E.E.O.C. v. University of Notre Dame Du Lac
| Decision Date | 24 August 1983 |
| Docket Number | No. 82-2358,82-2358 |
| Citation | 715 F.2d 331 |
| Parties | 32 Fair Empl.Prac.Cas. (BNA) 1057, 32 Empl. Prac. Dec. P 33,787, 13 Ed. Law Rep. 231, 13 Fed. R. Evid. Serv. 1336 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee, v. UNIVERSITY OF NOTRE DAME DU LAC, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Lawrence C. DiNardo, Seyfarth, Shaw, Fairweather & Geraldson, Chicago, Ill., for defendant-appellant.
Jeffrey C. Bannon, E.E.O.C., Chicago, Ill., for plaintiff-appellee.
Before WOOD, ESCHBACH and COFFEY, Circuit Judges.
The University of Notre Dame Du Lac appeals from an order granting enforcement of an administrative subpoena duces tecum issued by the Equal Employment Opportunity Commission ("EEOC") requiring the University to produce the personnel files of certain faculty members in the University's Department of Economics. We reverse and remand.
On May 21, 1980, Oscar T. Brookins filed a charge with the EEOC alleging that the University had unlawfully discriminated against him on the basis of race in denying him a tenured position in the University's Economics Department. In his EEOC charge, Brookins alleged:
(1) no black professor has ever received tenure from the Economics Department.
(2) the University refused to state to me in writing why I was being denied tenure.
(3) my publications are of greater or equal quality and of greater or equal number than most tenured professors within the Department of Economics.
(4) the Chairman of the Department of Economics has made the statement to my wife that he doesn't believe that races should be mixed. My wife is white.
(5) Chairman and Dean have refused to identify external and internal reviewers of my performance. Further, they have refused to allow me to read these reviewer's comments.
(6) those persons and committees reviewing me for tenure have used student's teacher-course evaluations as a measure of my competency to teach.
(7) the Department of Economics has refused to provide copies of its member's vitaes to me. According to the University's rules, I have a right to see the vitaes."
In investigating Brookins' charge of unlawful racial discrimination, the EEOC sent the University an eight-part questionnaire demanding inter alia the following: (1) "Describe in detail your tenure practices in the University of Notre Dame"; (2) "[I]dentification by name and race, of persons responsible for reviewing the qualifications of candidates for tenured positions"; (3) "Identify by name, race, and job title the individual(s) making up the tenure committees for the economics department from January 1, 1980 to June 1, 1980"; (4) Construct a chart detailing the name, race and employment history of each member of the University Economics Department; (5) "Furnish copies of the personnel records of the Charging Party [Brookins]."
The University complied with each of the requests for information and documents with the exception of the EEOC's request that the University furnish copies of the personnel records of the charging party, Brookins. In a February 6, 1981 letter to the EEOC, the University's assistant general counsel offered to allow an EEOC investigator to visit the University to personally review Brookins' personnel files, but refused to permit the EEOC to make copies of the file on the grounds that the file was "so voluminous, and because so much of it is of such a confidential nature ...."
On February 19, 1981, the EEOC demanded from the University not only the personnel files of Brookins but also the personnel files of all teaching personnel in the Economics Department. In response to the EEOC's latest demand for the personnel files of the Economics Department, the University offered to produce the files, subject to the EEOC signing an agreement requiring that they maintain the confidentiality of the information contained in the personnel files. The EEOC refused to sign the nondisclosure agreement, and then the EEOC issued an administrative subpoena duces tecum requiring the University to provide "copies of the complete personnel records of [the] charging party Oscar T. Brookins, and all other teaching personnel in the Economics Department for the period January 1, 1980 to the present." After being served with this subpoena duces tecum, the University filed with the EEOC a petition to revoke or modify the subpoena. The district director of the Indianapolis district office of the EEOC denied the University's petition to revoke or modify the subpoena and ordered the University to produce the documents. The University appealed to the full commission in Washington, which denied the University's appeal but modified the language of the subpoena to require production of the following evidence:
"Copies of the complete personnel records of charging party, Oscar T. Brookins, and all other teaching personnel in the Economics Department for the period January 1, 1980 to the present are requested regardless of whether such teaching personnel were fired by respondent before or after January 1, 1980, or left respondent's employ after January 1, 1980."
The University did not comply with the subpoena and, on March 16, 1982, the EEOC filed an application in district court for an order to show cause why the subpoena should not be enforced.
The University objected to the EEOC subpoena on three grounds. First, the University argued that the personnel files in question contained peer review evaluations which were made with the assurance and expectation that the evaluations would remain confidential, and therefore the peer review evaluations were protected from disclosure by a qualified academic privilege. 1 The University contended that pursuant to the qualified academic privilege, it should be permitted to delete the names and any and all identifying information of the academicians participating in the peer review process before giving the files to the EEOC. Second, the University objected to the breadth of the EEOC subpoena which demanded production of the personnel files of all faculty members having taught in the Economics Department since January 1, 1980. The University maintained that the files of only those faculty members eligible for tenure during the same period Brookins was eligible for tenure were relevant to Brookins' charge of unlawful discrimination. The University also argued that the EEOC should be required to execute a nondisclosure agreement as a condition precedent to the University's release of any of the faculty personnel files in question.
The district court, 551 F.Supp. 737, rejected the University's contention that it should be allowed to delete the names and identities of academicians participating in the tenure peer review process, finding that the EEOC's need for the information was "substantial," without adequately explaining its reasoning, and that the University's argument against disclosure of the identities was "premature." The court reasoned that under 42 U.S.C. § 2000e-8(e), the EEOC was prohibited from disclosing any information in the files to anyone, including the charging party, Brookins, until such time as a lawsuit was actually filed, and therefore, "any damage that might result from disclosure would not occur at this stage of the EEOC investigation but rather at its conclusion." The district court agreed with the University's argument that the subpoena was overly broad, and limited the subpoena's scope to the personnel files of those Economics Department faculty members eligible for tenure beginning in August 1974 (when the charging party Brookins began working in the Notre Dame Economics Department) until the date of the court's order (August 5, 1982). By limiting the scope of the subpoena the EEOC was precluded from obtaining the files of those Economics Department faculty members granted tenure prior to Brookins eligibility for tenure.
Finally, the district court rejected the University's contention that the faculty files, in whatever form they were produced, should be subject to a protective order to prevent disclosure of the information in the files by the EEOC. The University's request would require the EEOC to obtain a nondisclosure agreement from the charging party prior to releasing it to them. The court held that the University could not condition its release of the requested information upon the EEOC's signing of a nondisclosure agreement because to do so would be contrary to "the plain language and spirit of Title VII and EEOC v. Associated Dry Goods Corp., [449 U.S. 590, 101 S.Ct. 817, 66 L.Ed.2d 762 (1981) ]."
The University appeals from the district court's finding that (1) the University could not, prior to producing the files, delete from the files the names and identifying features of academicians participating in the tenure peer review process; and (2) the University could not condition the release of the files on the execution of a nondisclosure agreement between the EEOC and the University. On this appeal, neither party challenges the district court's decision to limit the scope of the EEOC subpoena to only those faculty members eligible for tenure between August of 1974 and August of 1982.
Rule 501 of the Federal Rules of Evidence authorizes federal courts to recognize new evidentiary privileges in certain circumstances. Specifically, Rule 501 provides:
"Except as otherwise required by the Constitution of the United States or provided by Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority, the privilege of a witness, person, government, state, or...
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