The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
MEMORANDUM DECISION MOTION FOR RECONSIDERATION OF MAGISTRATE JUDGE'S ORDER (Doc.38.)
This matter is before the Court on Respondent Z Foods, Inc.'s motion for reconsideration of the Magistrate Judge's October 28, 2010 Order enforcing a subpoena in an investigative context. The Order found that Respondent and its counsel impeded the EEOC's investigation into sexual harassment at Z Foods; required Respondent and its counsel not to interfere with the EEOC's investigation into alleged misconduct at Z Foods; ruled that Zoria personnel and legal counsel were not to attend the deposition of Francisco Guerra, a supervisor at Z Foods; and Mr. Guerra was to complete his subpoenaed testimony at the EEOC's Fresno offices.
The procedural and factual background are summarized in the Magistrate Judge's previous Memorandum Decisions in this case, filed on February 25 and October 28, 2010, in brief: The Equal Employment Opportunity Commission ("EEOC") filed an application for an order to show cause why subpoena should not be enforced on December 7, 2009. (Doc. 1.) The EEOC's motion was limited to the enforcement of a subpoena in an administrative matter.*fn1 As of February 22, 2011, no complaint has been filed.
The dispute arises out of the EEOC's investigation into an alleged pattern and practice of harassment against a class of women at Z Foods. The EEOC claims it received fourteen charges of discrimination generally against Z Foods from January 26, 2008 to April 22, 2009. The EEOC charges allegedly share a common theme of preferential treatment toward younger women, "quid pro quo" sexual harassment and sexual misconduct (assault). As a result of these allegations, the EEOC conducted an on-site investigation and interviewed Francisco Guerra, an alleged sexual harasser and supervisor at Z Foods.
The EEOC first interviewed Mr. Guerra, represented by counsel, on September 2, 2009. According to the EEOC, Mr. Guerra's counsel, Mr. Sagaser, did not allow Mr. Guerra to answer questions concerning subject matter/individuals not specifically enumerated in the EEOC charges. Other questions were not answered on the basis of Mr. Guerra's "privacy rights." Melissa Barrios, Director of the EEOC's Fresno office, summarizes the September 2, 2009 interview - and the conflict between the EEOC counsel and Mr. Sagaser - as follows:
On approximately the first 1:30 day pm of on Guerra's 2, interview, at Mr. 2009, aboutSeptember MariaMarquez, Guerra's interactions Federal Investigator at and off and I inquired Mr.a Charging Party. As there are of the work site with and practice of harassment against allegations a classof a pattern however, Guerra's interactions we continued various efforts to of women, Elizabeth Ceballos with an employee by ask about regarding women. and efforts to of other made explore the name Howard However, Respondent's Attorney this Sagasar not allow immediately questions ended regarding my inquiry stating thathe wouldnot inquiries named were in any charge. female employees too broad and privacy. the witness' suchHe invaded added that any EEOC he is to allegations ofDuring harassment, the interview, Guerra declared as a defensethe is aware that his wife that also married. Because investigation, may have information asked relevant to works claims for andrefused wife's the ZoriaI privacy. him for underGuerra We his at name. Guerra assertingno time discussed to ask their marital outside of work or in the the day, work we attempted ask intimacy. Further near site where to Mr. Guerra after Without employees are about a store work. my questioning or known to gather informed me with that he has never prompting, Guerra relationship had any of a attempted and his wife's about private life had romanticquickly we not asked anything the about market. Curiously, employee Sagasar he further seeking on this that. asserting impeded In said store, that would be questions issue to however, a female that a protective order. Guerra, the EEOC as a prior has is Zoria employee, working been under reportedthe store. Given the allegations a current of sexual employee of saidbelieved to beinquire charges in about of discrimination, employee Guerra's interactions the EEOC harassment wishes toSagasar has and other female employees. said female any withUnfortunately, to thiscentral information from an alleged harasser. refused to allow the EEOC access(Doc. 17 at ¶ 3.)
Mr. Guerra's interview continued on September 3, 2009.*fn2
According to the EEOC, Mr. Sagaser again instructed Mr. Guerra to invoke his privacy rights and refuse to answer questions concerning his alleged relationships with current or female employees at Z Foods. After two hours of questioning, the EEOC ended the interview because "Guerra [was not allowed] to answer centrally needed information about Guerra's interaction with female employees beyond one Charging Party." (Id. at ¶ 3.)
