U.S. E.E.O.C. v. Continental Airlines, Inc., No. 04 C 3055.

• Decision Date: 11 October 2005
• Docket Number: No. 04 C 3055.
• Citation: 395 F.Supp.2d 738
• Parties: UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. CONTINENTAL AIRLINES, INC., Defendant.
• Court: U.S. District Court — Northern District of Illinois

395 F.Supp.2d 738

UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. CONTINENTAL AIRLINES, INC., Defendant.

No. 04 C 3055.

United States District Court, N.D. Illinois, Eastern Division.

October 11, 2005.

June Wallace Calhoun, Gregory M. Gochanour, John C. Hendrickson, United

States Equal Employment Opportunity Commission, Richard John Mrizek, U.S. Equal Employment Opportunity Commission, Chicago, IL, for Plaintiff.

Shanthi V. Gaur, Amanda Helm Wright, Keith C. Hult, Littler Mendelson, P.C., Chicago, IL, for Defendants.

MEMORANDUM OPINION AND ORDER

KEYS, United States Magistrate Judge.

Currently before the Court is Defendant Continental Airlines, Inc.'s ("Continental") Motion to Compel the Production of the United States Equal Employment Opportunity Commission's ("EEOC") Investigative Memorandum. The EEOC investigated charges of discrimination, harassment, and retaliation filed by Continental's employee, Alaini Mustafaa. Continental now seeks to discover the EEOC's investigative report. For the reasons set forth below, Continental's Motion is denied.

Background Facts

Alaini Mustafaa is an African American woman, who began working for Continental on March 23, 1995. Ms. Mustafaa claims that, as one of the only African American females in a supervisory position, she was repeatedly subjected to harassment, discrimination, and retaliation at Continental. On October 1, 2001, Ms. Mustafaa filed with the EEOC a Charge of Discrimination, detailing Continental's alleged violations of Title VII of the Civil Rights Act of 1964. 42 U.S.C.2000e, et seq. (West 2005).

EEOC Investigator Tyler Graden headed the investigation into Ms. Mustafaa's Charge. After reviewing documents and interviewing witnesses, Mr. Graden issued an investigative report, which the EEOC relied upon in deciding how to proceed with Ms. Mustafaa's Charge. On April 28, 2004, the EEOC filed a complaint against Continental; the case was assigned to Judge Marvin E. Aspen.

During discovery, Continental served upon the EEOC its First Set of Interrogatories and Document Requests, including a request for "[a]ny and all documents contained in the Plaintiff's EEOC file concerning the individual charge of discrimination filed by Alaini Mustafaa (Charge No. 210A20007) against Defendant, or the investigation of said charges." Def.'s Request No. 2. The EEOC turned over responsive materials, but refused to produce the investigative report compiled by Mr. Graden. The EEOC argued that the report was protected by the governmental deliberative process privilege. Pursuant to Court Order, however, the EEOC agreed to produce Mr. Graden for a deposition.

On May 24, 2005, Continental deposed Mr. Graden. Mr. Graden testified that he had reviewed the investigative report in preparation for his deposition. In addition, the EEOC's counsel asked Mr. Graden about the method he used to compile the investigative report. Counsel for Continental argued that the EEOC had crossed the line, waiving any claim that the investigative report was privileged. Not surprisingly, the EEOC disagreed. Despite attempts to resolve the dispute without the court's involvement, the parties could not reach an accord. Judge Aspen referred the matter to this Court for resolution.

Discussion

Continental argues that the EEOC should be required to produce its investigative report, because it is relevant to the issues forming the basis of the litigation. Continental disputes that the deliberative process privilege applies, and further argues that, even if the EEOC could satisfy the prerequisites for application of the privilege, the EEOC waived the privilege by divulging the contents of the investigative report during Mr. Graden's deposition, and by having Mr. Graden review the investigative report before his deposition. The Court will address each argument in turn.

A. The Governmental Deliberative Process Privilege

"Traditionally, government deliberations have been protected by a variety of qualified privileges in order to promote efficient and effective decision-making which is fueled by the free-flow of information." In re Bank One Securities Litigation, 209 F.R.D. 418, 426 (N.D.Ill.2002) citing United States v. Farley, 11 F.3d 1385 (7th Cir.1993) (recognizing that the deliberative process privilege, which operated to protect pre-decisional documents created by the Federal Trade Commission, encouraged frank discussion of legal and policy matters). One such privilege, the deliberative process privilege, protects the decision-making process of government agencies in certain circumstances. EEOC v. Sears, Roebuck & Co., 111 F.R.D. 385, 390 (N.D.Ill.1986). Specifically, the privilege extends only to "predecisional" governmental documents, which reveal the "give and take of the consultative process." EEOC v. Stauffer Chemical Co., No. 89 C 2725, 1990 WL 19967, at *1 (N.D.Ill. Feb. 27, 1990) (explaining that predecisional documents are generated before the adoption of an agency policy or decision).

