Equal Employment Opportunity Commission v. Bashas' Inc.

Filing 109

ORDER that for the reasons just discussed, after considering the parties' respective proposed confidentiality orders (Docs. 107-1and 108-1,p. 2-10), the court hereby ORDERS the entry of a Confidentiality Order, which is being separately filed simultaneously herewith. Signed by Judge Robert C Broomfield on 12/8/11. (DMT)

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1 WO 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE DISTRICT OF ARIZONA 9 10 11 12 Equal Employment Opportunity Commission, 13 Petitioner, 14 vs. 15 Bashas’, Inc., 16 17 Respondent. ) ) ) ) ) ) ) ) ) ) ) ) No. CIV 09-0209 PHX RCB O R D E R 18 19 On September 30, 2011, this court ordered, inter alia, that 20 “within ten (10) days of the date [t]hereof the parties shall file 21 with the court, for its review and approval, a joint proposed 22 confidentiality order.” 23 added). 24 such an order, the parties indicated that they were “hopeful” that 25 an “extension w[ould] allow them to work through differing concerns Ord. (Doc. 104) at 63:17-191 (emphasis Jointly seeking an extension of time in which to submit 26 27 28 1 For ease of reference, all citations to page numbers of docketed items are to the page assigned by the court’s case management and electronic case filing (CM/ECF) system. 1 and jointly submit a proposed order.” 2 Even with an extension, the parties were unable to “work through” 3 their differences. 4 Opportunity Commission (“EEOC”), and the respondent, Bashas’, Inc., 5 therefore, each submitted separate proposed confidentiality orders 6 for this court’s review. 7 two very divergent proposed confidentiality orders. 8 9 10 See id. Mot. (Doc. 105) at 1:18-19. The petitioner, the Equal Employment Consequently, the court now has before it Discussion I. Need for Confidentiality Order Before comparing the substance of those orders, the court is 11 compelled to make explicit what was formerly implicit - - the need 12 for a confidentiality order here extending beyond the statutory and 13 regulatory safeguards already in place. 14 subpoena enforcement action, those safeguards would adequately 15 protect a respondent/employer’s confidentiality concerns. 16 been anything but an ordinary EEOC subpoena enforcement action 17 though, as thoroughly discussed in prior court orders.2 In the ordinary EEOC This has 18 Vigorously opposing this EEOC investigation, Bashas’ 19 maintained that this subpoena enforcement action constituted an 20 abuse of process. 21 the notion that the EEOC is pursuing this investigation with an 22 improper motive, i.e., “to bolster the struggling Parra3 23 litigation.” Central to Bashas’ abuse of process theory is Resp.’s Brief (Doc. 103) at 4:11 (footnote added). 24 25 26 27 2 See, e.g., EEOC v. Bashas’, Inc., Doc. 104 (Sept. 30, 2011); EEOC v. Bashas’, Inc., 2009 WL 3241763 (D.Ariz. Sept. 30, 2009); and EEOC v. Bashas’, Inc., 2009 WL 1783437 (D.Ariz. June 18, 2009). The court assumes familiarity with those decisions and, for the sake of brevity, adopts the relevant parts as if fully set forth herein. 3 28 Parra refers to the related private class action of Parra v. Bashas’, Inc., No. CIV 02-0591, familiarity with which also is assumed. -2- 1 Ultimately, however, Bashas’ was unable to prove that theory with 2 the requisite degree of proof. 3 renewed Order to Show Cause (“OSC”) to enforce the subject 4 subpoena, albeit with some modifications. 5 Hence, the court granted the EEOC’s Nonetheless, the hearing on that OSC heightened rather than 6 allayed the court’s concerns as to the EEOC’s conduct herein. 7 court cannot turn a blind eye to the strong correlation between 8 setbacks for the plaintiffs in the Parra litigation and the EEOC’s 9 conduct herein. The To be sure, Bashas’ did not establish that the 10 initiation of the Commissioner’s Charge; the timing of the filing 11 of this action; or the timing of other aspects of this 12 investigation, such the EEOC’s requests for Bashas’ employee data, 13 were tantamount to an abuse of process. 