EEOC v. University of Notre Dame du Lac, S 82-104.

• Decision Date: 05 August 1982
• Docket Number: No. S 82-104.,S 82-104.
• Citation: 551 F. Supp. 737
• Parties: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. UNIVERSITY OF NOTRE DAME DU LAC, Defendant.
• Court: U.S. District Court — Northern District of Indiana

551 F. Supp. 737

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. UNIVERSITY OF NOTRE DAME DU LAC, Defendant.

No. S 82-104.

United States District Court, N.D. Indiana, South Bend Division.

August 5, 1982.

Bernard Huff, Michael J. Connolly, James N. Finney, Washington, D.C., Laurie A. Young, Richard R. Trujillo, E.E.O.C., Indianapolis, Ind., for plaintiff.

Philip J. Faccenda, University of Notre Dame, Notre Dame, Ind., Gerald D. Skoning, Lawrence C. DiNardo, Robert C. Long, Chicago, Ill., for defendant.

MEMORANDUM AND ORDER

SHARP, Chief Judge.

This case is before the Court on the application of the Equal Employment Opportunity Commission (EEOC) for an order to show cause why a subpoena issued to respondent, University of Notre Dame Du Lac (University) should not be enforced. Oral argument was heard before this Court on May 6, 1982 and both parties have submitted extensive briefs on the issues.

On May 21, 1980, Oscar T. Brookins filed a charge with the EEOC alleging that the University had committed and continues to commit unlawful employment discrimination at its principal facility in Notre Dame, Indiana. Specifically, Mr. Brookins alleged in EEOC Charge No. XXXXXXXXX:

I began employment with the above stated respondent in August, 1974, as Assistant Professor of Economics. I received a one year terminal contract on May 13, 1980 which denied me tenure as a permanent professor.

I feel that I have been discriminated against because of my face (sic — race), Black, in that:

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 the 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.

The EEOC served notice and a copy of the charge on the respondent University and commenced its investigation. On January 7, 1981, the EEOC sent the University a questionnaire which contained eight requests for information and documents with numerous subparts. The University complied with each of the requests for information and documents on February 6, 1981, except for the EEOC's request that the University furnish copies of the personnel records of the charging party, Oscar T. Brookins. With respect to those personnel records, the University offered to allow an EEOC investigator to visit the University to personally review the charging party's personnel files but refused to permit the EEOC to make copies of the file on the grounds that its contents were confidential.

On February 19, 1981 the EEOC by letter to the University requested the personnel files of the charging party and other teaching personnel in the Economics Department. On March 3, 1981 the University responded by offering to produce the files subject to the execution of a nondisclosure agreement which would insure that the files would remain confidential. The EEOC in return correspondence declined to sign the nondisclosure statement maintaining that Title VII of the Civil Rights Act of 1964 prohibits public disclosure and that the University should therefore comply with the request. After further correspondence the EEOC issued subpoena number IN-81-005 to respondent University on July 1, 1981 requesting the production of certain evidence and directing the University to produce the evidence on July 17, 1981 at the Indianapolis District Office of the EEOC.

On July 21, 1981 the University filed a Petition to Revoke or Modify Subpoena with the General Counsel of the EEOC and forwarded a copy to the District Director. In a determination issued on August 31, 1981, the District Director of the Indianapolis District Office of the EEOC denied the respondent's petition to revoke or modify the subpoena and ordered the University to produce the documents. On August 12, 1981, the University appealed to the Commission from the District Director's determination denying its petition to revoke or modify the subpoena. On February 18, 1982 the Commission issued its determination denying the University's appeal and modifying 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 as ordered. On March 16, 1982 the EEOC filed the application for order to show cause why the subpoena should not be enforced that is presently before the Court.

The University objects to the EEOC's subpoena on three grounds. First, the University maintains that the personnel files in question contain peer review evaluations which are made with the assurance and expectation that the evaluations would remain confidential. The University further maintains that disclosure of the evaluations would impair the rigor and integrity of the peer review process and thus impinge on society's interest in academic freedom and excellence in higher education. The University therefore urges this Court to recognize a qualified academic privilege under Rule 501 of the Federal Rules of Evidence as well as under the Court's discretionary authority to regulate the conduct of discovery under Rule 26(c) of the Federal Rules of Civil Procedure. Second, the University objects to the breadth of the EEOC's subpoena. The EEOC subpoena requests the production of personnel files of all faculty members who have taught in the Department of Economics since January 1, 1980. The University maintains that most of the files requested are those of faculty members who are not similarly situated with the charging party and therefore proposes to produce only those files of faculty members in the Department of Economics who have been considered for tenure since January 1, 1976.

The University's third objection to the EEOC's subpoena is the EEOC's refusal to execute a nondisclosure agreement as a condition to the University's release of the files in question. The University maintains that it would be without a judicial forum in which to obtain a protective order to insure the confidentiality of the files once they are released to the charging party.

I.

The University's first objection to the EEOC subpoena is that some of the information contained in the personnel files of faculty members covered by the subpoena is confidential and should be protected by a qualified academic privilege pursuant to Federal Rule of Evidence 501 or as a matter of the Court's discretion to limit and control discovery pursuant to Federal Rule of Civil Procedure 26. The University specifically seeks to protect the names and identifying information of the individuals who submitted evaluation of individuals being considered for tenure by deleting that information from the file. The EEOC maintains that it is entitled to the complete files and that the Court should summarily enforce the subpoena in its entirety pursuant to EEOC v. Bay Shipbuilding Corp., 668 F.2d 304 (7th Cir.1981).

Rule 1101 of the Federal Rules of Evidence contains the guidelines for determining the applicability of the Federal Rules of Evidence to the matter now before the Court. Subsection (b) of Rule 1101 provides that "these rules apply generally to civil actions and proceedings, ..." Subsection (d) contains specific exceptions to the application of the rules and subsection (e) provides for instances when the Federal Rules of Evidence are applicable only in part. Thus, the general language of subsection (b), applying the rules to all "civil actions and proceedings", governs all civil proceedings in federal district court unless they are specifically mentioned in a subsequent section of Rule 1101.

An application for the enforcement of an administrative subpoena would be encompassed by the general language "civil action and proceedings" and is not included in the exceptions to the application of the rules nor in the section applying the rules in part. There is no case law authority on this issue nor does the legislative history of the rules indicate that administrative subpoena enforcement proceedings should be excluded from the application of the Federal Rules of Evidence. Therefore, this Court concludes that the rules apply to this proceeding for enforcement of the EEOC subpoena.

Subsection (c) of Rule 1101 of the Federal Rules of Evidence provides that the rule with respect to privileges applies at all stages of all actions, cases and proceedings. The law of privilege in this action is governed by Rule 501 of the Federal Rules of Evidence which provides as follows:

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 political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience.

In adopting Rule 501 Congress rejected a proposal to fix the law of privilege by...