EEOC v. Agro Distr LLC

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
November 28, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
_____________________ Clerk
No. 06-60969
_____________________
In Re: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Petitioner
--------------------------
----------------------
Petition for Writ of Mandamus to the United States
District Court for the
Southern District of Mississippi, Hattiesburg
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Before DEMOSS, STEWART, and PRADO, Circuit Judges.
PER CURIAM:*
Before us is a petition for writ of mandamus filed by the
Equal Employment Opportunity Commission (“EEOC”) after the
district court ordered that an EEOC attorney be deposed and
certain internal documents be produced despite the EEOC’s
assertion of privilege. Because the deposition and documents are
privileged and no exception to privilege has been shown, we GRANT
the writ.
*
Pursuant to 5TH CIRCUIT RULE 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIRCUIT
RULE 47.5.4.
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I. FACTUAL AND PROCEDURAL BACKGROUND
This mandamus petition comes at the tail end of a lawsuit
brought by the EEOC against Agro Distribution, L.L.C. (“Agro”)
for alleged violations of the Americans with Disabilities Act
(“ADA”), 42 U.S.C. §§ 12101-213 (2000). To put the current
issues before this court in context, a brief review of the
underlying facts is necessary. As determined by the district
court in its summary judgment order, Henry Velez (“Velez”), an
employee of Agro, was born with a physical impairment that caused
the abnormal development of his skin and the absence of any sweat
glands. According to Velez, he experiences difficulties doing
manual labor when the temperature is greater than eighty degrees
Fahrenheit. To compensate for his condition in warm weather,
Velez takes frequent breaks, stands in front of a fan, and douses
himself with water.
On July 15, 2002, Velez and all the other non-office Agro
employees were ordered to report at 6:00 a.m. on July 16, 2002,
to load empty barrels onto a trailer.1 Velez told his supervisor
that this type of assignment had made him sick before and asked
to be excluded. His supervisor did not exclude him, and Velez
chose not to report for the job or at his regularly assigned
1
A “petite female” was excepted from this requirement.
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time. The barrel-loading job was completed by 8:00 a.m. at which
time the temperature had yet to exceed seventy degrees. Velez
was terminated as a result of his failure to report for work.
Velez filed a charge of discrimination with the EEOC, and
the charge was investigated by LaQuida Small (“Small”).
According to Agro, Small was rude during her visit to Agro,
yelling and making demeaning comments, and seemed to have already
made up her mind about Velez’s claim. Small issued a
predetermination notice, advising Agro of her intention to
recommend a cause finding, to which Agro responded by pointing
out several factual errors in Small’s notice. The EEOC then
issued its determination on July 22, 2003, finding that a
violation of the ADA had occurred. The determination letter
sought back pay, reinstatement, and compensatory damages in
excess of $156,000.
The EEOC filed the instant lawsuit on September 27, 2004,
claiming that Agro violated the ADA when it terminated Velez.
There is little evidence that the EEOC attempted meaningful
conciliation of the case prior to and during the litigation,
although the EEOC eventually withdrew its request for
reinstatement and back pay. Notably, Velez had obtained a higher
paying job that he liked better than his job with Agro.
Following substantial discovery, Agro moved for summary
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judgment, which the district court granted. In its order, the
district court noted that it “appear[ed] that the EEOC did not
attempt conciliation in good faith . . . .” (Mem. Op. & Order at
10.) However, the district court ultimately granted summary
judgment on the ground that Velez was not “disabled” as defined
by the ADA. The district court found that Velez had held
numerous jobs requiring manual labor, and thus was not
substantially limited in the major life activity of working.
(Id. at 14-15.)
Following the district court’s grant of summary judgment,
Agro moved for attorneys’ fees pursuant to 42 U.S.C. § 12205,
which gives the court discretion to award attorneys’ fees to the
prevailing party in an ADA case. When the prevailing party is
the defendant, as in this case, a court must find that the
plaintiff’s action was “frivolous, unreasonable, or without
foundation, even though not brought in subjective bad faith”
before awarding attorneys’ fees. Christiansburg Garment Co. v.
E.E.O.C., 434 U.S. 412, 421 (1978). Agro contended attorneys’
fees were appropriate because the EEOC refused to conciliate and
continued to press its suit despite knowing that Velez was not
disabled.