14 especially the testimony of Ms. O’Neill, the Regional Attorney for 15 the EEOC’s Phoenix District Office, leaves the court with grave 16 concerns, however, regarding the close ties between the EEOC and 17 counsel for the plaintiffs in Parra. 18 court even more pause at this juncture because to comply with the 19 EEOC’s subpoena, Bashas’ must produce a fairly wide range of 20 employee payroll and personnel data 21 previously held that the Parra plaintiffs were not entitled. The record as a whole, and That relationship gives the - data to which this court 22 Perhaps the subpoenaed personnel and payroll data in the 23 present case is not as “exceptionally sensitive” as the employment- 24 related tests in EEOC v. Aon Consulting, Inc., 149 F.Supp.2d 601 25 (S.D.Ind. 2001), where the court required that such information “be 26 kept confidential from the charging party.” 27 added); see also EEOC v. C & P Telephone Co., 813 F.Supp. 874 28 (D.D.C.1993) (permitting a limited confidentiality agreement to -3- Id. at 608 (emphasis 1 protect employment tests). 2 herein is not as sensitive as the “personally identifiable medical 3 information and records [of] other employees” in EEOC v. Alabama 4 Dep’t of Youth Services, 2006 WL 1766785, at *3 (M.D.Ala. 2006), 5 which the EEOC was prohibited from disclosing to the charging party 6 without prior court approval. 7 Likewise, arguably the subpoenaed data Partially due to the breadth of the subpoenaed employee data 8 though, potentially it is quite sensitive. 9 more sensitive taking into account the close nature of the That data becomes even 10 relationship between the EEOC and counsel for the Parra plaintiffs, 11 and the substantial similarity between the Commissioner’s Charge 12 and the allegations in Parra. 13 factors renders a confidentiality order even more of a necessity 14 here than in the foregoing cases. 15 fact that a non-disclosure agreement under section 83 of the 16 Compliance Manual, alluded to in the EEOC’s proposed order, would 17 not sufficiently protect Bashas’ interests. 18 813 F.Supp. at 877 (EEOC did not adequately assure respondents that 19 their interests would be protected by a section 83 non-disclosure 20 agreement because it was “unclear how the EEOC effectively could 21 enforce such an agreement[]”). 22 this particular EEOC investigation mandate entry of a 23 confidentiality order to safeguard Bashas’ interest in maintaining 24 the confidentiality of its employee data. Indeed, the combination of those two Bolstering this finding is the See C & P Telephone, In sum, the unique circumstances of 25 II. Contents of Proposed Confidentiality Orders 26 In submitting its proposed order, Bashas’ explains how the 27 parties arrived at an impasse and hence the submission of separate 28 orders. Rather than engaging in any meaningful dialogue with -4- 1 respect to the parties’ differences, the EEOC’s stance has 2 continued to be one of intransigence. The EEOC’s response to 3 Bashas’ proposed draft best exemplifies that intransigence. After 4 “review[ing] prior versions of drafts circulated between” the 5 parties earlier in this litigation, the objections thereto, and 6 this court’s order requiring a confidentiality order, “Bashas’ 7 prepared a revised draft of its proposed Order, . . . specifically 8 deal[ing] with” the EEOC’s concerns. See Bashas’ Filing Regarding 9 Confidentiality Order as Ordered by Court (“Resp.’s Filing”) (Doc. 10 108) at 1:19-22. Additionally, Bashas’ prepared a chart 11 summarizing the differences between the parties’ respective 12 proposed orders. See Summary of Differences between Bashas’ and 13 EEOC’s Proposed Confidentiality Agreements (“Summary”) (Doc. 10814 2). That chart also includes “Bashas’ Proposed Resolution[s][.]” 