Equal Emp't Opportunity Comm'n v. Faps, Inc.

• Decision Date: 10 May 2012
• Docket Number: Civil Action No.: 10-3095 (PGS)
• Parties: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. FAPS, INC., et al., Defendants.
• Court: U.S. District Court — District of New Jersey

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. FAPS, INC., et al., Defendants.

Civil Action No.: 10-3095 (PGS)

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

May 10, 2012

NOT FOR PUBLICATION

MEMORANDUM OPINION AND ORDER

ARPERT, U.S.M.J.

I. INTRODUCTION

This matter comes before the Court on a Motion by Defendant Foreign Auto Preparation Service, Inc. ("Defendant" or "FAPS") to compel the Equal Employment Opportunity Commission ("Plaintiff" or "EEOC") to produce the statistical data responsive to FAPS' discovery requests or, in the alternative, for an in camera review [dkt. entry. no. 54]. EEOC has opposed this Motion. See dkt. entry no. 58.

This matter also comes before the Court on a Motion by EEOC to compel FAPS to provide discovery for the period January 1, 2000 to December 31, 2003 [dkt. entry. no. 55]. FAPS has opposed this Motion. See dkt. entry no. 57.

The Court conducted oral argument with respect to both Motions on January 19, 2012. After oral argument, the Parties agreed to engage in mediation efforts and the Court reserved ruling on the Motions. See dkt. entry no. 63. During a telephone status conference on April 16, 2012, counsel advised the Court that the parties' mediation efforts were unsuccessful and a Scheduling Order directing the conclusion of discovery was entered. See dkt. entry no. 68. For the reasons stated on the record and herein, FAPS' Motion is DENIED and EEOC's Motion is DENIED.

II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On November 1, 2007, EEOC issued a Notice of Charge of Discrimination ("Notice of Charge") against FAPS based upon alleged violations of Title VII of the Civil Rights Act of 1964 including, but not limited to, "unlawfully discriminating against Black and female applicants and employees based on their race and sex" by "refusing and failing to recruit, select, and hire Blacks and women in laborer, operative, craft worker, and service worker positions" from "at least January 1, 2004 to the present". See Cert. of Avis Bishop-Thompson, Esq., dkt. entry no. 57-2 ("Cert. 2 Bishop-Thompson") at Ex. A. Thereafter, EEOC conducted a two-year investigation into the alleged violations, requesting information and documents from FAPS which covered the period January 1, 2002 to the present. Id. at Exhs. B & D. FAPS maintains that it "cooperated with...EEOC's various requests and provided a multitude of documents". Id.; see also id. at Exhs. C & E.

On August 11, 2009, EEOC issued a Determination stating that its investigation had "established a violation of Title VII on the basis of race (black) and sex (female)" and that FAPS had "adopted and perpetuated company-wide recruitment practices that failed to reach qualified blacks and females in the respective labor markets" and instead "relied upon its overwhelmingly white and Hispanic male employees to refer candidates". Id. at Ex. F.

On June 17, 2010, EEOC initiated this action against FAPS "under Title VII of the Civil Rights Act of 1964 ("Title VII"), Title I of the Americans with Disabilities Act of 1990("ADA"), and Title I of the Civil Rights Act of 1991 ("Title I") to correct unlawful employment practices on the basis of race and disability...and [to] provide appropriate relief to a class of potential and actual applicants who were adversely affected by such practices". See EEOC's Comp., dkt. entry no. 1 at 1. Specifically, EEOC alleges that FAPS "has engaged in an ongoing pattern or practice of race discrimination against African Americans in recruitment and hiring...in violation of Title VII" and "violated the ADA by making improper pre-employment disability-related inquiries of applicants". Id. More specifically, "[s]ince at least 2004", EEOC alleges that FAPS has violated "Sections 703(a) and (k) of Title VII, 42 U.S.C. §§ 2000e, 2000e-2(a) and 2000e-2(k)", by "failing or refusing to hire a class of African American job applicants and prospective job applications because of their race" - as set forth more fully in EEOC's Complaint - "resulting in a disparate impact for African Americans". Id. at 3-5; see also id. at ¶¶ 9-10. Of particular note is EEOC's allegation that "[FAPS], before 2004 and continuing thereafter, has had, and continues to have, a statistically significant smaller percentage of African American employees in entry level positions than would be expected given the relevant labor market in the area where [FAPS] is located". Id. at ¶ 9(b). Morever, EEOC maintains that "[FAPS'] almost exclusive reliance on word-of-mouth recruiting", and "falsely [telling] African American applicants that no jobs were available when...in fact...[FAPS] was hiring non blacks", "has resulted in its failure or refusal to hire African Americans, has deterred African Americans from applying for jobs, and has perpetuated and preserved an almost all-white workforce in a geographic area heavily populated by non whites". See EEOC's Br., dkt. entry no. 55-1 at 1. FAPS has filed an Answer in which it denies EEOC's allegations. See FAPS' Ans., dkt. entry no. 31.

