It is commonplace in employment litigation to learn that a charge by a single employee of a discrete violation of law has become the basis for broad and far reaching requests for information and documents or that the EEOC has filed a complaint for hundreds of employees it has not even considered in its investigation or in its attempts at statutory conciliation.
Despite precedents that give wide berth to the EEOC on investigative subpoenas, the United States District Court for the Eastern District of Kentucky in EEOC v. Nestle Prepared Foods denied the Commission’s request to enforce a subpoena seeking information for every employee whom the employer referred for or who actually submitted to a medical examination based on a narrow and discrete charge of genetic information discrimination by a single employee. 5:11-mc-358-JMH-REW (E.D. Ky. 2012). Judge Joseph Hood acknowledged the breadth of discretion courts have given the EEOC at this stage of litigation but rejected the Magistrate Judge’s ruling on the relevance of this broad subpoena for records of all Nestle’s employees at the facility.
The court acknowledged numerous cases authorizing broad subpoena enforcement under the Supreme Court precedent in EEOC v. Shell Oil, 466 U.S. 54 (1984), but observed that Shell’s progeny cases all “involved articulable circumstances that suggested the existence of violations beyond those specified in the charges,” factors not present in Nestle. The court found that the Commission inadequately justified its request for the employee records, apparently based purely on the charging party’s checking of the “GINA” box on the charge form. At hearing, the EEOC attorney admitted that the Commission pursued the investigation without any evidence beyond that checked box but simply asserted that the agency “feel[s]” there is a violation. In denying the enforcement of the EEOC’s subpoena, the court explained that, while the EEOC’s investigative procedures remain “important,” not every charge gives rise to investigations of “facility-wide” discriminatory practices.
This decision is in line with a growing number of cases that have challenged the Commission’s use of limited charges to expand litigation beyond reasonable limits. Just last month, the Eighth Circuit held that the Commission’s failure to conduct a complete investigation and conciliation prevented the agency from representing 67 women for whom it purported to act in class litigation and affirmed dismissal of the EEOC’s suit as to these employees. EEOC v. CRST Van Expedited, Inc., 2012 WL 1583026 (8th Cir. May 8, 2012). Although not as harsh as the Eighth Circuit, the Eastern District of Washington recently stayed the EEOC’s claims because the Commission did not attempt to conciliate in “good faith” when it “acted unreasonably in failing to respond flexibly” to an employer’s request during the conciliation process. EEOC v. Evans Fruit Co., Inc., 2012 WL 1899194 (E.D. Wash. May 24, 2012).
Last year, the Northern District of Illinois held that the Commission’s failure to identify what employees were entitled to relief after years of investigation, and to plead their claims with sufficient specificity, doomed its effort to expand the class of persons it wanted to represent in that case. EEOC v. United Parcel Service, Inc., 2011 WL 4538450 (N.D. Ill. Sept. 28, 2011).
Similarly, the Southern District of New York recently granted a defense judgment on the pleadings against EEOC in an Equal pay Act case, finding that EEOC’s generic claims on behalf of 14 female nonsupervisory lawyers do not raise a plausible factual case that the claimants perform the same work as male comparators receiving higher pay after the Commission engaged in a fruitless three year investigation. EEOC v. Port Authority of N.Y. and N.J., 2012 WL 1758128 (S.D.N.Y. May 17, 2012). And the same court granted a defense summary judgment where the EEOC could not present sufficient evidence that Bloomberg discriminated against pregnant women and mothers. EEOC v. Bloomberg, L.P., 778 F. Supp. 2d 458, 486 (S.D.N.Y. 2011).
A district court in Michigan entered an order of dismissal and subsequently granted a substantial award of attorneys’ fees to an employer when the Commission failed to produce an expert report that it alleged would support its claim of disparate impact in the use of criminal convictions to screen employee applicants for employment. EEOC v. Peoplemark, Inc., 2011 WL 1707281 (W.D. Mich. Mar. 31, 2011). The Commission’s appeal is pending in the Sixth Circuit.
These cases suggest that, in appropriate cases, the courts will be more willing to limit the overreaching investigator and restrict litigation strategies used by the EEOC when overbroad discovery is based on speculative probes and allegations. While the statute gives broad authority to the investigative role of the Commission, it is not unlimited, and the courts may be tiring of these overzealous and expensive tactics.