E.E.O.C. v. Franklin and Marshall College
| Decision Date | 29 November 1985 |
| Docket Number | No. 84-1739,84-1739 |
| Citation | 775 F.2d 110 |
| Parties | 39 Fair Empl.Prac.Cas. 211, 39 Fair Empl.Prac.Cas. 832, 85 A.L.R.Fed. 669, 38 Empl. Prac. Dec. P 35,644, 39 Empl. Prac. Dec. P 35,934, 54 USLW 2239, 3 Fed.R.Serv.3d 282, 28 Ed. Law Rep. 41, 19 Fed. R. Evid. Serv. 16 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Appellee, v. FRANKLIN AND MARSHALL COLLEGE, Appellant. |
| Court | U.S. Court of Appeals — Third Circuit |
Johnny J. Butler, Acting General Counsel, Vella M. Fink, Asst. General Counsel, Colleen M. O'Connor (argued), J. Kenneth L. Morse, Attys., E.E.O.C., Washington, D.C., for appellee.
George C. Werner, Jr. (argued), Barley, Snyder, Cooper & Barber, Lancaster, Pa., for appellant.
Rod J. Pera, Mary Jane Forbes, J. Thomas Menaker, McNees, Wallace & Nurick, Harrisburg, Pa., for amici curiae.
Before ALDISERT, Chief Judge, and STAPLETON and MANSMANN, Circuit Judges.
This court must decide whether the district court erred in requiring Franklin and Marshall College ("College") to comply with a subpoena duces tecum issued by the Equal Employment Opportunity Commission ("EEOC") which compels disclosure of confidential peer review material. The College and the amici curiae urge adoption of a qualified academic peer review privilege which, if properly applied to the facts at issue, would protect, they argue, the confidential material from the agency's subpoena. After careful consideration of all matters raised by brief and in oral arguments, we decline to adopt the proffered qualified academic peer review privilege. Because we find that the material sought by the EEOC is relevant to its investigation, the order compelling compliance with the subpoena will be affirmed.
This subpoena enforcement action arises out of the EEOC's investigation of a charge of discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. Secs. 2000e-2000e-17, filed by Gerard Montbertrand, a former assistant professor who was denied tenure, against the College. Professor Montbertrand was hired on July 1, 1977 as a member of the College's French Department. He was assigned primarily upper level French courses, although the College asserts that, due to the Department's limited size (4 professors), he was expected to be able to teach lower level French language courses. In the Fall of 1980, Professor Montbertrand was reviewed for tenure by the Professional Standards Committee. The committee is composed of the Dean of the College and five faculty-elected members. It performs all tenure reviews at the College. The Chairperson of the French and Italian Departments did inform the committee of evaluations recommending Professor Montbertrand for tenure. The Professional Standards Committee, however, recommended against awarding tenure to Montbertrand. That recommendation was accepted by the Dean and by the President of the College.
After Professor Montbertrand was informed of the denial of his tenure, he requested a written statement of the reasons. In a letter from the President of the College dated January 21, 1981, Montbertrand was informed that the minutes of the Professional Standards Committee stated that "[t]enure was not recommended because deficiencies in the areas of scholarship and general contributions were not sufficiently offset by performance in other areas." Appendix, at 101a.
Professor Montbertrand requested reconsideration of the tenure decision. The Professional Standards Committee reconsidered its decision in light of additional information submitted by Montbertrand and by others. The committee reaffirmed its earlier recommendation to deny tenure. That recommendation was again accepted by the Dean and by the President of the College.
Professor Montbertrand petitioned the College's Grievance Committee for review of the tenure decision, alleging denial of academic freedom and academic due process. After reviewing the allegations and finding no merit in the claims, the Grievance Committee dismissed the petition in May of 1981.
In June of 1981, Professor Montbertrand filed a charge of discrimination with the EEOC alleging discrimination based on his French national origin. In the course of its investigation, the EEOC issued the subpoena duces tecum which is the subject of this action. The subpoena required that the College:
1. For each individual granted or denied tenure during the period November 7, 1977 to the present, provide the following records or documents:
k) Recommendations of Professional Standards Committee in each tenure case, and
l) Actions taken by the President in each tenure case.