15 Id. Further, as part of its revision process Bashas’ conceded that 16 the EEOC did not have to return to Bashas’ all confidential 17 documents and copies. Resp.’s Filing, exh. 1 thereto (Doc. 108-1) 18 at 16. 19 In response, the EEOC sent a draft order previously rejected 20 by Bashas’. See id. at 1:26-27. The omission of a single citation 21 was the only difference between the two EEOC drafts. 22 1:27. See id. at Evidently the EEOC did not address Bashas’ summary of 23 differences, nor Bashas’ proposed resolutions. Instead, according 24 to Bashas’, the EEOC reiterated its “unwilling[ness] to enter into 25 any order that goes beyond the requirements of . . . FOIA [Freedom 26 of Information Act] or the confidentiality provided for in EEOC 27 regulations.” Id. at 2:2-4. In fact, the EEOC submitted its 28 proposed order to this court while simultaneously “maintain[ing] -5- 1 that no confidentiality order is needed or appropriate” here. 2 Petitioner EEOC’s Proposed Confidentiality Order (“Pet.’s Prop. 3 Ord.”) (Doc. 107) at 1:24. 4 The EEOC’s proposed order (barely one page long) adheres to 5 its view that Title VII’s two prohibitions against public 6 disclosure, 42 U.S.C. §§ 2000e-5(b)4 and 2000e-8(e);5 its own 7 similar non-disclosure rule, 29 C.F.R. § 1601.226; and section 83 8 of the EEOC’s Compliance Manual,7 are sufficient “to maintain the 9 confidentiality of information contained in its investigative 10 files.” Id. at 2:8-9. Disclosure in violation of sections 2000e- 11 5(b) and 20003-8(e) is punishable by a fine of up to $1,000 or 12 imprisonment up to one year, or both. In its proposed order the 13 EEOC also recognizes its obligation to comply with disclosure 14 requests made pursuant to the FOIA, 5 U.S.C. § 552, et seq. 15 id., exh. A thereto (Doc. 107-1) at 1, ¶¶ II(4); and III (6). See In 16 requesting entry of its proposed order, without any explanation, 17 the EEOC asserts that “[i]mposing additional burdens and restraints 18 19 20 21 22 23 24 25 26 27 4 In addition to prohibiting the EEOC from making “public” its charges, that section “also forbids the public disclosure or use in a subsequent proceeding of any information acquired during the informal procedures.” EEOC v. Recruit U.S.A., Inc., 939 F.2d 746, 751 (9th Cir. 1991) (citations omitted). 5 The EEOC’s proposed order mistakenly refers to 42 U.S.C. “2000-8(e)[.]” Pet.’s Prop. Ord. (Doc. 107), exh. A thereto (Doc. 107-1) at 1, ¶ II(4). There is no such statute so presumably the EEOC meant to refer to section 2000e-8(e). Among other things, that section makes it “unlawful for any officer or employee of the” EEOC “to make public in any manner . . . information obtained by the” EEOC “prior to the institution of any proceeding . . . involving such information.” 42 U.S.C. § 2000e-8(e). 6 Much like Title VII’s non-disclosure provisions, this EEOC regulation provides that an EEOC charge and “any information obtained during the investigation of” a charge of discrimination under Title VII “shall” not “be made matters of public information” by the EEOC “prior to the institution of any proceeding under . . . Title VII involving such charge or information.” 29 C.F.R. § 1601.22. 7 28 That section governs the “Disclosure of Information in Open Files[.]” EEOCCM § 83.1, 2006 WL 4673280 (emphasis omitted). -6- 1 . . . beyond what” the foregoing “already requires would impede its 2 ability to conduct [sic] investigation.” 3 Id. at 3:6-9. The EEOC’s response and proposed order is troubling, 4 especially in the face of this court’s September 30, 2011, order. 5 If this court were convinced that the existing statutory and 6 regulatory protections were adequate, it would not have ordered the 7 submission of a joint proposed confidentiality order. Clearly the 8 court contemplated that the parties would jointly agree to some 9 additional protections. 10 Not unexpectedly, Bashas’ proposed eight page order contains 11 far more detail than does the EEOC’s. 12 the differences between the parties’ orders is illuminating. 