Giezie v. Valley Health Systems, LLC, No. 2:2012cv00036 - Document 30 (D. Nev. 2012)
Court Description: ORDER Granting in part and Denying in part 19 Motion to Quash. IT IS FURTHER ORDERED that the EEOC shall produce, in response to the subpoena previously served by Defendant, its investigative file regarding Mr. Giezies charges of discrimination and retaliation by Defendant, except for those documents to which the EEOC asserts privilege. Signed by Magistrate Judge George Foley, Jr on 09/07/2012. (Copies have been distributed pursuant to the NEF - AC)
Download PDF
<![CDATA[
Giezie v. Valley Health Systems, LLC Doc. 30 1 2 3 4 5 UNITED STATES DISTRICT COURT 6 DISTRICT OF NEVADA 7 8 9 10 11 12 13 14 ROBERT C. GIEZIE, ) ) Plaintiff, ) ) vs. ) ) VALLEY HEALTH SYSTEM, LLC, dba ) Sprint Valley Hospital, ) ) Defendant. ) __________________________________________) Case No. 2:12-cv-00036-ECR-GWF ORDER Emergency Motion to Quash Subpoena; and for Protective Order - #19 This matter is before the Court on Non-Party U.S. Equal Employment Opportunity 15 Commission’s (EEOC) Emergency Motion to Quash Subpoena; and for Protective Order (#19), 16 filed on August 14, 2012; Defendant’s Opposition to Non-Party EEOC’s Emergency Motion to 17 Quash Subpoena (#23), filed on August 20, 2012; and Non-Party EEOC’s Reply to Defendant’s 18 Opposition to Emergency Motion to Quash Subpoena (#27), filed on August 23, 2012. The Court 19 conducted a hearing in this matter on August 24, 2012. 20 21 BACKGROUND The EEOC moves to quash a subpoena requiring EEOC Investigator Mario Banos 22 Melendez to appear for a deposition noticed by the Defendant. The subpoena also requires the 23 deponent to produce “[t]he entire original EEOC file concerning Robert C. Giezie, EEOC Charge 24 No. 487-2009-01062.” Motion to Quash (#19), Exhibit A.1 25 Plaintiff Robert Giezie alleges in his complaint that he was employed as a Patient 26 Transporter at Defendant’s Spring Valley Hospital from 2003 until he was laid off in June 2010. 27 28 1 The Court stayed the taking of the deposition pending its ruling on the EEOC’s motion to quash and for a protective order. Dockets.Justia.com 1 Plaintiff alleges that he was subjected to age discrimination and a hostile work environment after 2 Stacy Moser, Manager of Environmental Services and Transport, became his supervisor in 2007. 3 Plaintiff states that he complained to Ms. Moser and the Defendant’s Associate Administrator 4 about the discrimination, but nothing was done to remedy the situation. Plaintiff filed his first 5 formal EEOC charge of age discrimination on October 6, 2009. He alleges that the harassment 6 continued after he filed his charge. He alleges that he complained to the Defendant’s Human 7 Resources Administrator that he was being discriminated and retaliated against for having opposed 8 the discrimination and having filed an EEOC charge. Plaintiff cites a number of disciplinary 9 measures to which he was subjected, but which younger Patient Transporter employees were not 10 11 subjected even though they engaged in the same alleged violations of company rules. Plaintiff alleges that Defendant notified him on June 28, 2010 that his position was being 12 eliminated due to staff reductions and that he was being permanently laid off. Plaintiff alleges that 13 Patient Transporters, who were significantly younger than him and/or less than 40 years old, were 14 not laid off. Plaintiff states that Defendant used his disciplinary record, which itself resulted from 15 age discrimination and retaliation, as a basis for his termination. Plaintiff’s Complaint alleges 16 causes of action for discrimination and retaliation in violation of the Age Discrimination in 17 Employment Act (“ADEA”), 29 U.S.C. §623(d), and a state law cause of action for intentional 18 infliction of emotional distress. 