revoke or modify the subpoena with the EEOC (under 29 C.F.R. § 1601.16(b)(1)-(2)) before filing an action in federal court. See EEOC v. Roadway Express, Inc., 569 F.Supp. 1526, 1528-29 (N.D. Ind. 1983) (after finding that [the defendant] had waived its right to object to an EEOC subpoena by failing to file a petition to revoke, the Court stated that "[i]t has long been established that a party will normally be denied judicial relief for injury until administrative remedies have been exhausted."). Pursuant to 29 C.F.R. § 1601.16(b)(1)-(2):
The facts of the present matter reflect that the EEOC served its Subpoena on Respondent on July 23, 2014 via e-mail correspondence and certified mail, with return receipt requested.
In addition, Respondent did not adequately justify its noncompliance with the deadline. Respondent relies on EEOC v. Lutheran Social Services, 186 F.3d 959 (D.C. Cir. 1999), EEOC v. WinCo Foods, Inc., No. 05-0486, 2006 U.S. Dist. LEXIS 64521 (E.D. Ca. Sept. 8, 2006); and EEOC v. Bashas', Inc., No. 09-0209, 2009 WL 3241763 (D. Ariz. Sept. 30, 2009), to argue that because the EEOC did not expressly notify it about the relevant regulation and did not provide the five-business-day response deadline on the face of the Subpoena, its failure to timely comply with the Subpoena should be excused. (Resp't's Opp'n Br. 5-14, ECF No. 26.)
The Court finds Respondent's arguments unavailing and, instead, agrees with the EEOC's position that:
(Pet'r's Reply Br. 4-5, ECF No. 27.) Here, Respondent did not demonstrate that Petitioner was required to notify it of the five-day deadline on the face of the Subpoena. In addition, Respondent was represented by counsel who should have been capable of determining the five-business-day deadline to respond to the EEOC's Subpoena. Indeed, Respondent filed a document entitled "Notice of Motion to Quash Subpoena," implying that Respondent's counsel knew, at the very least, that some type of response to the EEOC's Subpoena was necessary. Thus, Respondent's reliance on Lutheran as well as Winco Foods and Bashas' is misinformed.
Here, the Court finds that Respondent failed to file a petition to modify or revoke the Subpoena within five business days of being served with the Subpoena under 29 C.F.R. § 1601.16(b)(1)-(2) and did not provide adequate justification for its late filing. The Court, consequently, finds that Respondent failed to exhaust its administrative remedies. Nonetheless, even if the Court found reason to excuse Respondent's failure to exhaust, Respondent's attempt to avoid disclosure would fail, as discussed below.
The Third Circuit instructed that if the Court reached the disclosure issue upon remand, it should reconsider its reliance on Associated Dry Goods and should utilize the framework for confidentiality orders articulated in EEOC v. Kronos, Inc. in considering any limitations on disclosure. Long Branch, 866 F.3d at 101 n.6. Specifically, the Third Circuit stated that:
Long Branch, 866 F.3d at 101 n.6.
In light of the Third Circuit's guidance, the Court finds that its previous reliance on Associated Dry Goods was misplaced. Long Branch, 866 F.3d at 101 n.6. The Court, therefore, concludes that the EEOC has the right to disclose evidence obtained in the Charging Party's case with the Charging Party pursuant to the confines of Associated Dry Goods. See Associated Dry Goods, 449 U.S. 590 (1981) ("there is no reason why the charging party should know the content of any other employee's charge [if the other employees are themselves charging parties], and he [as the charging party] must be considered a member of the public with respect to charges filed by other people. With respect to all files other than his own, he is a stranger.") (emphasis added).
The Court recognizes the public policy considerations that justify the ability of the EEOC to share information from other employee files with the Charging Party. Specifically,
Associated Dry Goods, 449 U.S. at 600-01.