13 After reviewing that summary, comparing the two proposed orders,8 14 and taking into account the exceedingly rare and unique 15 circumstances of this proceeding, the court finds that a 16 confidentiality order substantially in the form which Bashas’ 17 proposes is necessary. 18 Bashas’ chart summarizing Before outlining the specific terms of Bashas’ proposed 19 order, it is noteworthy that the EEOC’s proposed order does not 20 include any sections corresponding to paragraphs 11 through 19 of 21 Bashas’ proposed order. 22 paragraphs, essentially the court will include those paragraphs in 23 the form which Bashas’ proposes. 24 After carefully considering each of those Several of Bashas’ other proposed provisions warrant closer 25 26 27 28 8 The order which the EEOC eventually submitted to this court differs from the one that it provided to Bashas’ when they were attempting to agree on the terms of a joint proposed order. The EEOC’s order for this court’s consideration omits the final paragraph, which puts the burden on Bashas’ to identify any documents it believes are exempt from production under FOIA. See Resp.’s Filing (Doc. 108), exh. 3 thereto (Doc. 108-3) at 3, ¶ III(8). -7- 1 scrutiny though. 2 “confidential information” and “confidential commercial 3 information.” 4 “mean[] any document designated in good faith by counsel as 5 confidential in accordance with the terms of this Order[,]” 6 Resp.’s Prop. Ord. (Doc. 108-1) at 3:5-7, ¶ I(c), whereas the 7 EEOC’s proposed order does not define “confidential information.” 8 Nor does it allow for a document to be designated as such. 9 Instead, the EEOC’s proposed order refers only to the narrower 10 category of “[c]onfidential commercial information[,]” which it 11 vows not to disclose “except in accordance with 29 C.F.R. 12 § 1610.19[,]” Pet.’s Prop. Ord. (Doc. 107-1) at 2, ¶ III(7) 13 (emphasis added), governing “[p]redisclosure notification 14 procedures for confidential commercial information.” 15 § 1610.19. 16 exempt for disclosure under [FOIA exemption four], because 17 disclosure could reasonably be expected to cause substantial 18 competitive harm.” 19 confidential information in general, FOIA specifically exempts 20 from disclosure “trade secrets and commercial or financial 21 information obtained from a person and privileged or 22 confidential[.]” 5 U.S.C. § 552(b)(4). The first pertains to the distinction between Bashas’ defines “confidential information” to 29 C.F.R. That type of confidential information is “arguably 29 C.F.R. § 1610.19(a)(1). Unlike 23 So that information other that strictly “commercial” may be 24 designated as “confidential,” Bashas’ proposed order allows “the 25 producing party [to] designate [a] document as Confidential 26 Information.” 27 Paragraph 13 of that order includes a process for objecting to the 28 “Confidential Information” designation. Resp.’s Prop. Order (Doc. 108-1) at 3:17-18, ¶ 3. -8- Basically, that paragraph 1 allows for written objections if a party wishes to challenge the 2 “Confidential Information” designation. 3 cannot resolve the issue, after the mandatory “filing] [of] 4 simultaneous briefs, not to exceed two pages[,]” the court will 5 decide the confidentiality issue. 6 And, if the parties See id. at 7:18, ¶ 13. Bashas’ proposed resolution regarding the designation of 7 “Confidential Information” and objections thereto differs from what 8 its proposed order actually states in one significant way. Bashas’ 9 proposed resolution requires the parties to “confer in good faith 10 in an attempt to resolve the matter” of confidentiality 11 designations, Summary (Doc. 108-2) at 2, but its proposed order 12 omits that language. The court will import that good faith 13 requirement into paragraph 13 of the confidentiality order adopted 14 herein. 