Los Angeles Employment Lawyers Resource: Equal Employment Opportunity Commission v. Delaware State Police

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).