Venetian Casino Resort v. E.E.O.C., CIV. 00-2980 RJL.

• Decision Date: 29 September 2006
• Docket Number: No. CIV. 00-2980 RJL.,CIV. 00-2980 RJL.
• Citation: 453 F.Supp.2d 157
• Parties: VENETIAN CASINO RESORT, Plaintiff, v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Defendant.
• Court: U.S. District Court — District of Columbia

453 F.Supp.2d 157

VENETIAN CASINO RESORT, Plaintiff, v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Defendant.

No. CIV. 00-2980 RJL.

United States District Court, District of Columbia.

September 29, 2006.

COPYRIGHT MATERIAL OMITTED

Kenneth McCulloch, Ballard Rosenberg Golpher & Savit LLP, New York City, Steven David Cundra, Hall, Estill, Hartwick, Gable, Golden, & Nelson, P.C., Washington, DC, for Plaintiff.

Alan Burch, Edith M. Shine, U.S. Attorney's Office, Washington, DC, for Defendant.

MEMORANDUM OPINION

LEON, District Judge.

Plaintiff, Venetian Casino Resort ("Venetian" or "Venetian Casino"), brings this action against defendant, the Equal Employment Opportunity Commission ("EEOC" or "the Commission"), seeking to prevent the EEOC from releasing documents acquired from plaintiff during past and current EEOC investigations. Plaintiff alleges that the EEOC's policy regarding the disclosure of confidential and/or proprietary information obtained through the Commission's investigations violates Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq.; the Trade Secrets Act, 18 U.S.C. § 1905; the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 et. seq.; Executive Order No. 12,600, §§ 1-3, Fed.Reg. 23781 (June 23, 1987); the Copyright Act, 17 U.S.C. § 101, et. seq.; and the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 553, 701-06. Currently before the Court are defendant's Motion to Dismiss, or in the Alternative, for Summary Judgment and plaintiffs Motion for Summary Judgment and/or Declaratory Judgment.¹ For the reasons set forth below, defendant's Motion for Summary Judgment is GRANTED and plaintiffs cross-motion is DENIED.

BACKGROUND²

In the spring of 1999, the Venetian Casino conducted a "mass hiring process" to staff a new hotel, casino, and resort in Las Vegas. (Am.Compl.¶ 4.) In its wake, at least eleven people filed employment discrimination complaints with the EEOC against Venetian, alleging discrimination based on age, race, and color in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621, and Title VII. (Id. ¶¶ 7, 82.)

As part of investigating the complaints, the EEOC requested from Venetian Casino certain information, including data about the employees. (Id. ¶ 28.) When Venetian did not respond to the EEOC's information requests, the Commission issued an administrative subpoena for the information. (Id.) Venetian objected to the subpoena through the EEOC's administrative subpoena procedures as outlined in 29 C.F.R. § 1601.16. (Id. ¶ 30.) The EEOC denied those objections (id.), and Venetian then brought this action against the EEOC for declaratory and injunctive relief in December 2000.

In February 2002, Venetian settled all claims related to race, color, and national origin under Title VII, but not the claims of age discrimination. (See Order of Dismissal, Dkt. # 22.) The EEOC's age discrimination files for the Venetian, as a result, remained open.

At this juncture, Venetian's overarching contention is that the EEOC's policy regarding, the disclosure of information deemed confidential and/or proprietary violates Title VII, the Trade Secrets Act, FOIA, Executive Order No. 12, 600, the Copyright Act, and the APA. Indeed, Venetian contends that because the EEOC does not require employers that submit information to be given predisclosure notice, the EEOC's current policy constitutes a "back door" by which charging parties, their counsel, and incidental third parties may obtain access to open case files without the need for a FOIA request.³

On January 12, 2004, this Court granted defendant's Motion to Dismiss on the ground that the issue was not ripe for review. Venetian Casino Resort v. EEOC, 360 F.Supp.2d 55, 60 (2004). On May 27, 2005, our Circuit reversed, holding that "the question of whether EEOC's disclosure policy is lawful presents a live and focused dispute emanating from agency action that is both final and consequential to Venetian." Venetian Casino Resort v. EEOC, 409 F.3d 359, 367 (2005). Accordingly, this Court issued an Order on November 10, 2005, requiring both parties to file cross-motions for summary judgment on the following issue: "Assuming the EEOC has a disclosure policy or practice, written or otherwise, that allows the agency to release documents that the submitting party has identified as containing trade secrets and/or confidential material without first notifying the submitting party, whether the policy is lawful." (Order, Dkt. # 44 (emphasis in original).) Briefing was complete on January 30, 2006, and thus, this is the sole issue currently before the Court.