While Agro’s motion for attorneys’ fees was under
consideration, Agro filed with the district court an affidavit
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from its attorney and a September 7, 2006, decision from the
Merit Systems Protection Board (“MSPB decision”) in a suit
brought by Prisca DeLeonardo (“DeLeonardo”) against the EEOC.
DeLeonardo v. EEOC, AT-1221-06-0340-W-1, 2005 WL 2582680(M.S.P.B. Sept. 7, 2006). DeLeonardo, an attorney with the EEOC,
alleged she had been retaliated against for whistleblowing. The
administrative judge dismissed DeLeonardo’s complaint for failing
to allege that she had engaged in whistleblowing, but the MSPB
reversed, finding that her allegations were sufficient to state a
claim.
Of particular importance to this case was DeLeonardo’s
allegation that “in May 2005, she disclosed to Gwendolyn Reams,
the agency’s Associate General Counsel, that Mr. Guerrier
‘misrepresented and omitted facts in his report to Headquarters’
in a particular case, so that the case could be approved for
litigation.” Id. at *2. Charles Guerrier was the EEOC’s
Regional Attorney in its Birmingham office, and Velez’s case
against Agro was handled by the EEOC’s Birmingham office.
Agro’s counsel stated in his affidavit that DeLeonardo had
contacted him in May 2005, stating she would be entering an
appearance in Velez’s case. (Ehrhardt Aff. at 3.) Upon
discussing the case with DeLeonardo, Agro’s counsel contends that
DeLeonardo expressed surprise at some of the facts as he relayed
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them to her, indicating that this was not the information the
Commission2 had in front of it. (Id.) Specifically, DeLeonardo
seemed unaware that the temperature during the barrel-loading
process never exceeded seventy degrees and that Velez had
previously performed this type of manual labor. (Id.) Agro’s
counsel faxed her several witness statements confirming that
Velez had performed this type of manual labor in the past, and
DeLeonardo “indicated that she was very uncomfortable with the
EEOC’s position . . . .” (Id. at 3-4.)
DeLeonardo ultimately never entered an appearance in the
case. Agro now believes the reference in the MSPB decision to
DeLeonardo’s claim that Guerrier misled the EEOC into filing
litigation refers to the Velez case. Consequently, Agro sought
production of DeLeonardo’s complaint that resulted in the MSPB
decision. The EEOC refused to let DeLeonardo disclose the
complaint. Agro then noticed DeLeonardo’s deposition. The EEOC
filed a motion for protective order, citing attorney-client
privilege, work product privilege, and the deliberative process
privilege.
The district court conducted a telephone conference and
2
As used in this case, “Commission” refers to the five-
member commission that heads the EEOC. The Commission’s approval
is required to proceed with litigation in certain cases.
-6-
denied the EEOC’s motion. In its oral ruling, the district court
ordered that Agro could question DeLeonardo about her mental
impressions regarding the propriety of bringing or continuing the
lawsuit and the motivation for the litigation if the suit was not
justified. The court also ordered that the EEOC produce (1)
Guerrier’s report to the Office of General Counsel in which
Guerrier recommended litigation; and (2) the assessment of the
General Counsel that went to the Commission recommending
litigation.
After the district court denied the EEOC’s motion to stay,
the EEOC filed the instant petition for writ of mandamus with
this court. We stayed the deposition of DeLeonardo so that we
could fully analyze the issues presented in this case. Both
sides have briefed the issues, and we now turn to the merits of
our decision.
II. ANALYSIS
A writ of mandamus is an extraordinary remedy that is
reserved for extraordinary situations. In re Terra Int’l, Inc.,
134 F.3d 302, 305 (5th Cir. 1998) (per curiam). To obtain a writ
of mandamus, the following criteria must be met: (1) the
petitioner must have no other adequate means to obtain the relief
it desires; (2) the petitioner’s right to the writ must be clear
and indisputable; and (3) the issuing court, in the exercise of
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its discretion, must be satisfied that the writ is appropriate
under the circumstances. Cheney v. U.S. Dist. Ct. for the Dist.
