Eeoc v. City of Milwaukee, 99-MISC-5.
| Decision Date | 22 June 1999 |
| Docket Number | No. 99-MISC-5.,99-MISC-5. |
| Parties | EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Applicant, v. CITY OF MILWAUKEE, Respondent. |
| Court | U.S. District Court — Eastern District of Wisconsin |
Dennis R. McBride, Milwaukee, WI, for Applicant.
Leonard A. Tokus, Milwaukee, WI, for Respondent.
DECISION AND ORDER
On March 4, 1999, the Equal Employment Opportunity Commission filed an application seeking enforcement of seven administrative subpoenas issued and served by the EEOC upon the City of Milwaukee.
The following facts are undisputed by the parties, as evidenced by the Application for Enforcement filed by the Commission the Response to Application for Enforcement filed by the City, and the documents attached to the Affidavit of Dennis R. McBride filed in support of the Commission's application.
Under 42 U.S.C. § 2000e-6(e), the EEOC is the federal agency charged with administering and enforcing Title VII of the Civil Rights Act of 1964, including, among other things, the investigation of charges of unlawful employment discrimination.
The Milwaukee Police Department (MPD), Milwaukee Fire Department (MFD), and City of Milwaukee Fire & Police Commission (FPC) are agencies of the City, which is a Wisconsin municipal corporation. Each has more than fifteen employees. During all relevant times, the City has continuously been and is now an employer engaged in an industry affecting commerce within the meaning of § 701(b) of Title VII, 42 U.S.C. § 2000e(b). The actions complained of occurred within the State of Wisconsin and the Eastern District of Wisconsin.
Among several discrimination charges pending with the EEOC against the City, the EEOC's Milwaukee District Office (MDO) is currently investigating the following: (a) Earl T. Hawkins v. City of Milwaukee Fire & Police Commission, EEOC charge number 260-97-0065, in which the charging party alleges that the FPC discriminated against him on the basis of his race; (b) Brotherhood of Firefighters v. City of Milwaukee and Milwaukee Fire & Police Commission, EEOC charge number 260-97-0100, in which the charging party alleges that the MFD discriminated against a class of individuals on the basis of their race; (c) Christopher Miller v. City of Milwaukee Police Department, EEOC charge number 260-98-0626, in which the charging party alleges that the MPD discriminated against him on the basis of his race; and (d) John H. Erkins, Jr. v. City of Milwaukee Police Department, EEOC charge number 260-99-0019, in which the charging party alleges that the MPD discriminated against him on the basis of his race.
On October 15, 1996, Earl T. Hawkins, who is black, filed a discrimination charge alleging that the FPC and the City violated Title VII by not promoting him from police officer to sergeant because of his race. As part of its investigation, the MDO on March 5, 1998 issued subpoena number MK-98-003, directing the City to produce certain information by April 3, 1998, including "a copy of the written exam for Sergeant that was validated per the League of Martin consent order in 1989" and "copies of all written exams, subsequent to the one validated in 1989, used in the testing process for Sergeant" (together the "promotion documents"). (Application ¶ 8; McBride Aff.Ex. E at 2.) The City received the subpoena on March 6, 1998.
On March 30, 1998, the City filed a "Petition to Modify Subpoena," asking the EEOC to enter into a protective order modeled on the confidentiality agreement ordered by a district court in EEOC v. C & P Telephone Co., 813 F.Supp. 874 (D.D.C. 1993). The petition expressed the City's concern that the promotion documents are used for testing candidates for promotion within the MPD, and that without a protective order Mr. Hawkins might be able to obtain the materials pursuant to a Freedom of Information Act, 5 U.S.C. § 552 (FOIA), request, which would cause the tests to lose their value as selection instruments. According to the City, "in the event the test involved is compromised or rendered unusable, [it] would result in considerable expense." (McBride Aff.Ex. F ¶ 3.)