2. Produce and make available for inspection all notes, letters, memoranda or other documents generated by each Professional Standards Committee member, as part of his/her involvement in Charging Party's original tenure case and subsequent reconsideration.
3. Produce and make available for inspection the minutes of each Professional Standards Committee meeting in which each tenure case, during the period November 1977 to the present, was discussed.
Appendix, at 32a-33a. The EEOC offered to accept the material with names and identifying characteristics deleted. Id. at 129a.
Prior to the issuance of the subpoena, the College had permitted the EEOC to review, but not copy, the minutes of all Professional Standards Committee meetings regarding the Montbertrand decision. In response to the subpoena, the College agreed to provide the EEOC with data regarding the performance of each tenure candidate considered from 1977 to the date of the subpoena as well as the disposition of each case and the statement of reasons from the Professional Standards Committee (subpoena requests 1(k) & 1(l)). The College also offered to comply with the portions of the subpoena seeking documents not considered confidential peer review material such as COTE scores, grade surveys and enrollment data (subpoena requests 1(b), 1(c) & 1(d)).
At issue before us now is the College's refusal to provide the bulk of the material sought, including tenure recommendation forms prepared by faculty members, annual evaluations (except those prepared by the Dean), letters of reference, evaluations of publications by outside experts, and all notes, letters, memoranda or other documents considered during each tenure decision (subpoena requests 1(a), 1(e), 1(g), 1(h), 1(j), 2 & 3). 1
When the EEOC pressed for full compliance with the subpoena, the College pursued administrative relief by filing with the agency a Petition to Revoke or Modify the Subpoena. After the EEOC denied the petition on August 18, 1983, the College appealed to the EEOC to alter its decision. The EEOC denied that appeal on June 29, 1984. The College informed the EEOC on July 26, 1984 that it would not fully comply with the subpoena.
The EEOC then initiated the instant litigation by filing an Application for Order to Show Cause Why a Subpoena Should Not Be Enforced in the district court. On November 9, 1984, the court filed an Order compelling the College to comply with subpoena requests 1(e), 1(h), 1(j), 2 and 3 but, with the EEOC's concurrence, allowing the College to omit names and identifying data.
The College subsequently filed this appeal and moved the district court for a stay pending appeal. On December 28, 1984, the district court filed an order staying enforcement of its order compelling compliance with the subpoena pending disposition of the appeal. We granted Gettysburg College and Dickinson College leave to file an amici curiae brief. We also permitted Allegheny College, Bucknell University, Chatham College, Haverford College, Lafayette College and Lehigh University to participate as amici curiae and to adopt the amici curiae brief previously filed.
On appeal, the appellant and the amici curiae urge this court to reverse the district court's order compelling the College's compliance with the subpoena duces tecum issued by the appellee. The appellant contends that "the quality of a college, and in a broader sense, academic freedom, which has a constitutional dimension, is inextricably intertwined with a confidential peer review process." Brief of Appellant, at ----. For this reason, the appellant argues, "disclosure of peer review material should be compelled only when facts and circumstances give rise to a sufficient inference that some impermissible consideration played a role in the tenure decision." Id. at 116. The appellant suggests that the court should adopt a qualified academic peer review privilege which would prevent disclosure of confidential peer review material absent a showing of an inference of discrimination. Adoption of such a privilege, argues the appellant, strikes the proper balance between the needs of the EEOC in its investigation and the College's interest in maintaining academic freedom.
The appellant and the amici curiae are not the first to advocate the privilege. Several United States Courts of Appeals have addressed the issue and have reached differing results. The United States Court of Appeals for the Seventh Circuit has recognized a qualified privilege requiring particularized need before ordering disclosure of the names and identities of persons responsible for material generated in the peer review tenure process. EEOC v. University of Notre Dame Du Lac, 715 F.2d 331, 337-38 (7th Cir.1983). The Court of Appeals noted the unusual...
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