19 The EEOC issued a Notice of Charge of Discrimination by Plaintiff against Defendant for 20 age discrimination on October 9, 2009. Defendant’s Opposition to Motion for Protective Order 21 (#23), Exhibit 2. A second Notice of Charge of Discrimination based on age discrimination and 22 retaliation was issued on July 26, 2010 approximately one month after Defendant’s employment 23 was terminated. Id., Exhibit 3. According to Defendant, the EEOC investigative file indicates that 24 the EEOC conducted an investigation of the discrimination charge after Plaintiff filed his initial 25 charge in October 2009. Defendant states, however, that it has not received any records indicating 26 that the EEOC conducted a further investigation after Plaintiff filed his amended charge of 27 discrimination and retaliation in July, 2010, following the termination of his employment. The 28 EEOC issued a Letter of Determination on August 16, 2011 which stated that: “The Commission 2 1 finds that there is reasonable cause to believe that Charging Party was disciplined and laid-of due to 2 his age, in violation of the statute.” Id., Exhibit 4. Defendant states that it is unclear whether this 3 determination includes a finding of retaliation. 4 Defendant’s decision to notice the deposition of Mr. Melendez initially arose from 5 Plaintiff’s April 9, 2012 supplemental Rule 26(a)(1) disclosure which listed Mr. Melendez as a 6 witness Plaintiff may call at trial. Opposition to Motion to Quash (#23), Exhibit 11. Defendant’s 7 counsel sent an email to Plaintiff’s counsel on July 25, 2012 in which she stated that she intended 8 to take Mr. Melendez’s deposition unless Plaintiff’s counsel stated that he would not be called to 9 testify at trial. Opposition (#23), Exhibit 14. Plaintiff’s counsel responded by stating that Mr. 10 Melendez “is a person with knowledge though it is my understanding the investigators may not be 11 permitted to testify. I don’t intend on calling him unless there is any dispute as to the EEOC’s 12 finding in [Plaintiff’s] case.” Id. Based on this response, Defendant’s counsel stated that she 13 would proceed with the deposition. Id. In a subsequent email communication to the EEOC’s 14 counsel on August 9, 2012, Plaintiff’s counsel stated that she told Defendant’s counsel that 15 Plaintiff’s counsel did not believe Mr. Melendez was permitted to testify and that Plaintiff does not 16 intend to call him as a witness at trial. Plaintiff’s counsel stated, however, that Plaintiff intends to 17 introduce the EEOC’s finding of probable cause and other documents provided in response to 18 Plaintiff’s FOIA request. Motion to Quash (#19), Exhibit D. 19 The EEOC argues that Defendant should be precluded from taking Mr. Melendez’s 20 deposition because his testimony is irrelevant and unduly burdensome on Mr. Melendez and the 21 EEOC. The EEOC also argues that Defendant may attempt to inquire into matters protected from 22 disclosure by the deliberative process privilege. The EEOC has submitted a declaration by Mr. 23 Melendez in which he states that he reviewed the subject investigative file on August 7, 2012 and 24 that he has “no recollection of the charge of discrimination that Mr. Giezie filed against Valley 25 Health System independent of the materials in the Investigative File.” Motion to Quash (#19), 26 Exhibit E. The EEOC has also submitted a declaration by Adriana Lopez, the Acting Local 27 Director of the EEOC Las Vegas Local Office, who states that the investigators in the EEOC’s Las 28 Vegas Local Office each investigate at least 100 charges of discrimination a year and also spend 3 1 one fourth of their time doing in-takes of new charges. Reply (#27), Exhibit 5. 2 In arguing that it is entitled to depose Mr. Melendez, Defendant states that Plaintiff testified 3 at his deposition that he and Mr. Melendez met five or more times and that their first meeting lasted 4 for more than two hours. Plaintiff also testified that during his initial meeting with the investigator, 5 he told Mr. Melendez “about age-related remarks Plaintiff claims his former supervisor, Stacy 6 Moser made to him. Opposition (#23), pg. 2, Exhibit 5, Plaintiff’s Deposition. Defendant points 7 out, however, that EEOC’s investigative file contains notes regarding only one conversation 8 between Plaintiff and Mr. Melendez, and those notes do not make reference to any age-related 9 remarks by Ms. Moser. Id., pg. 2, Exhibit 6. Defendant states that the variance between Plaintiff’s 10 deposition testimony and Mr. Melendez’s interview