Submitted under Third Circuit L.A.R. 34.1(a) November 15,
Appeal from the United States District Court for the District
of New Jersey (D. N.J. No. 3-15-cv-01081) District Judge:
Honorable Michael A. Shipp
D. Horowitz U.S. Equal Employment Opportunity Commission
Office of General Counsel Counsel for Appellant
J. Mishky, Margolis Edelstein Counsel for Appellee
Before: AMBRO, CHAGARES, and FUENTES, Circuit Judges.
CHAGARES, Circuit Judge.
Equal Employment Opportunity Commission ("EEOC")
filed a subpoena enforcement action against the City of Long
Branch in furtherance of its efforts to obtain documents
pertaining to a charge of discrimination. A Magistrate Judge
issued an order to enforce the subpoena, in part, and the
EEOC appealed the order to the District Court. The District
Court affirmed the Magistrate Judge's order. Before us is
the EEOC's appeal from the District Court's order.
EEOC raises two substantive issues on appeal, the first
regarding the exhaustion of administrative remedies and the
second regarding the disclosure to the charging party of
other employees' disciplinary and related records.
However, our review of the record reveals a significant
procedural defect pertaining to the treatment of the motion
to enforce under the Federal Magistrates Act. This error, in
light of the facts of this case, precludes us from reaching
the merits of the EEOC's arguments. For the reasons that
follow, we will vacate the order of the District Court and
about February 7, 2013, Lieutenant Lyndon Johnson ("Lt.
Johnson") of the Long Branch Police Department filed a
charge of discrimination with the EEOC against the City of
Long Branch ("Long Branch"). Lt. Johnson is an
African-American man. He charged that his employer
discriminated against him on the basis of race, in violation
of Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e, et seq. ("Title VII"), by
subjecting him "to different and harsher disciplinary
measures than similarly situated white colleagues who
committed the same or similar . . . infractions."
Appendix ("App.") 32. On August 19, 2013, the EEOC
served Long Branch with a notice to charge. On December 30,
2013, the EEOC requested "all disciplinary records"
for Lt. Johnson and six Caucasian comparator officers. App.
19, 33. Long Branch responded by letter to the EEOC that it
was preparing the requested materials but that it would not
produce the materials unless the EEOC executed a
confidentiality agreement wherein it would agree to not
reveal "confidential" materials, including the
personnel files of the comparators, to anyone, including Lt.
Johnson. App. 54. The EEOC refused to execute such an
EEOC served a subpoena on Long Branch by email and certified
mail on July 23, 2014. The subpoena requested "a copy of
any and all documents which refer to or address the
disciplinary records" for Lt. Johnson and the six
comparators. App. 63. Long Branch, in response, sent the EEOC
a document titled "Notice of Motion to Quash
Subpoena." App. 68. The document had a caption for the
Superior Court of New Jersey Department of Law and Public
Safety Division on Civil Rights. The EEOC received this
document on August 7, 2014. The notice reiterated Long
Branch's position that it would not disclose the
requested documents without an executed confidentiality
agreement. The document reads, in part:
7. The subpoena seeks confidential disciplinary records of
various Officers, who have no involvement in the
claimant's matter, and this is contrary to the Policy and
Procedures of Internal Affairs which has strict requirements
for release of such records.
8. As previously stated, the respondent is not in privy to
disclose the subpoenaed records unless EEOC meets the
criteria as set-forth in the Policy and Procedures, or in the
alternative, guarantee[s] Confidential[ity] of these records.
9. Accordingly, the respondent object[s] to the subpoena of
these disciplinary records and seek[s] to quash the subpoena.
1601.16(b) of Title 29 of the Code of Federal Regulations
requires that a person or entity intending not to comply with
an EEOC subpoena submit a petition to modify or revoke the
subpoena to the EEOC's Director or General Counsel within
five days after ...