Equal Employment Opportunity Comm'n v. Wash. Suburban Sanitary Comm'n
| Decision Date | 26 January 2011 |
| Docket Number | No. 09–2263.,09–2263. |
| Citation | 631 F.3d 174 |
| Parties | EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Petitioner–Appellee,v.WASHINGTON SUBURBAN SANITARY COMMISSION, Respondent–Appellant. |
| Court | U.S. Court of Appeals — Fourth Circuit |
OPINION TEXT STARTS HERE
ARGUED: Todd James Horn, Venable, LLP, Baltimore, Maryland, for Appellant. Susan Ruth Oxford, Equal Employment Opportunity Commission, Washington, D.C., for Appellee. ON BRIEF: George W. Johnston, Venable, LLP, Baltimore, Maryland, for Appellant. P. David Lopez, General Counsel, Carolyn L. Wheeler, Acting Associate General Counsel, Lorraine C. Davis, Assistant General Counsel, Equal Employment Opportunity Commission, Washington, D.C., for Appellee.Before WILKINSON and NIEMEYER, Circuit Judges, and PATRICK MICHAEL DUFFY, Senior United States District Judge for the District of South Carolina, sitting by designation.Affirmed by published opinion. Judge WILKINSON wrote the opinion, in which Judge NIEMEYER and Senior Judge DUFFY joined.
The Washington Suburban Sanitary Commission (“WSSC”), a public utility, restructured its Information Technology (“IT”) Department by eliminating essentially all of its merit-system positions and replacing them with reorganized, non-merit-system ones. Some of the displaced employees filed an age discrimination complaint with the Equal Employment Opportunity Commission, alleging that WSSC conducted the restructuring in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq.
The EEOC subpoenaed WSSC for records related to the restructuring and to the IT Department's training practices, employment policies, and discrimination history. WSSC declined to comply: it argued that legislative immunity and privilege shielded the materials because the restructuring was partially accomplished through county budget processes. After the EEOC dropped certain portions of its request, the district court ordered WSSC to comply with the remainder of the subpoena.
WSSC now appeals that order, again pressing its claim to legislative immunity and privilege. We recognize the great importance of protecting legislators from intrusive and costly inquiries into their legislative acts. But we decline to intervene in the EEOC's investigation at this time. It is simply too early to tell whether the investigation will ever involve the application of coercive process against legislators and accordingly premature to address speculative claims of legislative privilege. The order of the district court is therefore affirmed.
WSSC is a bi-county governmental body providing water and sewer services to most of Prince George's and Montgomery Counties in Maryland. See generally Md.Code Ann. art. 29, § 1–101 et seq.; Katz v. WSSC, 284 Md. 503, 397 A.2d 1027, 1032 (1979) ().1 It is led by six commissioners, and each county selects three of the six. In 2005 WSSC hired a new General Manager, Andrew Brunhart, and a new Chief Information Officer, Goutam Kundu. Kundu was in charge of WSSC's IT Department. Late that year Kundu conducted an assessment of the IT Department and concluded that it needed to be restructured, with essentially all of its current, merit-system positions eliminated and replaced with newly created, non-merit ones. WSSC contends that eliminating the old positions in favor of new, non-merit ones allowed WSSC to offer higher salaries, thereby attracting more highly skilled employees and alleviating the problems that Kundu found to be affecting the IT Department.
The proposed changes required an increase to the IT Department's proposed Fiscal Year (“FY”) 2007 budget. General Manager Brunhart forwarded the changes, along with the rest of the proposed WSSC budget, to the WSSC Commissioners. The Commissioners met to discuss the budget, and they reviewed details regarding the proposed IT reorganization. The Commissioners voted to send the preliminary budget, including the changes stemming from the restructuring, to a public hearing. In February 2006 Kundu made another presentation to the Commissioners regarding the reorganization, and they voted in favor of the proposal. Shortly thereafter, they unanimously approved the FY 2007 budget at a public meeting, sending the proposed budget on to the county executives.