notes is significant given the representations 11 made by the EEOC regarding Mr. Melendez’s interview and note taking practices. In that regard, 12 the EEOC has submitted a declaration by EEOC counsel Elizabeth Naccarato who states that Mr. 13 Melendez told her that it is his regular practice to take notes of any interviews he conducts in the 14 course of investigating a charge of discrimination and to retain any such notes in the investigative 15 file. Mr. Melendez also stated that it is his practice to document verbal communications with the 16 parties in the investigation file and that he followed these practices in regard to Mr. Giezie’s 17 charge. Motion to Quash (#19), Exhibit B, Declaration of Elizabeth Naccarato. 18 Plaintiff also testified at his deposition that Mr. Melendez told him that once Defendant was 19 notified of Plaintiff’s charge, the “Defendant would ‘find a way’ to get rid of Plaintiff and that after 20 Defendant fired him, EEOC would ‘handle retaliation.’” Opposition (#23), pg. 2, Exhibit 5, 21 Plaintiff’s Deposition. “Plaintiff also quoted Mr. Melendez as stating ‘Chances are once you file 22 this [discrimination charge] and everything that your time there [being employed by Defendant] is 23 limited.’” Id. Defendant argues that the only way Defendant can explore whether Mr. Melendez 24 made such statements is by taking his deposition. Id., pg. 3. 25 Defendant also points out that the EEOC investigative file indicates that Mr. Melendez 26 pursued interviews of Plaintiff’s former supervisor Stacy Moser and Defendant’s employees Leslie 27 Irwin and Jill Rathe. Defendant, however, has not been provided with any investigative file notes 28 regarding Mr. Melendez’s interviews of these individuals. Defendant apparently received a copy of 4 1 the EEOC investigative file that Plaintiff’s counsel obtained through a Freedom of Information Act 2 (FOIA) request. The EEOC states that the investigative file does, in fact, contain notes of 3 Investigator Melendez’s interviews with Stacy Moser, Leslie Irwin and Jill Rathie. Those notes 4 were attached to an investigative memorandum that was withheld by the EEOC pursuant to FOIA 5 exemptions. The EEOC states that it is willing to produce these interview notes to the parties in an 6 authenticated copy of the investigative file. Reply (#27), pg. 7. 7 Defendant argues that other interview notes in the investigative file are ambiguous, unclear 8 and confusing. A “Memo to File” by Investigator Melendez, dated November 23, 2010, states that 9 it is in regard to a “Telephone conversation with John Paul Gleydura, Patient Transporter.” The 10 body of the Memo then states: “This Investigator spoke to Sandra Connette, who informed him of 11 the following but not verbatim; ... .” Opposition (#23), Exhibit 9. Another “Memo to File” by 12 Investigator Melendez, dated March 10, 2011, states that it is in regard to a “telephone interview 13 with Dr. Joel Orevillo.” The body of the Memo then states: “This Investigator spoke to Michael 14 Short on March 31, 2011, who informed him of the following but not verbatim: ... .” Id., Exhibit 15 10. Defendant states that it has no knowledge of Sandra Connette or Michael Short. Opposition 16 (#23), pg. 3. Defendant, however, apparently has knowledge of John Paul Gleydura and Dr. Joel 17 Orevillo. The EEOC states that Investigator Melendez may have created a typo in these notes by 18 using a template Memo to File which left the names Sandra Connette and Michael Short in the 19 body of the memos. The EEOC states that the confusion in these notes can probably be explained 20 by the EEOC answering written questions that seek clarification of the notes. Reply (#27), pg. 8.2 21 Defendant also argues that it should be permitted to depose Investigator Melendez in order 22 to clarify the EEOC’s August 16, 2011 Letter of Determination stating that it found “reasonable 23 cause to believe that Charging Party was disciplined and laid-off due to his age, in violation of the 24 statute.” Defendant states that Plaintiff, along with 21 other employees, was laid off from their 25 employment in June 2010 due to a reduction in force. Plaintiff then filed an amended charge of age 26 27 28 2 The inaccurate use of templates apparently continues. The declaration of Mr. Melendez attached to the EEOC’s motion to quash is actually entitled “DECLARATION OF BEN LUU.” Motion to Quash (#19), Exhibit E. 5 1 discrimination and retaliation on or about July 26, 2010. Defendant states, however, that the 2 investigative file provided to it does not indicate whether the EEOC conducted an investigation 3 regarding Plaintiff’s charge that the Defendant terminated him in retaliation for complaining of 4 discrimination. 