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eLABORate: Tenth Circuit Hands EEOC A Rare Defeat in a Subpoena Enforcement Action

February 29, 2012

On February 27, 2012, in EEOC v. Burlington Northern Santa Fe Railroad, the Tenth Circuit held that the district court properly denied enforcement of an EEOC subpoena that sought nationwide discovery. In 2007, Gregory Graves and Thomas Palizzi filed charges of discrimination based on perceived disability after they were not hired by BNSF for a Conductor or Conductor Trainee position in Colorado following a conditional offer of employment and medical screening procedure. 
As part of its investigation of Graves and Palizzi’s charges, the EEOC issued a subpoena seeking nationwide information related to current and former employee of BNSF from December 1, 2006 through the present. BNSF subsequently objected to the scope of the subpoena and requested documentation in support of a broader investigation. Thereafter, the EEOC simply informed BNSF that it broadened its investigation from the charges filed by Graves and Palizzi to include “pattern and practice discrimination.” In response, BNSF filed a petition to revoke or modify the subpoena. The EEOC denied the petition and, after BNSF failed to comply with the administrative subpoena, the EEOC brought an enforcement action. 
The district court denied the EEOC’s petition for enforcement, holding that the information sought by the subpoena was not relevant to the charges under investigation. According to the district court, “demand for data on a nation-wide basis with two individual claims involving only applicants in Colorado is excessive.” In affirming the district court’s decision, the Tenth Circuit reasoned that “nationwide recordkeeping data is not ‘relevant to’ charges of individual disability discrimination filed by two men who applied for the same type of job in the same state.”
The Tenth Circuit reiterated that the EEOC is only entitled to evidence that is “relevant to the charge[s] under investigation” and found that the charges under investigation were only those filed by Graves and Palizzi. The court reasoned that, insofar as the information sought by the EEOC was not relevant to the charges filed by Graves and Palizzi, the district court correctly found that the EEOC sought “plenary discovery.” The court rejected the EEOC’s attempt to rely on on additional pending charges against BNSF to justify the broadened investigation, reasoning that the subpoena lacked any reference to any other charges that might indicate that an additional charge is at issue (a fact that might have been different if EEOC had consolidated the charges into a Commissioner’s charge). The court further criticized the EEOC for failing to supply BNSF with its justification or evidence during the administrative enforcement phase. Moreover, in recognition of the well-known subpoena enforcement principle that relevance should not be construed so broadly as to render its requirement a nullity, the court explained that a broad request for information cannot be justified solely on the ground that discrimination suffered by the charging party could be a part of a pattern or practice of discrimination if such discrimination existed. 
The Tenth Circuit’s decision represents a marked departure from the recent trend in the appellate courts enforcing EEOC subpoenas seeking nationwide information. In particular, prior to the Tenth Circuit’s decision, the EEOC had racked up a string of uninterrupted successes before the appellate courts in overturning district court opinions that had denied enforcement of subpoenas seeking seeking nationwide information arising out of what appeared to be individual charges addressing individual claims of discrimination at individual employer locations. See EEOC v. Schwan’s Home Service, 644 F.3d 742 (8th Cir. 2011) (enforcing EEOC subpoena seeking companywide information related to selection practices for general manager training program in connection with charge by former employee alleging discrimination based on gender after being denied position of general manager); EEOC v. Konica Minolta Business Solutions U.S.A., Inc., 639 F.3d 366 (7th Cir. 2011) (enforcing EEOC subpoena requesting records relating to hiring of sales personnel at all four of employer’s Chicago-area facilities in connection with charge by former employee alleging discrimination based on race and retaliation); EEOC v. Kronos Inc., 620 F.3d 287 (3d Cir. 2010) (enforcing EEOC third-party subpoena seeking validity studies related to pre-employment tests purchased by employer, instruction manuals, documents related to employer and any validation efforts made regarding all jobs at employer in connection with charge by job applicant based on disability after being denied position of cashier, bagger and stocker at a store in West Virginia); EEOC v. United Parcel Service, Inc., 587 F.3d 136 (2d Cir. 2009) (enforcing EEOC subpoena seeking nationwide discovery in connection with charge by job applicant alleging discrimination based on religion after being denied driver position in New York). 
In refusing to enforce the EEOC subpoena before it, the Tenth Circuit distinguished the decision of the Third Circuit in EEOC v. Kronos Inc. on the ground that, unlike the charges of Graves and Palizzi, the charge in Kronos involved a claim of disability discrimination that turned on the company-wide use of a test that allegedly facilitated discrimination based on disability. The court further distinguished the decision of the Seventh Circuit in EEOC v. Konica Minolta Business Solutions U.S.A., Inc. on the ground that it involved an allegation of race discrimination, which the Seventh Circuit stated “is by definition class discrimination,” and the information sought by the EEOC in Konica was limited to offices in the same metropolitan area in which the employee worked. Indeed, the Tenth Circuit suggested that it may have enforced the EEOC subpoena had it only sought information relating to other positions and offices in Colorado.

The Tenth Circuit’s decision gives employers faced with EEOC subpoena enforcement actions at least one recent appellate decision to examine and potentially rely on in defending their refusal to acquiesce in broad information requests. Nevertheless, the decision should be examined carefully in light of its own caveats and the broad language of other appellate courts that have enforced EEOC subpoenas, to determine whether it can be applied successfully to a particular fact situation. Despite the success of BNSF in this instance, the run of appellate cases has not been favorable to employers fighting subpoenas, and EEOC will be unlikely to read this decision as other than limited to its facts. Indeed, with some minor changes in the facts—a statewide subpoena or the existence of a Commissioner’s charge—the Tenth Circuit suggested the result may have been different. Thus, employers should be cautious about breathing too heavy a sigh of relief from this decision, and should continue to focus on evaluating their employment practices so that if and when they do get hit with a request for broad information, they have positive information to provide.

Phelps Dunbar Attorneys Reed Russell and Erin Malone also wrote an article in April of 2011 on EEOC subpoenas for BNA’s Employment Law Discrimination Report. Please click here to read their article.

Inquiries concerning topics addressed in this issue of the eLABORate may be directed to the contributing editor listed below or any of the members of the Phelps Dunbar Labor and Employment practice group.