Next, the Court finds that the EEOC v. Kronos framework and the Pansy factors do not compel entry of Respondent's Confidentiality Order. In EEOC v. Kronos, the Third Circuit stated that "[t]he party seeking confidentiality establishes good cause by showing that disclosure will work a clearly defined and serious injury to the party seeking closure. The injury must be shown with specificity. Broad allegations of harm, unsubstantiated by specific examples or articulated reasoning, do not support a good cause showing." Kronos, 620 F.3d at 302 (citations and internal quotations omitted). The Third Circuit then outlined the "good cause balancing test" factors from Pansy v. Borough of Stroudsburg, 23 F.3d 772 (3d Cir. 1994):
Kronos, 620 F.3d at 302.
The Court finds that Respondent has failed to demonstrate that the disclosure of comparator officers' files would work a clearly defined and serious injury and that Respondent has not shown potential injury with any specificity. Pansy, 23 F.3d at 786 (quoting Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1071 (3d Cir. 1984)). Respondent asserts that it is trying to protect the rights and privacy of the six non-party police officers and argues
(Resp't's Opp'n Br. 19.) This complained-of injury from Respondent — especially the vague language with respect to the "rights and privacy of the six (6) non-party police officers" — is a clear example of "[b]road allegations of harm, unsubstantiated by specific examples or articulated reasoning" that "do not support a good cause showing." Pansy, 23 F.3d at 786 (quoting Cipollone v. Liggett Grp., Inc., 785 F.2d 1108, 1121 (3d Cir. 1986)).
Upon balancing the Pansy factors, the Court finds that Respondent has not demonstrated good cause for entry of a confidentiality order because:
(1) The disclosure does not violate any privacy interests because various statutory restrictions are in place that protect the confidentiality of information obtained during EEOC investigations (e.g., the comparator officer files) and prevent such information from being disclosed to the public;
(2) The information (e.g., comparator officer files) is being sought for the legitimate purpose of an EEOC investigation;
(3) The disclosure of information — which only occurs to the EEOC and the Charging Party but not to the public — will not appear to cause any party embarrassment;
(4) Confidentiality is being sought over information that relates to the public health and safety goals of EEOC investigations designed to eliminate discrimination;
(5) The sharing of information with the Charging Party will promote fairness and efficiency in the EEOC investigation;
(6) Although the party benefitting from the order of confidentiality is a police department and public entity, the party seeking the information is a public entity as well, so this factor is neutral; and
(7) The case involves issues that are important to the public because it concerns the results of an EEOC investigation.
The Court also agrees with the arguments made and cases cited by the EEOC in its opening brief, where it stated that the good cause "standard is simply not met in this case" and that:
(Pet'r's Moving Br. 13, ECF No. 25.) The EEOC also raises compelling policy rationales for not entering Respondent's confidentiality order here because:
(Pet'r's Moving Br. 13-14.)
Finally, the Court notes that statutory restrictions address Respondent's privacy concerns. As Petitioner explained:
(Pet'r's Moving Br. 7-8.); see also EEOC v. Bay Shipbuilding Corp., 668 F.2d 304, 312 (7th Cir. 1981) ("[C]onfidentiality 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."); EEOC v. Morgan Stanley & Co., 132 F.Supp.2d 146, 158 (S.D.N.Y. 2000) ("[T]here is no justification on this record for the entry of a protective order with reference to the subpoenas before this Court, and no reason to order the EEOC to depart from its normal practices, held in Associated Dry Goods to be entirely legal and consistent with the aims of the statute in ordinary cases."); EEOC v. Kronos Inc., 620 F.3d 287, 298 (3d Cir. 2010) ("The EEOC is entitled to information that may provide a useful context for evaluating employment practices under investigation, in particular when such information constitutes comparison data."); Morgan Stanley, 132 F. Supp. 2d at 156 ("Congress has specifically foreseen and approved of the EEOC's practice of sharing information with charging parties because that practice is consistent with and promotes the statutory purpose. . . . [B]ecause disclosure to the charging party would ordinarily further the enforcement of [Title VII], disclosure should be the norm and a [confidentiality] order will be appropriate only in unusual circumstances.").
Here, Respondent did not satisfy the standards set forth in Kronos and Pansy and, accordingly, did not demonstrate its entitlement to a confidentiality order.
For the reasons set forth above, the Court grants Petitioner's Motion and finds that the subpoena should be enforced in full. The Court will enter an order consistent with this Memorandum Opinion.