5 6 DISCUSSION Rule 26(c) of the Federal Rules of Civil Procedure authorizes the court for good cause to 7 issue a protective order to protect a party or person from annoyance, embarrassment, oppression, or 8 undue burden or expense. The party seeking a protective order has burden of persuasion. U.S. 9 Equal Employment Opportunity Comm’n v. Caesars Entertainment, Inc., 237 F.R.D. 428 (D.Nev. 10 2006), citing Cipollone v. Liggett Group, Inc., 785 F.2d 1108, 1121 (3d Cir. 1986). In order to 11 meet that burden, the movant must demonstrate a particular need for the protection sought. The 12 rule requires more than “broad allegations of harm, unsubstantiated by specific examples or 13 articulated reasoning.” Id. The party seeking the order must point to specific facts that support the 14 request, “as opposed to conclusory or speculative statements about the need for a protective order 15 and the harm which will be suffered without one.” Id. A mere showing of some inconvenience or 16 expense does not suffice to establish good cause under Rule 26(c). Id., citing Turner Broadcasting 17 System, Inc. v. Tracinda Corporation, 175 F.R.D. 554, 556 (D.Nev. 1997). 18 The moving party also has the burden of persuasion on a motion to quash a subpoena 19 brought pursuant to Fed.R.Civ.Pro. 45(c)(3). West Bay One, Inc. v. Does 1-1,653, 270 F.R.D. 13, 20 15 (D.D.C. 2010); McAfee v. Boczar, 2012 WL 2499420, *2 (E.D.Va. 2012); S.E.C. v. Art Intellect, 21 Inc., 2012 WL 776244, *2 (D.Utah 2012). The non-party status of the movant is a factor to be 22 considered in determining whether the burden imposed by a subpoena is undue. Realtime Data, 23 LLC v. MetroPCS Texas, LLC, 2012 WL 105080, *2 (S.D.Cal. 2012); Whitlow v. Martin, 263 24 F.R.D. 507, 512 (C.D.Ill. 2009). 25 Pursuant to its statutory duties, the EEOC conducted an investigation of Plaintiff’s charges 26 and issued its Letter of Determination finding “that there is reasonable cause to believe that 27 Charging Party was disciplined and laid-off due to his age, in violation of the statute.” The 28 EEOC’s reasonable cause determination is admissible as evidence of discrimination or retaliation, 6 1 although it is not binding on the trier of fact. Plummer v. Wester International Hotels, Co., 656 2 F.2d 502, 505 (9th Cir. 1981); Heyne v. Caruso, 69 F.3d 1475, 1482-83 (9th Cir. 1995). In so 3 holding, the court in Plummer stated: “An EEOC determination, prepared by professional 4 investigators on behalf of an impartial agency, has been held to be a highly probative evaluation of 5 an individual’s discrimination complaint.” Id. The court further stated: “A civil rights plaintiff has 6 a difficult burden of proof and should not be deprived of what may be persuasive evidence.” Id. In 7 a footnote to this statement, however, the court also stated: “The defendant, of course, is free to 8 present evidence refuting the findings of the EEOC and may point out deficiencies in the EEOC 9 determination on remand. Such evidence would go to the weight to be given by the trier of fact to 10 11 the EEOC determination.” (citation omitted). Plummer, 656 F.2d at 505, n. 9. In Gilchrist v. Jim Slemons Imports, Inc., 803 F.2d 1488, 1500 (9th Cir. 1986), the court 12 distinguished the automatic admissibility of an EEOC reasonable cause determination letter from a 13 letter of violation, which the district court has the discretion to exclude pursuant to Fed.R.Evid. 14 403, as follows: 15 16 17 18 19 20 21 A finding of probable cause does not suggest to the jury that the EEOC has already determined that there has been a violation. Rather, it suggests that preliminarily there is reason to believe that