of Columbia, 542 U.S. 367, 380-81 (2004); In re United States,
397 F.3d 274, 282 (5th Cir. 2005) (per curiam).
As to the first requirement, this court has recognized that
mandamus relief is appropriate in the context of privileged
documents, as an order requiring production of those documents
would not be reviewable on appeal. In re U.S. Dep’t of Homeland
Sec., 459 F.3d 565, 568 (5th Cir. 2006). “[T]he difficulty of
obtaining effective review of discovery orders, the serious
injury that sometimes results from such orders, and the often
recurring nature of discovery issues” support the use of mandamus
in exceptional cases. Id. (quoting In re Burlington N., Inc.,
822 F.2d 518, 522 (5th Cir. 1987)). In this case, the district
court ordered the deposition of an EEOC attorney and the
production of several documents that the EEOC claims are
privileged. Assuming privilege exists, there is no adequate
remedy on appeal for the revelation of this information.
Having satisfied the first requirement of mandamus, the
court now determines whether the EEOC has met its burden with
respect to the second mandamus requirement–demonstrating that its
right to mandamus relief is clear and indisputable.
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A. The Parties’ Arguments and the District Court’s Order
To fully analyze the necessity and relevance of the
information Agro seeks to discover, we must first consider what
Agro must prove to receive attorneys’ fees, what Agro hopes to
learn through the DeLeonardo deposition and the production of the
internal EEOC documents, and how that information will support
Agro’s claim.3 As noted earlier, Agro seeks attorneys’ fees as a
prevailing party pursuant to 42 U.S.C. § 12205. This court has
determined that the considerations that govern the ADA’s fee-
shifting provision are the same as those that govern fee-shifting
under Title VII and 42 U.S.C. § 1988. No Barriers, Inc. v.
Brinker Chili’s Tex., Inc., 262 F.3d 496, 498 (5th Cir. 2001).
Under that standard, a prevailing defendant may not receive fees
“unless a court finds that [the plaintiff’s] claim was frivolous,
unreasonable, or groundless, or that the plaintiff continued to
litigate after it clearly became so.” Id. (quoting
Christiansburg, 434 U.S. at 422). In determining whether a suit
is frivolous, a court should consider factors such as whether the
plaintiff established a prima facie case, whether the defendant
offered to settle, and whether the court dismissed the case or
3
Nothing in this opinion should be construed as a comment
one way or the other on the merits of Agro’s motion for
attorneys’ fees. We leave that decision to the district court.
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held a full trial. Myers v. City of W. Monroe, 211 F.3d 289, 292
(5th Cir. 2000) (construing 42 U.S.C. § 1988); Walker v. City of
Bogalusa, 168 F.3d 237, 240 (5th Cir. 1999) (same). A suit is
“frivolous” if it is “so lacking in arguable merit as to be
groundless or without foundation . . . .” Walker, 168 F.3d at
240 (internal quotes and citation omitted).
Here, Agro contends that the EEOC either knew or should have
known that Velez was not disabled before it filed suit.
Specifically, Agro argues that Velez had performed similar types
of manual labor in the past. Further, Agro asserts that the EEOC
either knew or should have known that the working conditions on
the day Velez refused to report were not above eighty degrees, so
Velez’s alleged disability would not have caused him any
problems. Stated differently, Agro claims that the facts
available to the EEOC, through Velez’s testimony and the
information received by DeLeonardo, rendered further litigation
frivolous.
In its response, and key to this court’s decision, the EEOC
does not assert that it was unaware of this information or that
it was misled by one of its attorneys into filing suit. Instead,
the EEOC defends against the imposition of attorneys’ fees on the
ground that there were sufficient facts to go forward with the
suit. In other words, in its argument regarding the propriety of
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an attorneys’ fees award, the EEOC does not deny that it was
aware of or had access to the information that Agro contends made
this suit frivolous. Therefore, for purposes of this decision,
the information known by Guerrier, regardless of whether he
communicated it to the Commission, and the information obtained
by DeLeonardo, regardless of whom she communicated it to, was
known to the EEOC because it was known by its attorneys.4
To support its claim for attorneys’ fees, Agro seeks to
depose DeLeonardo on several topics. In its argument before the
district court, Agro stated it was interested in (1) what
DeLeonardo communicated in May 2005; (2) when she communicated
it; (3) how she communicated it; (4) what specific facts led her
to believe Guerrier did not properly advise the Commission; and
(5) what action was taken in response to DeLeonardo’s revelation
of the “real truth and the complete truth” to the EEOC.