ANALYSIS

Reduced to its essence, plaintiffs contend that the disclosure policy of the EEOC by which it releases documents that the submitting party has identified as containing trade secrets and/or confidential matters, without first notifying the submitting party, is unlawful because it violates (1) Title VII; (2) the Trade Secrets Act and the FOIA; (3) Executive Order 12, 600; (4) the Copyright Act; and (5) the APA.⁴ For the following reasons, the Court disagrees and, accordingly, GRANTS the EEOC's Cross Motion for Summary Judgment.⁵

1. Title VII of the Civil Rights Act of 1964

In creating the EEOC under Title VII, Congress combined administrative and judicial means of eliminating employment discrimination.⁶ Title VII gives the EEOC two formal means of obtaining information when it investigates a charge: (1) The EEOC may examine and copy any evidence in the possession of the employer being investigated, 42 U.S.C. § 2000e-8(a), and (2) it may subpoena evidence and documents, 42 U.S.C. § 2000e-9. Title VII limits the ability of the EEOC to make public disclosures of information gathered during its investigations, however, directing that."[c]harges shall not be made public by the Commission." 42 U.S.C. § 2000e-5(b). And while it does not define the word "public," as it is used in its regulation governing disclosure, the EEOC construes the statute's prohibition of "public" release of information to permit pre-litigation disclosure of charges and of investigative information to the parties or witnesses where such disclosure "is deemed necessary for securing appropriate relief."⁷ 29 C.F.R. § 1601.22 (emphasis added); see also Equal Employment Opportunity Comm'n v. Associated Dry Goods Corp., 449 U.S. 590, 596, 101 S.Ct. 817, 66 L.Ed.2d 762 (1981). Indeed, the EEOC's disclosure regulation specifically codifies this position. See 29. C.F.R. § 1601.22 (permitting "disclosures to charging parties, or their attorneys, respondents or their attorneys, or witnesses where disclosure is deemed necessary for securing appropriate relief").

Despite this statutory disclosure limitation, the United States Supreme Court, in Equal Employment Opportunity Commission v. Associated Dry Goods, Corp., 449 U.S. 590, 101 S.Ct. 817, 66 L.Ed.2d 762 (1981), explicitly upheld the EEOC's practice of making limited disclosures of confidential information to charging parties of their own Title VII charge files. Id. at 597-603, 101 S.Ct. 817. In Associated Dry Goods, as in the present case, an employer sued the EEOC seeking a declaration that the EEOC's disclosure policy embodied in Section 83 of its Compliance Manual was unlawful. Specifically, the employer alleged a violation of the confidentiality provisions of Title VII. In holding that the disclosure policy did not violate Title VII, the Supreme Court specifically noted the principle that courts should respect an agency's contemporaneous construction of its founding statute, reasoning that the principle supports affirming the EEOC's interpretation of Title VII, since the EEOC issued its disclosure policy shortly after Congress created it in 1965. Id. at 600 n. 17, 101 S.Ct. 817 (citing Power Reactor Dev. Co. v. Int'l Union of Elec., Radio & Mach. Workers, AFL-CIO, 367 U.S. 396, 408, 81 S.Ct. 1529, 6 L.Ed.2d 924 (1961)). Further, the Supreme Court held that such a contemporaneous construction warrants special deference when it has remained consistent over a long period of time. Id. (citing Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 210, 93 S.Ct. 364, 34 L.Ed.2d 415 (1972)).

The current EEOC disclosure regulation, like that in effect at the time the Associated Dry Goods decision was rendered, reflects no significant change from the original regulation that permitted disclosure to the charging party and others "as may be appropriate or necessary to the carrying out of the Commission's functions. ..." 30 Fed.Reg. 8409 (1965); cf. 29 C.F.R. § 1601.22. The Supreme Court further noted that Congress never expressed disapproval of the procedure, and its silence suggests its consent to the EEOC's practice. Associated Dry Goods, 449 U.S. at 600 n. 17, 101 S.Ct. 817 (citing United States v. Jackson, 280 U.S. 183, 196-97, 50 S.Ct. 143, 74 L.Ed. 361 (1930)) This is precisely the practice that plaintiff challenges in this suit.

Moreover, in upholding the EEOC's disclosure policy, the Supreme Court concluded that the EEOC's interpretation of its founding statute

is consistent with the coordinated scheme of administrative and judicial enforcement which Congress created to enforce Title VII. First, limited disclosure to the parties can speed the Commission's required investigation: the Commission can more readily obtain information informally—rather than through its formal powers under 42 U.S.C. § 2000e-9—if it can present the parties with specific facts for them to corroborate or rebut. Second, limited disclosure enhances the Commission's ability to carry out its statutory responsibility to resolve charges through informal conciliation and negotiation: A party is far more likely to settle when he has enough information to be able to assess the strengths and weaknesses of his opponent's case as well as his own.

Id. at 600-01, 101 S.Ct. 817. The Court further reasoned that "[i]f the Commission were not allowed to disclose...