a violation has taken place. We have held that the potential prejudicial impact of such a suggestion does not outweigh the highly probative nature of the probable cause determination. See Plummer, 656 F.2d at 504-05. A letter of violation, however, represents a determination by the EEOC that a violation of the Act has occurred and thus results in a much greater possibility of unfair prejudice. A jury may find it difficult to evaluate independently evidence of age discrimination after being informed that the EEOC has already examined the evidence and found a violation. The probative value of a letter of violation may not, in every case, outweigh the potential for prejudice. 22 Both parties have submitted court decisions in support of their respective positions as to 23 whether the testimony of EEOC Investigator Melendez is relevant. The EEOC relies on Leyh v. 24 Modicon, Inc., 881 F.Supp. 420, 424-6 (S.D.Ind. 1995). The plaintiff in that case sought to depose 25 the EEOC investigator about his recollection of facts he turned up during his investigation of 26 plaintiff’s complaint. (The decision does not indicate whether the EEOC made a probable cause 27 finding of discrimination.) In granting the EEOC’s motion to quash and for protective order, the 28 court stated that testimony by the investigator about the results of his investigation would not, as a 7 1 general rule, be admissible in a trial of the underlying facts. The court recognized that the 2 investigator might be able to testify about admissions made by the defendant’s representatives 3 during the investigation. The court found, however, that this possibility was insufficient to warrant 4 the taking of his deposition. The court stated: 5 6 7 8 Despite the generally permissive approach to discovery in the federal courts, the court does not believe that parties to an employment discrimination case should be able to depose EEOC investigators as a matter of course. Such depositions should not become a routine method to find a short-cut to evidence or to being given pre-packaged cases. It is beyond the scope of this case to catalog the exceptional circumstances that might warrant such discovery, but there are no such exceptional circumstances here. 9 10 Leyh, 881 F.Supp. at 425. 11 In a footnote, the court distinguished Allen v. Hearst Corp., 1991 WL 323020 (D.Md. 12 1991), in which the parties were permitted to depose the EEOC investigator. The Leyh court noted 13 that the EEOC was a party in Allen and that the private plaintiff in that case intended to introduce 14 the EEOC’s finding of probable cause at trial. Id. 881 F.Supp. at 425, n. 3. In addition to holding 15 that the EEOC investigator’s testimony was irrelevant, the Leyh court also stated that his testimony 16 about the EEOC’s decisions and deliberations concerning its investigation would be protected from 17 disclosure by the deliberative process privilege. Id. at 425. 18 The Defendant relies on Little v. Auburn University, 2010 U.S. Dist. LEXIS 13491, 2010 19 WL 582083 (M.D.Ala. 2010). Little involved a discrimination action brought by a private plaintiff. 20 The EEOC was not a party to the action. The defendant sought to depose the EEOC’s principal 21 investigator on the grounds that the investigation documents did not indicate the basis for the 22 investigator’s “for cause” determination. The defendant also argued that some of the investigator’s 23 notes were illegible. The defendant stated that the EEOC’s deliberative process privilege was not 24 relevant because the deposition was limited to the factual investigation and “does not offend the 25 privilege.” 