(Transcript of 10/23/06 hearing at 29.) As stated in its
briefing before this court, Agro is not seeking to discover
DeLeonardo’s or Guerrier’s mental impressions of this case.
(Agro Br. at 19.) Instead, Agro claims it only wants to know why
the EEOC continued to litigate the case after being advised by
4
We do not now decide whether the EEOC could deny that it
was aware of information possessed by its own attorneys; however,
in this case, the EEOC has not denied it.
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DeLeonardo that it had been misled into pursuing this litigation
in the first place. (Id. at 20.)
In sum, based on its arguments to the district court and to
this court, Agro seeks the following information: (1) what
Guerrier said to the Commission; (2) why Guerrier’s statements
were misleading; (3) what DeLeonardo revealed; and (4) why the
litigation continued. As noted above, the district court
required the EEOC to produce the documents sent from Guerrier to
the General Counsel and from the General Counsel to the
Commission regarding possible litigation. (Transcript of
10/23/06 hearing at 35-36.) The district court also ordered that
DeLeonardo be deposed and that Agro could question her about her
mental impressions of the case and why she believed the EEOC
chose to continue with the litigation. (Id. at 32-33.) The EEOC
contends this information is privileged under the attorney-
client, work product, and deliberative process privileges. We
will first consider the attorney-client and work product
privileges.
B. Attorney-Client and Work Product Privileges
As the party asserting privilege, the EEOC bears the burden
of demonstrating that DeLeonardo’s testimony and the internal
EEOC documents are privileged. See United States v. Rodriguez,
948 F.2d 914, 916 (5th Cir. 1991) (“The burden of establishing
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privilege rests on the party who invokes it.”). With respect to
the attorney-client privilege, we note that because this case
concerns the adjudication of federal rights, the federal common
law of attorney-client privilege applies. Willy v. Admin. Review
Bd., 423 F.3d 483, 495 (5th Cir. 2005).
The attorney-client privilege is recognized as “the oldest
of the privileges . . . known to the common law.” United States
v. Zolin, 491 U.S. 554, 562 (1989) (internal quotation marks
omitted). Its purpose is “to encourage full and frank
communication between attorneys and their clients and thereby
promote broader public interests in the observance of law and
administration of justice.” Id. (internal quotation marks
omitted); see also In re Grand Jury Subpoena, 419 F.3d 329, 338
(5th Cir. 2005). Simply stated, under this rule, “an attorney
may not disclose his client’s confidences.” Willy, 423 F.3d at
495.
Similarly, the work product privilege “serves to protect the
interests of clients and their attorneys in preventing
disclosures about the case by shielding the lawyer’s mental
processes from his adversary.” In re Grand Jury, 419 F.3d at 339(internal citations and quotation marks omitted). The work
product privilege extends to and protects documents prepared in
anticipation of litigation. In re Kaiser Aluminum & Chem. Co.,
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214 F.3d 586, 593 (5th Cir. 2000) (citing FED. R. CIV. P.
26(b)(3)).
Here, the information sought by Agro and ordered to be
disclosed by the district court falls within the attorney-client
and work product privileges. With respect to the proposed
testimony from DeLeonardo, Agro seeks to delve into her
discussions with other EEOC attorneys about the merits, or lack
thereof, of this case, specifically, whether the facts warranted
continued litigation. These communications are protected by the
attorney-client privilege. See Cedrone v. Unity Sav. Ass’n, 103
F.R.D. 423, 429 (E.D. Pa. 1984) (finding oral communications
between attorneys in the same office concerning the
representation of a client to be privileged); see also RESTATEMENT
(THIRD) OF THE LAW GOVERNING LAWYERS § 70 cmt. g. (2000). Therefore,
DeLeonardo’s testimony as to what Guerrier told the General
Counsel, what DeLeonardo told other EEOC attorneys, and what
those attorneys told DeLeonardo about why the litigation was
going to continue are all privileged communications.
