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EEOC v. C&P TEL. CO.

February 3, 1993

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Applicant,
v.
C&P TELEPHONE COMPANY, C&P TELEPHONE COMPANY OF MARYLAND, C&P TELEPHONE COMPANY OF VIRGINIA, C&P TELEPHONE COMPANY OF WEST VIRGINIA, AND BELL ATLANTIC NETWORK SERVICES, RESPONDENTS.



The opinion of the court was delivered by: STANLEY S. HARRIS

MEMORANDUM ORDER

 Before the Court is the application of the Equal Employment Opportunity Commission ("EEOC") for the issuance of an Order to Show Cause why an administrative subpoena, issued by the EEOC on June 8, 1992, should not be enforced. The Court conditionally grants in part and denies in part the EEOC's application.

 Background

 On October 4, 1991, the Communication Workers of America ("CWA") and Felicia Sharp filed charges of discrimination against respondents C & P Telephone Company, C & P Telephone Company of Maryland, C & P Telephone Company of Virginia, C & P Telephone Company of West Virginia, and Bell Atlantic Network Services. The charges allege that respondents implemented a test for the "collector" position that had a disparate impact on non-white and female applicants.

 The EEOC initiated an investigation of these charges in accordance with its statutory obligations under § 706(b) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-5 (1992). During the course of that investigation, the EEOC made several requests to respondents to produce information concerning applicants who applied for the collector position between 1989 and 1991, and information regarding the tests used for this position during those years. The EEOC sought, inter alia, personal data about individual applicants, applicants' test results, copies of the tests themselves, and research and validation studies performed in conjunction with the institution of these tests. Respondents did not fully comply with these requests. On June 8, 1992, pursuant to § 710 of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-9 and § 1601.16(a) (1992), applicant issued and served an administrative subpoena duces tecum to respondents. Respondents have not fully complied with that subpoena. *fn1" The EEOC came to this Court seeking an order compelling respondents to produce the requested information.

 Discussion

 Scope of Judicial Review

 A district court's role in a proceeding to enforce an administrative subpoena is extremely limited. FTC v. Texaco, Inc., 180 U.S. App. D.C. 390, 555 F.2d 862, 871-72 (D.C. Cir.), cert. denied sub nom. Standard Oil Co. v. FTC, 431 U.S. 974, 97 S. Ct. 2939, 53 L. Ed. 2d 1072, 97 S. Ct. 2940 (1977) (citing Endicott Johnson Corp. v. Perkins, 317 U.S. 501, 63 S. Ct. 339, 87 L. Ed. 424 (1942)). An administrative subpoena for an agency investigation should be enforced if "the inquiry is within the authority of the agency, the demand is not too indefinite and the information sought is reasonably relevant." United States v. Morton Salt Co., 338 U.S. 632, 70 S. Ct. 357, 369, 94 L. Ed. 401 (1950) (quoting Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 66 S. Ct. 494, 90 L. Ed. 614 (1946)). A court will not enforce, however, a subpoena issued for any purpose that may be in bad faith. United States v. Powell, 379 U.S. 48, 85 S. Ct. 248, 255, 13 L. Ed. 2d 112 (1964). Moreover, a court will not enforce a subpoena if the party being investigated demonstrates that the subpoena is unduly burdensome. EEOC v. Maryland Cup Corp., 785 F.2d 471, 476 (4th Cir.), cert. denied, 479 U.S. 815, 107 S. Ct. 68, 93 L. Ed. 2d 26 (1986); Texaco, 555 F.2d at 882.

 The respondents do not contend that the EEOC's investigation exceeds the scope of its statutory authority. Nor is there any allegation that the subpoena is too indefinite. Rather, at issue is whether the information sought by the EEOC is relevant and whether the demand is unduly burdensome. *fn2"

 Subpoena Items 1a-c, 3a-b, and 3d seek information relating to the tests given to applicants who applied for the collector position between 1989 and 1991. Specifically, the EEOC seeks copies of the tests themselves, all documents relating to the validation studies and research regarding these tests, and all applicable federal guidelines relied on by respondents in creating these tests. This information is relevant and necessary to investigate allegations of test bias, allegations that the EEOC is statutorily authorized to investigate. Nor is there any dispute regarding the specificity of the subpoena. Therefore, the EEOC has met the threshold showing necessary for the enforcement of these subpoena items.

 Respondents claim, however, that the information need not be produced because it is confidential. Respondents' primary concern is that the EEOC will release the subpoenaed information to the CWA. Respondents contend that the EEOC's internal procedures are inadequate to preserve the confidentiality of this information and that disclosure to the CWA is likely.

 The need for confidentiality is not a valid basis to refuse to comply with a subpoena. See University of Penn. v. EEOC, 493 U.S. 182, 110 S. Ct. 577, 584, 107 L. Ed. 2d 571 (1990); EEOC v. Associated Dry Goods Corp., 449 U.S. 590, 101 S. Ct. 817, 825, 66 L. Ed. 2d 762 (1981). A court may, however, impose various conditions on the disclosure of confidential information to an administrative agency. See Texaco, 555 F.2d at 883-84 (recognizing the general authority of a district court to impose conditions on information disclosure, but finding that a particular district court order was too restrictive). The Court finds that it is appropriate in this case to condition enforcement of the subpoena on the signing of a confidentiality agreement.

 The Court finds that respondents have an extremely strong interest in protecting the subpoenaed information. If the CWA obtained the tests and disseminated them among its members, the test would, in effect, be destroyed. See Respondents' Memorandum at 6. The Supreme Court has recognized the importance of protecting against the destruction of employment tests. See Detroit Edison Co. v. NLRB, 440 U.S. 301, 99 S. Ct. 1123, 59 L. Ed. 2d 333 (1979). In Detroit Edison, the Supreme Court overturned an order of the National Labor Relations Board that directed an employer to disclose its aptitude tests to a union. In finding that the National Labor Relations Board had abused its discretion in ordering a release of the tests themselves, the Supreme Court recognized that test secrecy is critical to the validity of an employee aptitude testing program. Id. at 1125-26. If a union, through the institution of a discrimination charge with the EEOC, ...


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