At the conclusion of the September 3, 2009 interview, the EEOC served a subpoena on Mr. Guerra seeking, inter alia, information related to Mr. Guerra's sexual conduct/activity with current or former employees at Z Foods. The subpoena required his attendance at the EEOC's office in Fresno on September 11, 2009.
In the interim the parties exchanged correspondence concerning the validity of Mr. Sagaser's objections and the scope of the EEOC's investigatory powers. By September 9, 2009 letter, the EEOC stated that it "categorically disagreed" with Mr. Sagaser's position that Mr. Guerra is not required to "answer questions related to whether he has engaged in sexual conduct with employees, regardless of whether the conduct occurred on the premises of the worksite, or later away from the worksite." Based on the costs associated with the September 11, 2009 interview, the EEOC requested that Mr. Sagaser "verify whether you will permit the EEOC to continue this area of inquiry, and whether you will permit the your client to answer the questions without instructions from you to the contrary." The EEOC also expressed concern about possible witness intimidation by Z Foods employees.
On September 10, 2009, Mr. Sagaser responded that the EEOC has "broad investigatory powers [but] those powers are not unlimited." According to Mr. Sagaser, questions concerning Mr. Guerra's possible sexual encounter with a grocery store employee were "outside the bounds of a proper investigation." He then requested an advance copy of interview questions because, absent an advance review, it is "impossible  to determine whether  the questions are appropriate or invade the individual's right to privacy, including his or her sexual history or involve privileged communication."
The EEOC cancelled the interview on September 10, 2009. The EEOC claimed that it was "well within its authority to ask Mr. Guerra and others questions regarding sexual conduct, on or off premises, that affects current or former employees, particularly due to the serious nature of the allegations." According to the EEOC, it was "unable to complete Mr. Guerra's interview due, in part, to [Mr. Sagaser's] continued objections keeping [Mr. Guerra] from answering questions" relevant to its investigation of sexual harassment at Z Foods. The EEOC declined to produce the requested interview questions and referred the subpoena to its legal division.
On December 7, 2009, the EEOC sought enforcement of the subpoena by the District Court. The EEOC's opening brief explains the basis and grounds for judicial enforcement of the subpoena: The the subpoena agency's was authority properly issued. complies requirements from for such subpoenas. and The with issued subpoena procedural It was within sought information potential a person accused of his witness of discrimination and harassment, is a procedures management regarding position, with Zoria's is policies familiar, employment and in Such information is to assess discrimination. complainants' necessary validity discrimination the of the well as the viability employment liability. of Respondent's arguments allegations against as Respondent revoke waiving failed any to objections file an administrative of petition to that are not based on constitutional privacy or otherwise Title VII confidentiality safeguards adequately grounds. Further, privacy preemption interests. of state Further, law, federal because courts of federal protect consistently confidentiality ruled rights that any not alleged California have declining do a based subpoena under Title VII [...] to comply with the provide EEOC's investigative basis for EEOC's clear Despite subpoena, the Zoria's authority counsel impeded to carry out the ability to interview Guerra the EEOC's similarly interfere with Respondent Mr.other witness and is expected to threaten account intimidate of providing interviews their and complete any them against the the conduct allegations that investigating. shed may light on presence that EEOC is ability His the will hamper the EEOC's Guerra against of discrimination against Zoria, to investigate Mr. charges encourage EEOC and will investigation with EEOC's discrimination. This interference or complaining is about hindering employment chill cooperating the the EEOC's other witnesses from voluntarily with cooperating discrimination ability to the against investigate Respondent fourteen Zoria. (14) charges of The conduct of Respondent willing witnesses Zoria's counsel makes it clear that Respondent not be that even EEOC fear Zoria might to speak perceive with their the for will able In fact, witness interviews is suspect. at the communications presence of as any violating Respondent privacy Zoria concerns. representatives (Doc. 3 at 3:21-4:23.)
Z Foods opposed the order to show cause on February 2, 2010, arguing that the EEOC failed to demonstrate a proper basis for enforcement.
The EEOC's application was granted in part and denied in part on February 25, 2010. The Magistrate Judge determined that Respondent and its counsel impeded the EEOC's investigation into sexual harassment at Z Foods; required Respondent and its counsel not to interfere with the EEOC's investigation into alleged misconduct at Z Foods; ordered Mr. Guerra to complete his subpoenaed testimony at the EEOC's Fresno offices; and barred Z Foods personnel ...