IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO DECLARATION OF EEOC CHAIR JACQUELINE A. BERRIEN

Transcription

1 Equal Employment Opportunity Commission v. JBS USA, LLC Doc. 290 Att. 2 Civil Action No. 10-cv PAB-KLM IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, and Plaintiff, IRAQ ABADE, et al., v. Plaintiffs-Intervenors,.../BS USA, LLC d/b/a JBS SWIFT & COMPANY, Defendant. DECLARATION OF EEOC CHAIR JACQUELINE A. BERRIEN I, Jacqueline A. Berrien, state the following: 1. I am the Chair of the United States Equal Employment Opportunity Commission ("EEOC" the "Commission"). The Commission is responsible for the administration, interpretation, and enforcement of, among other statutes, Title VII of the Civil Rights Act of 1964, 2000e et seq. As Chair, I am responsible for the implementation of Commission policy and the overall operation and administration of the Commission. I am authorized to invoke on behalf of the Commission the governmental privilege for deliberative processes. Dockets.Justia.com

2 2. The operation of the Commission as a law enforcement agency requires the free expression by Commission employees of analyses, advice, recommendations, and opinions regarding charges of discrimination and how specific charges should be processed and investigated by the Commission. 3. During an investigation, EEOC personnel will often communicate with each other via about what is happening in the investigation and how they believe the agency should proceed. These interchanges are predecisional and disclosure would negatively impact the Commission's ability to enforce the anti-discrimination laws. 4. I understand that certain documents and portions of documents in EEOC's investigative files regarding charges filed against the defendant in this action, including s such as those described in paragraph 3 above, have become the subject of a motion to compel, and that the Court has requested that EEOC formally invoke the deliberative process privilege with respect to these documents and portions of documents. I have reviewed these documents and portions of documents, and hereby invoke, on behalf of the Commission, the deliberative process privilege for the documents and portions of documents described in Exhibit A to this Declaration. These documents and portions of documents are predecisional, and their disclosure would inhibit the free expression and flow of ideas and opinions necessary for proper enforcement of the laws under the Commission's authority. 2

3 I declare under penalty of perjury that the foregoing is true and correct. Executed this /i./~a y of August ueline A. Berrien, Chair Equal Employment Opportunity Commission 131 M Street, NE Washington, DC

4 Exhibit A to Declaration of EEOC Chair Jacqueline A. Berrien EEOC et al. v. JBS USA, LLC d/b/a JBS Swift & Co. (D. Colo. No. 10-cv PAB-KLM) Bates Number E Date(s) Description ; ; /10/09; 1/30/09; 10/28-29/08 These nine pages contain chains between EEOC Investigators Danee Attebury and Shannon Breen, EEOC IT Specialist Jose Robinson, and EEOC Enforcement Supervisor Holly Romero concerning the processing and investigation of the various Swift charges. The chain includes communications that indicate the ways EEOC staff considered approaching the investigation and analyzing the data available to the agency /27/09 chain between EEOC Investigator Breen and Ronald Edwards, a Manager in EEOC s Office of Research, Information, and Planning (ORIP). ORIP is an EEOC Headquarters Office that performs analytic work on charges filed with the agency. The chain reflects EEOC staff s ideas and opinions concerning information provided by Swift and how to proceed with the investigation /16/08 from EEOC Investigator Breen to EEOC ORIP Manager Ronald Edwards discussing Swift s electronic databases /24/09 chain between EEOC Investigators Breen and Attebury indicating how EEOC was approaching the investigation and what information it thought could be relevant to the Swift Charges /22/09; 2/17/09 chain between EEOC Investigators Breen and Mark Forgy indicating EEOC s plans for processing the influx of information contained in Charges of Discrimination and in Swift Position Statements, and analysis of that information /11/2009 chain between EEOC Investigator Breen and EEOC Enforcement Manager Erica Gagne indicating sources of information they considered potentially relevant to the Swift Charges /3/09 chain between EEOC Investigator Breen and Colorado Civil Rights Division (CCRD) Investigator Jason Rosenberg. The chain reveals EEOC plans for processing information obtained from Swift as well as plans for 1

5 further coordination between EEOC and CCRD on the investigation of the Swift Charges ; s between EEOC Investigators Breen, Attebury, Myrna DeQuiroga, and Forgy discussing the processing and analysis of information received regarding the Swift Charges. 3591; /21-22/09 chain between EEOC Investigator Breen and representatives of CCRD (Penny Pearson and Benjamin Hase) regarding processing of information obtained from Swift /14-15/09 s between EEOC Investigators Breen and Forgy indicating Mr. Forgy s opinion of the merits of various Swift Charges /30-31/08 s between EEOC Investigators Breen and Attebury indicating EEOC s plan for categorizing and processing information related to the Swift Charges and for conducting further investigation ; 3612; /16-17/08 exchange between EEOC Investigator Breen and the EEOC State and Local Coordinator for Iowa, Roxanne Kitman, regarding plans for the processing of various Swift Charges /4/08 from EEOC Investigator Attebury to EEOC Investigators Breen, DeQuiroga, and Forgy, as well as EEOC Supervisors Romero and Colleen Scaramella. The contains a link to a news article and indicates the investigator s opinion regarding the relevance of the article to EEOC s investigation of the Swift Charges /3/08 from EEOC Investigator Breen to EEOC Investigators Attebury, DeQuiroga, and Forgy indicating Ms. Breen s initial thoughts on drafting charges, and soliciting input on the drafting of charges /24/08 from EEOC Investigator Breen to EEOC Supervisor Scaramella regarding deadlines for submission of information by Swift. This page also contains a handwritten response from Ms. Scaramella, dated 11/24/08, discussing future steps in the investigation and containing a recommendation for further analysis /19/08 from EEOC Investigator Breen to EEOC Investigator DeQuiroga providing directions for further steps in the Swift investigation. 2