A. FAPS' Motion

On March 10, 2011, FAPS served Interrogatories wherein it "requested that...EEOC identify and provide a description of all documents, statistics and demographic data that...EEOC had at the time it filed the Complaint which supports the claim...that FAPS'...policies have a disparate impact on African American and other minority applicants or prospective applicants". See FAPS' Br., dkt entry no. 54-1 at 3; see also Cert. of Bishop-Thompson, dkt. entry no. 54-2 ("Cert. 1 Bishop-Thompson") at Ex. B, Interrogatory No. 21. Contemporaneously, FAPS served a Notice to Produce Documents on EEOC requesting, among other things, the following:

1. To the extent not otherwise produced, any and all written reports, statements or other documents prepared by you related to the alleged discriminatory hiring and recruitment practices alleged in your Complaint.

...

7. All documents, statistics and/or demographic data used by the EEOC to determine and analyze the relevant labor pool from 2004 to the present for African American and other minority applicants and prospective applicants.

...

12. All communications, documents or studies prepared by an expert or consultant, reviewed by or relied on by the EEOC, regardless of whether such communications will be used at trial and regardless of whether such communications, documents or studies were prepared at the direction of the EEOC, addressing the hiring and/or recruitment practices of FAPS.

...

18. To the extent not otherwise produced, all documents describing, relating or referring to the statistical analysis of FAPS' hiring and employment practices.

Id.; see also Cert. 1 Bishop-Thompson at Ex. D.

On April 15, 2011, EEOC objected to FAPS' Interrogatory No. 21 "on grounds and to the extent that it seeks documents and information which are protected from disclosure by theattorney-client privilege, the attorney work-product privilege, the common interest and the government deliberative process privilege and which are otherwise non-discoverable". See Cert. 1 Bishop-Thompson at Ex. C. Similarly, on April 15, 2011, EEOC objected to FAPS' Document Requests as follows:

1. In addition to the general objections, EEOC objects to this document request on the grounds and to the extent that it seeks documents subject to the attorney-client privilege, work-product privilege, the common interest and/or joint prosecution privilege and the government deliberative process privilege. To the extent that this document request seeks non-privileged documents from the administrative investigation, EEOC refers [FAPS] to the previously produced relevant, non-privileged portions of the investigative file bates-stamped EEOC000001-0002426 as well as the supplemental documents provided herein bates-stamped EEOC0002427-00526.

...

7. In addition to the general objections, EEOC objects to this document request on the grounds and to the extent that it seeks documents subject to the attorney-client privilege, the attorney work-product privilege, the common interest and/or joint prosecution privilege and the government deliberative process privilege. To the extent that this document request seeks non-privileged documents from the administrative investigation, EEOC refers [FAPS] to the previously produced relevant, non-privileged portions of the investigative file bates-stamped EEOC000001-0002426.

...

12. In addition to the general objections, EEOC objects to this document request on the grounds and to the extent that it seeks documents subject to the attorney-client privilege, the attorney work-product privilege, the common interest and/or joint prosecution privilege and the government deliberative process privilege and on the further grounds and to the extent that it seeks non-discoverable information pursuant to FED. R. CIV. P. 26(b)(4)(B). Without waiving and subject to said objection EEOC states that it has not yet retained a trial expert but that intends to do so.

...

18. In addition to the general objections, EEOC objects to thisdocument request on the grounds and to the extent that it seeks documents subject to the attorney-client privilege, the attorney work-product privilege, the common interest and/or joint prosecution privilege and the government deliberative process privilege. EEOC objects to this request on the further grounds that it seeks information which is not discoverable under FED. R. CIV. P. 26(b)(4)(B). Without waiving and subject to said objection EEOC states that it has not yet retained a trial expert but that [it] intends to do so.

Id. at Ex. E. EEOC's responses were accompanied by a privilege log identifying the following items as privileged pursuant to the government deliberative process privilege and the attorney work-product privilege: "1) RTI Labor Market Analysis; and (12) Statistical Analysis: Reports, Data and Research". See FAPS' Br., dkt. entry no. 54-1 at 4.

After receiving deficiency letters dated May 10 and May 20, 2011 from FAPS (see Cert. 1...