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Gertskis v. EEOC, No. 11 Civ. 5830(JMF), 2013 WL 1148924 (S.D.N.Y. Mar. 20, 2013) (Furman, J.)
March 20th, 2013 Posted by

Re: Request for records pertaining to plaintiff’s EEOC complaints and EEOC policies

Disposition: Granting DOJ’s motion to dismiss; granting EEOC’s motion for summary judgment

  • Exemption 5/Deliberative Process Privilege:  The EEOC withheld “three words from two recommendation memoranda and language in two sections of four assessment forms.”  The “documents were prepared by the EEOC investigator assigned to the charges and are addressed to her supervisor” and the “memoranda [created] at the conclusion of the investigation contain[ed] an evaluation of the charge and a recommended determination.”  “Accordingly, the memoranda and forms are plainly predecisional and, insofar as they include the investigator’s analysis and recommendation, are deliberative.   They are therefore exempt from disclosure.” 
  • Adequacy of Search:  The court concludes that the “declarations demonstrate that the agencies conducted a thorough search.”  The EEOC searched for and provided responsive records, disclosed additional information on appeal, and “conducted a third reconsideration of its determinations, ultimately disclosing almost all the information sought by Plaintiff.”
  • Exhaustion of Administrative Remedies:  Plaintiff attempted to appeal the actions of DOJ on her FOIA requests by writing a letter to the Office of Legal Counsel for FOIA Programs at EEOC.  “As DOJ regulations require an appeal to DOJ’s Office of Information [Policy] . . ., and the EEOC is a different agency from DOJ, it follows that an appeal to the head of the EEOC is insufficient to exhaust administrative remedies for purposes of filing a lawsuit against DOJ or DOJ officials.”  Plaintiff’s claims against DOJ are dismissed for failure to exhaust administrative remedies.
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