As to the reports from Guerrier to the General Counsel and
from the General Counsel to the Commission, they are also clearly
privileged. The documents, as described by the parties, contain
an analysis of the facts of Velez’s case, both strengths and
weaknesses, and a recommendation of whether litigation is
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appropriate. In NLRB v. Sears, Roebuck & Co., the Supreme Court
considered whether internal memoranda produced by the Office of
General Counsel discussing the General Counsel’s reasons for
filing suit were covered by the work product privilege. 421 U.S.
132 (1975). The Supreme Court held that such documents fell
squarely within the work product protection. Id. at 160. The
Supreme Court noted that “[w]hatever the outer boundaries of the
attorney’s work-product rule are, the rule clearly applies to
memoranda prepared by an attorney in contemplation of litigation
which set forth the attorney’s theory of the case and his
litigation strategy.” Id. at 154.
Agro does not contest that the information it seeks by the
deposition and document production is privileged, except to argue
that the attorney-client and work product privileges do not
protect testimony concerning the factual accuracy of Guerrier’s
report. However, regardless of its accuracy, Guerrier’s report
is still a communication between EEOC attorneys and is protected
by privilege. Further, as discussed in the next section, given
the EEOC’s position on Agro’s claim for attorneys’ fees, the
factual accuracy of Guerrier’s report is not relevant.
Therefore, DeLeonardo’s deposition and the documents ordered to
be produced by the district court are privileged under the
attorney-client and work product doctrines, and Agro must show an
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exception to privilege.
C. Necessity Exception
The first possible exception to privilege in this case is
necessity, which appears to be the basis for the district court’s
decision. The district court stated that this was a search for
truth and that it needed the best possible information to make
its decision regarding attorneys’ fees. (Transcript of 10/23/06
hearing at 31-32.) The court also said that there was no other
way for it to get the information it needed. (Id. at 35.)
There is a necessity exception to the work product
privilege, as found in Rule 26(b)(3) of the Federal Rules of
Civil Procedure, which states that documents “prepared in
anticipation of litigation or for trial” may be discovered “only
upon a showing that the party seeking discovery has substantial
need of the materials in the preparation of the party’s case and
that the party is unable without undue hardship to obtain the
substantial equivalent of the materials by other means.”5
However, even in such a case, the court “shall protect against
5
There is a question as to whether the attorney-client
privilege is subject to a similar exception based on necessity in
these circumstances. See Arcuri v. Trump Taj Mahal Assocs., 154
F.R.D. 97, 105 (D.N.J. 1994) (stating the attorney-client
privilege has no “needs” exception). However, because necessity
does not provide a reason to disclose the communications in this
case, the court need not reach whether the attorney-client
privilege is even subject to such an exception.
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disclosure of the mental impressions, conclusions, opinions, or
legal theories of an attorney . . . concerning the litigation.”
Id.Applying this to the order of the district court, it becomes
clear that the district court exceeded what was appropriate in
this case. The documents from Guerrier to the General Counsel
and from the General Counsel to the Commission, as described by
the parties, contain the mental impressions, conclusions,
opinions, and legal theories of attorneys involved in the Velez
case. Thus, despite any “necessity” arguments, under Rule
26(b)(3), the district court cannot order their production.6
There is also little or no need for the district court to
delve into what information Guerrier withheld from the
Commission. The only reason Guerrier’s alleged misleading
communication would be relevant to the issue of attorneys’ fees
is if it could somehow absolve the EEOC of its responsibility for
filing a frivolous lawsuit. However, as noted above, the EEOC
has not defended against the imposition of attorneys’ fees on the
6
Agro argues that the factual portions of the documents
could be produced. The district court, however, ordered
production of the entire file, not just the factual portions.
Further, given the analysis in this case, the factual portions of
the documents are not so necessary to the attorneys’ fees
argument as to overcome privilege.
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ground that it was misled by Guerrier into filing suit.7
Therefore, the EEOC, through Guerrier and later DeLeonardo, was
in possession of the facts that Agro contends made this a
frivolous lawsuit. Whether these facts were appropriately
communicated between different employees and the Commission is
not a question the district court need answer.
Further, there is no “substantial need” for DeLeonardo’s
testimony regarding her belief of the propriety of continuing the
lawsuit or the EEOC’s reasons for doing so. Whether the lawsuit
should have been continued is a question for the district court
to answer in its determination of frivolousness. We are
confident the district court can make that decision without the
opinion testimony of DeLeonardo.