2010 WL 582083, at *1. In denying the EEOC’s motion to quash and for protective 26 order, the court stated: 27 28 In this case, many of the questions the defendant wants to pose are related to clarifying factual information contained in the EEOC's investigative file and would not be covered under the deliberative 8 1 2 3 4 5 6 7 8 9 10 11 12 process privilege. The information Auburn is seeking is similarly not cumulative because the questions relate to ambiguous references in the investigative file. For example, during oral argument, defense counsel indicated that some of the handwritten notations in the file are illegible. The court recognizes that the court's review of this lawsuit is de novo and the EEOC's investigation is not subject to court review. Nonetheless, the fact that the EEOC has turned over its complete administrative file does not relieve the Agency of its obligation under Fed.R.Civ.P. 30(b)(6) to provide a witness to answer questions about the documents for purposes of clarification and interpretation. See EEOC v. California Psychiatric Transitions, 258 F.R.D. 391, 396 (E.D.Ca.2009) (citing EEOC v. LifeCare Mgmt. Servs., LLC, 2009 WL 772834 at *2 (W.D.Pa.2009)). In this case, Auburn should be allowed to clarify ambiguities related to the factual aspects of the material. However, any conclusions, interpretations, or recommendations that the investigator formulated would be subject to the privilege. Thus, any impressions of witnesses, including credibility determinations, are subject to the privilege. The EEOC is free to assert proper privilege objections, where appropriate, in the manner contemplated by Fed.R.Civ.P. 30(c)(2) during the deposition. See Turner, supra. The recent decision in Arizona ex rel. Goddard v. Frito-Lay, Inc. (“Goddard”), 273 F.R.D. 13 545 (D.Ariz. 2011) is more expansive in regard to the permissible scope of a deposition of an 14 agency’s investigator than is Little v. Auburn University. In Goddard, the Arizona Civil Rights 15 Division (ACRD) investigated charges of discrimination made by Reyes against Frito-Lay. Upon 16 the completion of its investigation, the ACRD issued a reasonable cause determination that Reyes 17 had been subjected to a hostile work environment and had been discriminated against based on her 18 sex and race in violation of the Arizona Civil Rights Act. The ACRD brought suit against the 19 defendant for violation of the Arizona Act. Reyes intervened in the case as a plaintiff and alleged 20 claims for hostile work environment and sex and race discrimination under Title VII, 42 U.S.C. 21 §2000e et seq. Both the ACRD and Reyes reserved the right to introduce the ACRD’s reasonable 22 cause determination at trial. The ACRD reserved the right to introduce the document only to 23 establish the jurisdictional prerequisites for bringing suit. Reyes, however, reserved right to 24 introduce the reasonable cause determination to prove discrimination by the defendant. 25 26 27 28 In holding that the defendant was entitled to take the deposition of the ACRD investigator, Goddard stated as follows: As Plummer explicitly states, however, when a reasonable cause determination is admitted into evidence, a defendant is “free to present evidence refuting the findings of the EEOC and may point 9 1 2 3 4 5 6 7 8 9 10 11 12 13 out deficiencies in the EEOC determination.” 656 F.2d at 505 n. 9. Such a conclusion only makes sense. Introducing the reasonable cause determination itself puts its validity at issue, and not merely the validity of the facts on which it is based. Thus, the accuracy, adequacy and reasonableness of the investigation on which the determination is based, as well as the reasonableness of the evaluation of the investigation and the resulting conclusions leading to the determination are all relevant topics of inquiry. Defendants must then be allowed to conduct discovery to obtain “evidence refuting the findings” of the ACRD and to “point out deficiencies” in its determination. In its Motion for Protective Order the ACRD cites a Sixth Circuit case, EEOC v. KECO Indus. Inc., 748 F.2d 1097, 1100 (6th Cir.1984), for the proposition that the adequacy of the ACRD's reasonable cause determination is not relevant. Nevertheless, KECO is readily distinguishable. KECO did not involve a case in which the EEOC attempted to introduce its reasonable cause determination for purposes of establishing KECO's liability. When the reasonable cause determination is not at issue, discovery into its adequacy is not relevant in most cases. In light of Plummer and Heyne, however, and the fact that in this case Plaintiffs reserve the right to place before the jury the conclusions contained in the reasonable cause determination, the adequacy of ACRD's reasonable cause determination is a relevant question on which discovery is appropriate. 