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Equal Employment Opportunity Commission v. City of Long Branch

United States Court of Appeals, Third Circuit

August 2, 2017


          Submitted under Third Circuit L.A.R. 34.1(a) November 15, 2016

         On 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

          Jeremy D. Horowitz U.S. Equal Employment Opportunity Commission Office of General Counsel Counsel for Appellant

          Emery J. Mishky, Margolis Edelstein Counsel for Appellee

          Before: AMBRO, CHAGARES, and FUENTES, Circuit Judges.


          CHAGARES, Circuit Judge.

         The 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.

         The 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 remand.


         On or 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 agreement.

          The 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.

App. 72.

         Section 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 ...

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