With respect to the EEOC’s reasons for continuing the suit,
Agro argues extensively that it needs to know the EEOC’s
motivation so it can demonstrate bad faith on the part of the
EEOC. However, a bad faith finding is not required for an award
of attorneys’ fees. Christiansburg, 434 U.S. at 421. While we
do not deny that evidence of bad faith would be helpful to Agro’s
case, it does not, in and of itself, justify breaching attorney-
7
Were the EEOC to contend that attorneys’ fees were
unwarranted because it had been misled by Guerrier, there would
be a strong argument for waiver of privilege.
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client privilege. To hold otherwise would open the door to the
routine deposition of attorneys any time a claim of frivolousness
or bad faith is made. Consequently, the necessity exception does
not warrant the deposition of DeLeonardo or the production of the
internal EEOC documents in this case.
D. Crime-Fraud Exception
Agro also argues that the crime-fraud exception warrants
disclosure of the privileged information it seeks. Specifically,
Agro contends that the EEOC’s decision to continue with frivolous
litigation was fraudulent and that this fraud should be
sufficient to overcome privilege. The district court did not
appear to rely on the crime-fraud exception in its ruling, but we
will address it, as it has been raised at both the district court
and appellate levels.
The crime-fraud exception applies to both the attorney-
client and work product privileges. In re Grand Jury, 419 F.3d
at 335. Pursuant to the crime-fraud exception, privilege is
overcome when an attorney-client communication or work product is
intended to further continuing or future criminal or fraudulent
activity. Id. The party seeking discovery of privileged
information bears the burden of establishing a prima facie case
that the attorney-client relationship was intended to further
criminal or fraudulent activity. Id.-19-
Agro did not produce any evidence or argument at the
district court level that the EEOC’s actions constituted a
crime.8 Therefore, the question is whether Agro produced
sufficient evidence that the EEOC and its attorneys were engaged
in ongoing fraudulent activity. It has not. The only evidence
of fraud in this case is Agro’s argument and evidence that the
EEOC’s lawsuit was frivolous, which does nothing to distinguish
it from the many other cases in which the defendant believes the
plaintiff’s claims are meritless. We do not construe the crime-
fraud exception so broadly.
The one unique feature of this case is the fact that Agro
has found an EEOC attorney who appears to agree that the case
lacked merit. This, however, does not mean that the EEOC was
engaged in fraud. Negligent handling of the case or sheer
incompetence could just as easily explain why the EEOC continued
to litigate, assuming the case did, in fact, lack merit.
Further, it is not unusual for attorneys to disagree about the
merits of a case. This disagreement does not, however,
constitute fraud.
8
Agro asserts in a footnote in its brief that Guerrier’s
actions in allegedly making a false statement to a government
agency may constitute a crime. See 18 U.S.C. § 1001. Agro,
however, did not raise this issue before the district court and
has, therefore, waived it on appeal. See Tex. Commercial Energy
v. TXU Energy, Inc., 413 F.3d 503, 510 (5th Cir. 2005).
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We understand the district court’s concern that an EEOC
attorney may have misled the Commission into approving frivolous
litigation. However, the resolution of that issue has little or
no bearing on the question of whether the litigation was actually
frivolous, which is all that is at issue at this stage of the
case. The question of frivolousness can be answered on the facts
of the case without delving into the confidential and privileged
communications of EEOC attorneys.
In sum, the information sought by Agro by way of
DeLeonardo’s deposition and the production of the internal EEOC
documents is privileged and no exception to privilege has been
shown. Therefore, the EEOC has met its burden under the mandamus
analysis of showing that its right to mandamus relief is clear
and indisputable.9 Given the facts of this case, the privileges
at issue, and the analysis above, we, in the exercise of our
discretion, determine that it is appropriate to grant the writ of
mandamus.
III. CONCLUSION
For the foregoing reasons, we GRANT the writ of mandamus.
WRIT GRANTED.
9
Because we reach this decision on the basis of the
attorney-client and work product privileges alone, we do not
reach the issue of the deliberative process privilege.
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Judge DEMOSS would deny the petition for writ of mandamus
and would deny the motion for stay of the discovery proceedings.
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