14 Goddard, 273 F.R.D. at 552. 15 The Goddard court declined to follow two other decisions in the Ninth Circuit, E.E.O.C. v. 16 Gold River Operating Corp. (“Gold River”), 2007 WL 983853 (D.Nev. March 30, 2007) and 17 E.E.O.C. v. Pinal County, 714 F.Supp.2d 1073 (S.D.Cal. 2010), that relied on EEOC v. KECO 18 Indus. Inc. in reportedly holding that discovery regarding the agency’s investigation is not relevant 19 even when the agency’s determination of probable cause is admissible. Id. at 552-3. 20 The decision in Gold River is not contrary to Goddard. Gold River involved a motion to 21 dismiss/summary judgment in which the defendant argued that the EEOC was barred from 22 pursuing the action because it failed to conduct an adequate investigation prior to bringing suit. 23 The EEOC contended that the condition precedent to bringing suit required only that it conduct 24 some investigation. It was not required to prove that it conducted an adequate investigation. The 25 court agreed, stating as follows: 26 27 28 The court need not address the various allegations of EEOC misconduct made by the defendants because an employer may not litigate the adequacy of the EEOC’s investigation and determination, see EEOC v. KECO Indus. Inc., 748 F.2d 1097, 1100 (6th Cir.1984), unless a plaintiff enters the EEOC’s letter of determination as 10 evidence in which case the defendant is free to point out deficiencies in its investigation. See Plummer v. Wester International Hotels, Co., 656 F.2d 502, 505 n. 9 (9th Cir. 1981). (Emphasis added). 1 2 In E.E.O.C. v. Pinal County, 714 F.Supp.2d 1073 (S.D.Cal. 2010), the court quashed a 3 4 subpoena issued by the defendant in an underlying action brought by a private plaintiff for racial 5 discrimination and retaliation. The defendant sought to take the deposition of the acting director of 6 the EEOC’s San Diego local office who executed the reasonable cause determination letters. In 7 distinguishing Little v. Auburn University and other cases such as E.E.O.C. v. California 8 Psychiatric Transitions, 258 F.R.D. 391 (E.D.Cal. 2009) and E.E.O.C. v. LifeCare Management 9 Services, LLC, 2009WL 772834 (W.D.Pa. 2009), the court noted that the defendant had not shown 10 that there were any factual ambiguities in the investigative file that defendant needed to explore in 11 deposition. The defendant instead sought the deposition of the acting director, who had not 12 investigated the plaintiff’s charge and had no knowledge of the investigation beyond the facts set 13 forth in the file. The purpose of the deposition was to seek clarification and interpretation of the 14 EEOC’s determination letter by inquiry into the EEOC’s evaluations and deliberations regarding 15 the charge. In holding that such an inquiry into qualifiedly privileged information was not 16 warranted, even though the reasonable cause determination is admissible in evidence, the court 17 stated: 18 19 20 21 22 23 24 Moreover, it is unlikely the trier of fact would spend much time deciphering the meaning of the determination letter. As the EEOC observes, the focus at trial will be on the merits of Millsaps' Title VII claims, not the meaning of the determination letter. The best way for Respondents to counter the probable cause finding of the EEOC is to simply present their defense against Millsaps' discrimination and retaliation claims, by way of testimony of percipient witnesses of the underlying events and the presentation of admissible documentary evidence. Furthermore, under Gilchrist, a finding of probable cause does not suggest to the trier of fact that the EEOC has already determined that there has been a violation, but rather that preliminarily, there is reason to believe that a violation has taken place. Gilchrist, 803 F.2d at 1500. As the EEOC suggests, Respondents can seek a limiting jury instruction to this effect. 25 26 E.E.O.C. v. Pinal County, 714 F.Supp.2d at 1079. 