In the instant case, the EEOC's investigative report, which the Court viewed in camera, clearly constitutes a predecisional governmental document that is "actually ... related to the process by which policies are formulated." Brown v. United States Patent and Trademark Office, 355 F.Supp.2d 940, 942 (N.D.Ill.2005) (quoting Jordan v. Unites States Dep't of Justice, 591 F.2d 753, 774 (D.C.Cir.1978) (en banc)). The report was created before the EEOC made its decision to pursue its enforcement action against Continental, readily satisfying the predecisional prong of the deliberative process privilege test.

Turning to the second prong of the privilege's test, the Court concludes that the report was created for the purpose of assisting the EEOC in its decision regarding Ms. Mustafaa's Charge. The investigative report reflects Mr. Graden's impressions about the information learned during the course of his investigation, and contains recommendations to his EEOC superiors with respect to Ms. Mustafaa's EEOC Charge¹. As Judge Aspen stated, "[i]t is precisely these types of records that the deliberative process privilege is designed to protect." Brown, 355 F.Supp.2d at 942.

In addition to making this showing, the EEOC has also complied with the formal requirements for asserting the privilege by having its department head, EEOC Chair Cari M. Dominguez: 1) make a knowing and formal claim of privilege; 2) submit a Declaration stating the precise reasons for preserving the confidentiality of the investigative report; and 3) identify and describe the documents. See K.L v. Edgar, 964 F.Supp. 1206, 1209 (N.D.Ill.1997). Because the EEOC has satisfied its threshold burden of establishing that the privilege applies, Continental now has the burden of showing a particularized need for the investigative report. Id.

In weighing Continental's need for the material against the EEOC's need for privacy, the Court considers: 1) the relevance of the evidence sought; 2) the availability of other evidence; 3) the government's role in the litigation; 4) the seriousness of the litigation and the issues involved in it; and 5) the extent to which the disclosure would hinder frank communications within the governmental agency. Id.

Initially, the Court concludes that, when viewing the investigative report in its entirety, the information in the report is clearly relevant to the primary issue of discrimination. The Court acknowledges that "[t]he existence of probable cause to sue is generally and in this instance not judicially reviewable," EEOC v. Caterpillar, 409 F.3d 831, 833 (7th Cir.2005), but the evidence unearthed by Mr. Graden and documented in the investigative report goes to the heart of the underlying claims of discrimination.

Nevertheless, "relevance alone is an insufficient reason for breaching the deliberative process privilege." Farley, 11 F.3d at 1390. More important is the fact that Continental has not shown that its need for the materials outweighs the EEOC's interest in not disclosing the investigative report. Id. at 1389-90. The information that Continental purportedly seeks has already been made available to Continental. In particular, the EEOC produced the facts contained in the report to Continental when it turned over the interview notes. Because the EEOC has produced all of the source materials to Continental, the information Continental purportedly seeks is already available to Continental, and Continental cannot make the requisite showing of particularized need².

Requiring the EEOC to produce the investigative memorandum when it has already produced the underlying source material would reveal nothing more than Mr. Graden's deliberations and assessment of the evidence. Subjecting such deliberations and assessments to disclosure would hinder future agency communications; courts cannot expect frank and open internal communications if "each remark is a potential item of discovery and front page news." Enviro Tech Int'l, Inc. v. U.S. Environmental Protection Agency, 371 F.3d 370, 374 (7th Cir.2004).

Because the Court concludes that Continental has not demonstrated a particularized need for the investigative report, the privilege applies and the Court turns to Continental's claims of waiver.

B. The EEOC Did Not Waive the Privilege

Continental argues that the EEOC waived any claim that the investigative report is privileged³, because: 1) Mr. Graden revealed the substance of the investigative report at his deposition; and 2) Mr Graden reviewed the report to refresh his memory in preparation for his deposition.

Continental notes that, during Mr. Graden's deposition, the EEOC's counsel questioned Mr. Graden about his preparation of the investigative report. Specifically, the EEOC's counsel asked Mr. Graden: 1) "When you did your investigative memorandum for this case, did you put all of the facts and evidence obtained during your investigation into the investigative memorandum?"; 2) "How did you...