At the same time, the City Attorney's Office and the MDO were engaged in similar discussions concerning EEOC subpoena numbers MK-98-011 and MK-98-012 issued on February 10, 1998, in the Brotherhood of Firefighters matter. In that charge, the Brotherhood alleged that the MFD had discriminated on a class-wide basis against African-American firefighters and applicants with respect to recruitment, hiring, promotion, discipline and other terms and conditions of employment. In response to the EEOC's subpoenas, a deputy city attorney telephoned an EEOC supervisory trial attorney and said that the City would produce information responsive to all of the items in the subpoenas except for documents relating to selection tests, job analysis data, and related documents (the "testing documents") given by the City to candidates for employment as firefighters, which were responsive to several items in the subpoenas.1 The City's attorney asked the EEOC to enter into a protective order with respect to the testing documents so that the Brotherhood would not obtain the materials pursuant to a FOIA request and thus cause the tests to lose their value as selection instruments. As in the Hawkins case, he proposed that the parties use the confidentiality agreement ordered in C & P Telephone.
On March 12, 1998, the City produced information responsive to the two Brotherhood of Firefighters subpoenas except for the testing documents. Then, on March 25, 1998, the City filed a petition to modify subpoena numbers MK-98-011 and MK-98-012. The City essentially repeated the argument from its Hawkins petition for application of C & P Telephone, and, as in the Hawkins case, asked the EEOC to enter into a protective order modeled on the C & P Telephone confidentiality agreement. The City provided its version of a C & P Telephone-type confidentiality agreement, prohibiting the EEOC's dissemination of materials to the charging party, for the EEOC to review. (See McBride Aff. Ex. H at Ex. C.)
The EEOC responded with its own proposed confidentiality agreement, which would clarify its interpretation of FOIA and Title VII disclosure statutes. (See McBride Aff.Ex. I.) On May 4, 1998, after a series of telephone conversations between the EEOC and City, the City sent the EEOC a letter rejecting the EEOC's proposal and indicating its view that the confidentiality provisions of Title VII and the protections of FOIA "may protect the City's documents from the general public, however, the City is concerned about the confidentiality of the materials as it relates to both the general public and the charging party." (Application ¶ 12.) The City argued that the Brotherhood would be entitled to the information under section 83 of the EEOC compliance manual. It said it wanted a confidentiality agreement that went beyond the guarantees of Title VII and FOIA because it believed that there was a loophole in the statutes from the time the EEOC issues a determination until a federal lawsuit is filed under Title VII:
Title VII forbids disclosure of an employment discrimination charge and other information to the public, but the definition of "public" does not include parties to the agency proceedings. The City's concern is that without a confidentiality agreement beyond the scope of the EEOC's authority under Title VII or as a federal agency under FOIA, the City will be left exposed. The EEOC's disclosure rule permits the release of information insofar as [sic] the charging parties or their attorneys who have filed a charge, respondents and their attorneys, so long as the request for information is made in connection with the contemplated litigation.... [T]he Brotherhood would have access to the testing materials as long as they claim to be contemplating litigation. This would leave the City in a position where it is unable to protect itself. The City would no longer be protected by the EEOC guidelines, and at the same time would not yet be involved in a Title VII federal court proceeding and therefore, unable to seek a protective order for the testing materials.
(Id. (citations omitted); McBride Aff.Ex. J at 2 (citations omitted).)
On October 16, 1998, the EEOC's Executive Secretariat denied the City's petitions to modify the above-referenced subpoenas in the Hawkins and Brotherhood of Firefighters cases. Since then, the City nevertheless has failed to comply with the subpoenas. In fact, the EEOC subsequently served two more subpoenas requesting the testing documents, MK-98-125 and MK-98-126 (), and on January 11, 1999 the City faxed the EEOC a petition to modify them, asserting the very same grounds and request for protective order it asserted in the petitions to modify that it filed on March 25 and 30, 1998 — a need for a confidentiality agreement similar to that in C & P Telephone — and which the EEOC's Executive Secretariat denied. According to the EEOC's application, these petitions are still pending before the Executive Secretariat.
On April 3, 1998, Christopher A. Miller, who is black, filed a discrimination charge against the MPD, alleging that the MPD violated Title VII by discriminating against him because of his race when it suspended and terminated him from his job as a police officer. On December 17, 1998, the EEOC mailed subpoena number MK-98-083 to the City, with a due date of December 24, 1998. Among other things, the subpoena asked for a "complete unredacted copy of the Internal Affairs Department's (IAD) file on the investigation of the allegation." (McBride Aff.Ex. T.) The City received the subpoena on December 18. (Id.) The City never responded, nor did it file a petition to revoke or modify the subpoena.
On October 7, 1998, John H. Erkins Jr., who is...
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