EQUAL EMPLOYMENT, ETC. v. University of Pittsburgh, Misc. No. 7653.

• Court: United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
• Writing for the Court: SNYDER
• Citation: 487 F. Supp. 1071
• Parties: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Applicant, v. UNIVERSITY OF PITTSBURGH, Respondent.
• Docket Number: Misc. No. 7653.
• Decision Date: 26 March 1980

487 F. Supp. 1071

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Applicant,
v.
UNIVERSITY OF PITTSBURGH, Respondent.

Misc. No. 7653.

United States District Court, W. D. Pennsylvania.

March 26, 1980.

487 F. Supp. 1072

Lanier E. Williams, EEOC, Philadelphia Dist., Philadelphia, Pa., for applicant.

James J. Restivo, Jr., Reed, Smith, Shaw & McClay, Pittsburgh, Pa., for respondent.

OPINION

SNYDER, District Judge.

Before the Court is an application of the Equal Employment Opportunity Commission (EEOC) for an order to require the University of Pittsburgh (University) to comply with the subpoena duces tecum served upon it by the EEOC during its investigation of a charge of unlawful discrimination against female faculty employees with respect to wages and conditions of employment.

I. Prior Procedures

The charge filed July 6, 1977 alleged:

"The University of Pittsburgh has discriminated, and is still discriminating, against women faculty employees by paying them lower monthly salaries than the ones paid to male faculty employees. Thus, the discrimination is based upon sex. Consequently, this action of the University of Pittsburgh amounts to an unlawful employment practice, and as such, is prohibited by the provisions of Title VII of the Civil Rights Act of 1964 as amended. Inasmuch as several fringe benefits are based upon or linked with salary, by paying women faculty employees lower monthly salaries than the ones paid to male faculty employees, the University of Pittsburgh is also guilty of committing an unlawful employment practice over other conditions of employment. This, too, constitutes discrimination based upon sex and is therefore prohibited by provisions of Title VII of the U.S. Civil Rights Act of 1964 as amended."

This charge was prepared and signed by Margaret F. Carroll, Acting Executive Director of the American Nurses' Association (ANA). Attached to the charge was an EEOC Form 151, Third Party Certification of Charge, which gave the names, addresses, and telephone numbers of some ANA members aggrieved by the allegedly discriminatory conduct.

On August 12, 1977, the Pittsburgh District Office of the EEOC, pursuant to Section 706(c) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-5(c), referred the charge to the Pennsylvania Human Relations Commission. ANA

487 F. Supp. 1073

then requested the Commission to terminate processing the charge, and the Commission agreed to do so on August 12th. The EEOC thereupon re-assumed jurisdiction over the charge, and the University was notified on August 17, 1977. EEOC Compliance Officer, Joel Pretz, attempted to secure an early conciliation of the charge but was unable to do so. As a part of the investigation, a letter was sent to the University on June 13, 1978, requesting information; on July 12, 1978, counsel for the University informed the EEOC that it would not voluntarily produce the information and that the EEOC would have to issue a subpoena

On August 1, 1978, a subpoena was issued, signed by the EEOC's District Director, requiring the University to produce the following:

"1. Produce a list of all assistant instructors, instructors, assistant professors, associate professors and professors in the Schools of Nursing, Pharmacy, Health Related Professions, and Social Work. For each, indicate sex, date of hire, date of termination, (if applicable), academic degree held, whether tenured or non-tenured, whether part-time or full-time, and position(s) held during the period June 1975 to present. Additionally, indicate each aforesaid employee's initial salary and present salary and length of term of annual contract of each; i. e., ten months, twelve months, etc.

2. Produce the written/printed functional job descriptions and all written/printed materials describing all duties and job/position requirements of all assistant instructors, instructors, assistant professors, associate professors, and professors in each of the aforesaid schools.

3. Produce the written/printed qualifications and requirements necessary to perform the duties of each position, occupied by assistant instructors, instructors, assistant professors, associate professors, and professors in each of the aforesaid schools.

If the records do not exist in the form requested in Item 1 above, production of the information therein requested as most substantively provides the Commission with that information will be accepted as compliance."

The University did not produce the information, but filed a petition with the EEOC seeking revocation of the subpoena on August 3, 1978. On December 22, 1978, the EEOC entered its determination that the subpoena would not be revoked and established January 15, 1979, as the date of production of documents. The University advised the EEOC that it would not comply with the determination.

II. This Action

On November 19, 1979, the EEOC filed the present action with this Court seeking enforcement of the subpoena duces tecum pursuant to Section 710 of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-9. Attached to the application was the affidavit of Eugene V. Nelson, EEOC District Director, relating the above facts based on his personal knowledge and review of the EEOC's investigative file, entitled "American Nurses Association v. University of Pittsburgh, Charge No. 034-771609". This Court, on the same day as the application was received, entered an order directing the University to appear on December 12, 1979, to show cause why the subpoena should not be enforced. At the University's request, this hearing was continued to provide the University an opportunity to file an answer and a reply brief. An answer and counterclaim was filed on January 16, 1980 by the University, denying that it is legally required to produce any of the evidence requested by the subpoena.

The University offered numerous defenses:

1. It alleged that ANA members were employed only by the University's School of Nursing and that the information sought was a comparison of faculty members employed in different schools, who had different education and training, different academic missions and goals, received different external funding, had different students,

487 F. Supp. 1074

program course and course loads, and in all other respects were "not interchangeable or fungible"

2. It alleged that disclosure would result in an unwarranted invasion of the privacy of the University's employees.

3. It alleged that the information would be used only to develop comparative evidence of the University's employment practices and would not further any legitimate EEOC inquiry, thus resulting in direct, immediate, substantial and irreparable harm to the University and its employees.

4. It alleged the subpoena was overly broad and requested information which could not possibly bear any relationship to the subject of the charge filed with the EEOC and, thus, that the EEOC lacked standing to investigate any schools other than the School of Nursing, or to investigate alleged sex discrimination against female faculty members of any school other than the School of Nursing.

5. It also set forth that the subpoena would require the University to prepare compilations of data and perform other research which could not legally be demanded of it by the EEOC, and which would be unduly burdensome.

By way of counterclaim, the University sought, in addition to an order dismissing the EEOC's application, a declaratory judgment under 28 U.S.C. §§ 2201-2202 that the EEOC regulations with respect to disclosure of information obtained during an investigation were void and unenforceable, based on Section 709(e) of Title VII, 42 U.S.C. § 2000e-8(e), prohibiting any EEOC employee, under pain of criminal penalty, from making public any information obtained during the course of an investigation, and that the EEOC, in compliance with its own regulations (29 C.F.R. § 1601.22), discloses information obtained in investigations to certain persons as a matter of course, including charging parties, witnesses and their attorneys. The University claimed that such regulations directly controvert the purposes of the statute, thwarting encouragement of voluntary compliance by stimulating the filing of private actions at the same time that conciliation efforts are occurring, and that disclosure to such persons is tantamount to disclosure to the public at large.

By agreement...