Maryland law required the county councils to review WSSC's budget and gave the councils authority to “add to, delete from, increase, or decrease [a budget] item.” Md.Code Ann. art. 29, § 1–204(c)(1)(ii). Accordingly, WSSC also had discussions with the councils about the proposed restructuring. County participants at a budget session asked for details about financial aspects of the restructuring, and WSSC provided the county executives and county council members information about the restructuring's purpose and impact. Both county councils addressed, to some degree, the proposed restructuring. A subcommittee of the Prince George's County Council devoted a meeting to the topic, with some members expressing concerns about the impact on current employees. The full council, however, completed its review of WSSC's proposed budget, including the IT Department restructuring, without recommending any changes.
Similarly, a subcommittee of the Montgomery County Council received a report that contained an analysis of the budget's impact on employment. After a hearing at which one council member expressed some concerns about the restructuring, the subcommittee as a whole made no recommendation either way. 2 The entire Montgomery County Council then met, with some members again voicing concerns about eliminating the merit positions. However, the council ultimately sent budget recommendations to Prince George's County that made no mention of the restructuring or of its accompanying IT Department funding increase.
The two counties met to resolve unrelated disagreements regarding the FY 2007 budget. After the counties failed at this effort, however, the proposed budget became final by operation of law. Before implementing the restructuring, WSSC notified current employees of the plan, encouraged them to apply for positions in the restructured department, and provided them with transitional support. On July 21, 2006—after all the new positions had been filled—current employees who were not offered post-restructuring jobs were told that August 6 would be their last day on the job.
Not everyone was happy about the restructuring. In October 2006, Colleen Bowen and fifteen other former employees filed suit in Maryland state court against WSSC, the WSSC Commissioners, Brunhart, and Kundu. Plaintiffs alleged that the restructuring violated Maryland law and WSSC's own policies regarding merit system positions, that it violated the plaintiffs' due process rights, and that it impermissibly discriminated against them on the basis of their age. In December 2006, Bowen and fourteen others also filed age discrimination charges against WSSC with the EEOC. They alleged that WSSC discriminated against them in training decisions made prior to the restructuring, that the restructuring was actually motivated by a desire to eliminate the older workers and to avoid paying their approaching retirement benefits, and that WSSC discriminatorily hired undertrained younger workers to fill the new positions.
WSSC responded to the state and federal proceedings by asserting legislative immunity and legislative privilege. The state trial court dismissed without prejudice WSSC's contentions, and in September 2007 the Maryland Court of Special Appeals rejected WSSC's appeal on the grounds that the ruling was not a final judgment. The Maryland Court of Appeals granted WSSC's petition for certiorari, but in the meantime the EEOC requested additional information from WSSC and, in May 2008, subpoenaed it. In April 2009 the EEOC sought to enforce the subpoena in federal district court, though the proceedings were stayed pending the Maryland Court of Appeals's decision. That court ultimately decided that it could not hear WSSC's interlocutory appeal, see WSSC v. Bowen, 410 Md. 287, 978 A.2d 678, 683–87 (2009), leaving the district court to adjudicate whether WSSC had to comply with the EEOC's subpoena.
The subpoena requested a broad range of documents, summarized here:
• Kundu's employee file, as well as the complainants' files, the files of former IT employees who applied for post-restructuring positions, and the files of those who made post-restructuring employment decisions for WSSC.
• Analyses and standards WSSC used in deciding to abolish the existing positions, along with records of internal deliberations about that decision.
• Tests WSSC used in making employment decisions since 2005, as well as any criteria used in making hiring decisions during and after the restructuring.
• The names of everyone employed by WSSC since 2005, everyone terminated because of the restructuring, everyone who applied for post-restructuring positions, everyone hired for such positions, everyone responsible for making post-restructuring hiring decisions, and every former employee who was rehired after the restructuring.
• Advertisements used during and after the restructuring to advertise for IT Department positions.
• Documents related to training opportunities provided to IT Department employees since 2005.
• Job descriptions and requirements for IT Department positions since 2005, as well as the applications submitted for post-restructuring positions.
• Records of all IT Department hires, promotions, discipline, and voluntary separations since 2005, along with records of any allegation of age discrimination or retaliation lodged against WSSC and of the WSSC's formal and informal employee policies.
During the district court proceedings, however, the EEOC modified its request, dropping the items demanding records of internal...
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