6 /18/08 Handwritten notes made by EEOC Investigator Breen regarding a phone call she had with CCRD Deputy Director Penny Pearson. The notes reflect the interagency plans concerning next steps in the coordinated Swift investigation /17/08 from EEOC Investigator Breen to EEOC Supervisor Scaramella forwarding s between Breen and Ashley Kelliher and containing Ms. Breen s recommendations concerning use of translator services in the Swift investigation. Ms. Kelliher is not a Commission employee and the s between her and Ms. Breen have been produced /10/08 from EEOC Investigator Breen to EEOC Investigators Attebury, Forgy, and DeQuiroga. The makes recommendations about further actions in the Swift investigation and about how the investigators could keep track of work expected to be done during the investigation /28/08 exchange between EEOC Investigator Breen, EEOC Supervisor Scaramella, and EEOC Denver Field Office Director Nancy Sienko about a draft version of a letter to accompany an EEOC subpoena related to the Swift investigation ; /24/08; 10/8/08 s between EEOC Investigator Breen and EEOC Supervisors Scaramella and Romero transmitting a draft document on the Swift investigation and indicating plans for further investigation, including which EEOC staff are available to help /22/08 chain involving EEOC Investigators Breen and Forgy and EEOC Director Sienko regarding agency staff from outside the Denver office that might be a resource to the office during the Swift investigation /22/08 chain involving EEOC Investigator Breen, EEOC Director Sienko, and EEOC Program Analyst Thelma Brown regarding plans for processing and investigating charges against Swift /16/08 from EEOC Investigator Breen to her EEOC supervisors (Romero, Scaramella, and Sienko) on the location of documents regarding Swift and on the possibility of charges being filed against Swift /16/08 Two chains in which a news article was forwarded by EEOC personnel to other EEOC personnel and EEOC personnel responded to the forwards. The responses indicate EEOC Investigator Breen s and EEOC Supervisory 3

7 Trail Attorney Jonathan Peck s (San Francisco) opinions about the article and how it related to possible EEOC charges /15/08 from EEOC Investigator Breen to EEOC Supervisors Romero and Scaramella regarding coordination between EEOC and CCRD on potential charges against Swift /16/08 from EEOC Investigator Breen to EEOC Supervisors Romero and Scaramella and Director Sienko, and response from Sienko, regarding the processing of expected charges against Swift, and indicating information Romero considered relevant to a meeting on Swift /15/08 chain involving EEOC Supervisor Romero and EEOC Investigators Breen and Christopher Padilla regarding potential charges against Swift /7/08 exchange between EEOC Investigator Breen and EEOC Supervisor Scaramella discussing actions to be taken regarding an investigation of Swift /24/08 from EEOC Investigator Breen to EEOC Supervisors Romero and Scaramella discussing a charge filed against a Swift facility in Nebraska and its relationship to the Denver Office s investigation of Swift /22/08 chain between EEOC Supervisor Romero and EEOC Director Sienko. On one of the s, EEOC Supervisor Scaramella and EEOC Investigator Breen are also recipients. The s discuss actions to be taken in an investigation of Swift /22/08 from EEOC Supervisor Scaramella to EEOC Investigator Breen instructing her of actions to be taken in an investigation of Swift /10/08 exchange between EEOC Investigator Breen and EEOC ORIP Manager Ronald Edwards regarding ORIP obtaining information about Swift /10/08 Series of s between EEOC Investigators Forgy and Breen and EEOC Director Sienko. The s indicate the decisionmaking process used by EEOC when the religious accommodation issue at Swift began to be publicized in the press. The parties discuss possible agency actions in response to news articles. REDACTIONS: 6513; 6521; 6541; 7052; 7071; 7074; 7083; 7288; Various dates between 12/16/09 and 11/17/10 These are all redactions from either the Charge Detail Inquiry Form or the Case Log for various Swift charges. The redacted portions indicate Commission employees opinions about the potential merits of the charges 4

8 7309; 7328; 7344; 7363; 7380; 7397; 7414; 7432; 7448; 7464; 7480; 7269; 7500; 7519; Approximately late November, or December, 2010 and espouse initial plans for processing and investigating the charges. Handwritten notes by EEOC Investigator Breen concerning intentions for additional communications with King & Griesen, a law firm representing many of the Swift Charging Parties. 5