27 In this case, Defendant states that it intends to question Investigator Melendez about the 28 factual underpinnings of his investigation, including whether an investigation was conducted in 11 1 regard to Plaintiff’s allegation that the termination of his employment was retaliatory. Defendant 2 has also stated that the EEOC may properly assert objections to specific questions during the 3 deposition on the basis of the deliberative process privilege if a question reasonably appears to seek 4 privileged information. Opposition (#23), pg. 5, n. 1. Given that limitation, it is not necessary for 5 the Court to resolve the conflict between Goddard and Pinal County regarding whether discovery 6 into the investigating agency’s evaluations and deliberations should be permitted whenever a 7 private plaintiff intends to introduce the agency’s reasonable cause determination letter at trial. 8 Defendant has demonstrated sufficient grounds for further discovery into the factual 9 circumstances relating to the EEOC’s investigation of Mr. Giezie’s charges. This factual inquiry 10 includes, but is not necessarily limited to, the number and length of meetings between Mr. Giezie 11 and Investigator Melendez, and any statements that were either made about the facts or 12 circumstances of the charges. Defendant is also entitled to obtain clarification regarding the 13 discrepancies in the interview notes concerning the individuals who were actually interviewed and 14 what information was obtained from them. Defendant is also entitled to determine what 15 investigation Mr. Melendez conducted in regard to Plaintiff’s amended July 2010 charge of 16 retaliation. 17 Mr. Melendez and the EEOC assert that Mr. Melendez has no independent recollection of 18 the investigation. The Court, however, is not convinced of this based on Mr. Melendez’s 19 declaration that he has reviewed the investigation file and does not recall anything outside the file. 20 Mr. Melendez’s recollection about particular relevant matters may be refreshed by questions posed 21 to him during the deposition. He may also be able to provide relevant and useful information 22 relating to his custom or practice in conducting an investigation, such as whether he makes notes of 23 every interview conducted. Some of these matters could arguably be explored by having the EEOC 24 answer written questions, presumably pursuant to Fed.R.Civ.Pro. 31. This procedure, however, is 25 not likely to be either as efficient or less burdensome than the taking of Mr. Melendez’s deposition, 26 so long as the deposition is limited to factual matters (including customs and practices) relating to 27 his investigation and the deposition is limited to a reasonable duration. The Court believes that 28 Mr. Melendez’s deposition, including questioning by all counsel, should not exceed three hours. 12 1 2 CONCLUSION Based on the foregoing, the Court concludes that the EEOC has not met its burden to justify 3 an order precluding the Defendant from taking the deposition of EEOC investigator Mario Banos 4 Melendez. The Court does, however, limit the scope of the deposition to factual matters (including 5 customs and practices) relating to the EEOC investigation of Plaintiff’s charges of discrimination 6 and retaliation and the deposition shall be limited to a total of three (3) hours duration. Counsel for 7 the parties and the EEOC should confer on a reasonable date and time for conducting the 8 deposition. Accordingly, 9 IT IS HEREBY ORDERED that Non-Party U.S. Equal Employment Opportunity 10 Commission’s (EEOC) Emergency Motion to Quash Subpoena; and for Protective Order (#19) is 11 granted, in part, and denied, in part, in accordance with the foregoing provisions of this order. 12 IT IS FURTHER ORDERED that the EEOC shall produce, in response to the subpoena 13 previously served by Defendant, its investigative file regarding Mr. Giezie’s charges of 14 discrimination and retaliation by Defendant, except for those documents to which the EEOC asserts 15 privilege. The EEOC shall provide an appropriate privilege log and any other required 16 documentation necessary to invoke an asserted privilege(s). 17 DATED this 7th day of September, 2012. 18 19 20 ______________________________________ GEORGE FOLEY, JR. United States Magistrate Judge 21 22 23 24 25 26 27 28 13
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