15 Another significant issue pertains to the scope of disclosure 16 of confidential information. The EEOC’s proposed order does not 17 limit to whom it may disclose confidential information. The EEOC’s 18 order does not even require that a witness or expert agree not to 19 disclose confidential information. 20 Bashas’ proposed order, on the other hand, specifically states 21 that “[n]o party shall disclose the content of any document marked 22 ‘confidential,’ except to: attorneys, testifying witnesses (and 23 only upon an agreement to keep it confidential), court reporters, 24 the court, the parties, and testifying experts.” 25 108-2) at 2, (citation omitted). Summary (Doc. “Other than [those] categories 26 . . . , [the] EEOC cannot disclose confidential information to 27 anyone, including aggrieved persons, unless it obtains written 28 permission from Bashas’.” Id. To address the EEOC’s “concerns -9- 1 about being able to release the file or portions thereto to 2 ‘aggrieved parties[,]’” Bashas’ proposed order contains some 3 further limitations on disclosure of confidential information to 4 “aggrieved persons.”9 Resp.’s Filing (Doc. 108) at 2:8-9. 5 limitations are set forth in full below at paragraph 4(g). Those The 6 EEOC did not object or in any way indicate its disagreement with 7 that paragraph. Accordingly, the confidentiality order herein will 8 include that paragraph. 9 One other paragraph in Bashas’ proposed order warrants 10 specific consideration – requests to the EEOC for documents which 11 Bashas’ has identified as confidential under FOIA. After closely 12 examining paragraph nine, pertaining to that issue, the court will 13 adopt the following modified version of that paragraph:10 14 If upon completion of the EEOC’s investigation and prior to the completion of any subsequent litigation, it the EEOC receives a request for documents identified by Bashas’ as Confidential pursuant to the Freedom of Information Act (“FOIA”), the EEOC agrees shall to provide Bashas’ with notice of such request so that Bashas’ has an opportunity to object to its disclosure under one of the exemptions to the Act. The EEOC shall provide Bashas’ with such notice (through its counsel), including the wording of the request and the identity of the person making the request, within five (5) business days of a FOIA request. Simultaneously therewith the EEOC shall notify the requester that notice and opportunity to comment are being provided to Bashas’. Bashas’ shall respond to the EEOC’s notice within five (5) business days, providing the EEOC with a detailed statement of its objections to disclosure. The EEOC shall consider carefully any such objections submitted by Bashas’. If the EEOC determines that FOIA requires it to disclose the Confidential Information despite Bashas’ objection(s), it shall promptly notify Bashas’ and the 15 16 17 18 19 20 21 22 23 24 25 26 27 9 Consistent with Title VII and its proposed order, presumably Bashas’ means “aggrieved persons,” as distinguished from “aggrieved parties.” 10 28 The court is striking all language with a line through it. Underlining denotes added language. - 10 - 1 2 3 4 5 6 requester of such decision and. The EEOC shall not respond to any such FOIA request until Bashas’ has the opportunity to assert its objection(s)and seek a protective order from the this Ffederal District Court to the extent allowed by law,. Bashas’ shall assert such objection(s), if any, and seek a protective order, if any, within a time period of at least fourteen (14) days after such notification is actually received by Bashas’. Resp.’s Prop. Ord. (Doc. 108-1) at 6:9-26, ¶ 9 (as modified). 7 For the reasons just discussed, after considering the 8 parties’ respective proposed confidentiality orders (Docs. 107-1 9 and 108-1,p. 2-10), the court hereby ORDERS the entry of a 10 Confidentiality Order, which is being separately filed 11 simultaneously herewith. 12 DATED this 8th day of December, 2011. 13 14 15 16 17 18 19 20 21 Copies to counsel of record 22 23 24 25 26 27 28 - 11 -

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