866 F. Supp. 2d 636

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. ALLIANCE RESIDENTIAL COMPANY, Respondent.

Miscellaneous Action No. 5:11-MC-638-FB.

United States District Court, W.D. Texas, San Antonio Division.

Nov. 18, 2011.

*638Edward Juarez, U.S. Equal Employment Opportunity Commission San Antonio Field Office, San Antonio, TX, for Plaintiff.

Lawrence D. Smith, Sona Ramirez, Ogletree Deakins Nash Smoak & Stewart, PC, San Antonio, TX, for Respondent.

ORDER CONCERNING PLAINTIFF’S APPLICATION TO ENFORCE ADMINISTRATIVE SUBPOENA

FRED BIERY, Chief Judge.

Before this Court are Plaintiffs Application to Enforce Administrative Subpoena (docket # 1), Respondent’s Response and Objections to Plaintiffs Application (docket # 3), Plaintiffs Reply to Respondent’s Response (docket # 5), and Respondent’s Advisory to the Court in Support of Response to Plaintiffs Application (docket # 6). Plaintiff seeks an order directing respondent to comply with the subpoena and requests an award of costs incurred in the prosecution of this Application.1 For the following reasons, Plaintiffs Application to Enforce Administrative Subpoena (docket # 1) is GRANTED.

I. Background

Plaintiff, the United States Equal Employment Opportunity Commission (hereinafter “EEOC” or the “Commission”) seeks enforcement of an administrative subpoena duces tecum issued by the EEOC in conjunction with an Americans with Disabilities Act (hereinafter “ADA”) investigation. The employer at the center of the ADA investigation is respondent, Aliance Residential Company (hereinafter “Aliance”). Aliance is a property management company with over 1,400 employees based out of 16 branch offices in 14 states around the United States. (Declaration of Kimberley Viraco, Aliance Human Resources Director, attached as Exhibit A to Respondent’s Response and Objections to Plaintiffs Application.)

A former Aliance employee, Monica Laurel, worked at an Aliance apartment complex in San Antonio, Texas and took leave under the Family and Medical Leave Act (hereinafter “FMLA”) because she suffered from a spinal impairment. The impairment affected her neurological function, body movement, and lifting ability. (Plaintiffs Application to Enforce Administrative Subpoena at page 2-3.) Ms. Laurel was terminated on December 8, 2009. Id. On December 22, 2009, Ms. Laurel filed a charge of discrimination with the EEOC alleging Aliance discharged her in violation of the ADA,2 and the EEOC commenced an investigation. Id.

*639Alliance contends Ms. Laurel was terminated pursuant to a company-wide policy for medical reasons due to her inability to return to work after exhausting her allotted twelve weeks of FMLA. As part of the investigation, Alliance submitted to the Commission a list of approximately 29 terminations executed in 2009-2010 pursuant to this policy. Alliance did not include employee names or contact information in this list. On April 1, 2010 the EEOC requested additional information and records from Alliance. In response, on April 26, 2010, Alliance provided a “spreadsheet showing statistics for Alliance Residential from 2007 to current that shows how many Associates [were] voluntarily resigned for not returning from an FMLA leave of Absence, a Workers Compensation Leave of Absence or for not being eligible for FMLA.” The spreadsheet listed approximately 89 terminations but did not include employee names or contact information. In conjunction with this spreadsheet, Alliance included a letter explaining the company-wide policy of “voluntarily resigning] each Associate for medical reasons three days after an Associate’s FMLA leave has been exhausted if they do not return to work or are still under a physician’s care that leaves them unable to return to work.” (Alliance Letter dated April 26, 2010, attached as Exhibit 5 to Plaintiffs Application to Enforce an Administrative Subpoena.) It explained this policy has been “consistently applied,” and “no Associate has ever been granted additional time off.” Id.

On June 29, 2010, the EEOC requested more information regarding the 89 employees contained in the spreadsheet, including their names, positions, disability or medical situation, social security number, and contact information.3 The EEOC also requested the same information for all other individuals company-wide who exhausted leave for medical reasons from the time period May 1, 2009 to the then-present date as well as those individuals’ employment statuses. On November 29, 2010, the EEOC received from Alliance the names and addresses of five former Alliance employees terminated for not returning after their FMLA leave was exhausted from the time period six months before and six months after Ms. Laurel’s termination.

On December 1, 2010 and December 2, 2010, the EEOC served Alliance and its attorney with subpoenas4 making the following demands:

1. You included in your April 26, 2010, response to the Commission’s April 1, 2010, Request for Information a document entitled, “Voluntary Resignation Statistics re: No return from FMLA/WC LOA or ineligible for FMLA.” For each employment separation you cited in this document, provide the following:
a. name and position title of the employees
b. disability and/or medical situation which required the leave
c. employee’s social security number
*640d. employee’s last known home address and phone number
e. Fully explain reason for separation (for example, if you indicated “ineligible for FMLA” why was the employee ineligible for FMLA; not enough tenure, etc.)
2. If not included in your April 26, 2010, response, provide the same information requested above (item (a) though (e)) for all other individuals company-wide who have exhausted leave for medical reasons from the time period Jan. 1, 2009-the present date. Also indicate the employment status for these individual(s). If termination, indicate termination date and reason(s) for termination.

(Exhibit 13 to the Affidavit of Sheila Ward-Reyes.)

Alliance filed a Petition to Modify or Revoke the Subpoena, arguing: (1) the subpoena seeks information which is not relevant; (2) the subpoena constitutes harassment; (3) the subpoena seeks information which would invade the privacy of individuals who have no connection whatsoever to this matter; (4) the subpoena is unduly burdensome and is over-broad; and (5) the EEOC failed to follow its own procedures by not explaining why the information was required and how it was relevant to the Charge as outlined in Section 24.1(a) of the EEOC Compliance Manual. On May 12, 2011, the EEOC issued a determination denying Alliance’s request for modification or revocation of the subpoena and ordered Alliance to produce the information sought within ten days of the determination, but to date Alliance has not produced the requested information. The EEOC now seeks judicial enforcement of the administrative subpoena.

II. Analysis

The EEOC is empowered to investigate charges of disability discrimination to determine whether there is reasonable cause to believe an employer has engaged in an unlawful employment practice. 42 U.S.C. §§ 2000e-5(b), 12117(a). Charges of employment practices in violation of the ADA may be filed by an aggrieved individual or by a member of the EEOC. 42 U.S.C. § 2000e-5(b). In investigating a discrimination charge, the EEOC has a “broad right of access to relevant evidence.” Univ. of Pa. v. EEOC, 493 U.S. 182, 191, 110 S.Ct. 577, 107 L.Ed.2d 571 (1990). Specifically, the EEOC is granted access to “any evidence of any person being investigated or proceeded against that relates to unlawful employment practices covered by [the ADA] and is relevant to the charge under investigation.” 42 U.S.C. § 2000e-8(a). The EEOC has the authority to issue administrative subpoenas to obtain this evidence and may also request judicial enforcement of subpoenas. 42 U.S.C. § 2000e-9. In determining whether to enforce the EEOC’s subpoena, this Court considers: (1) whether the information requested is relevant, (2) whether the requests are burdensome or harassing, and (3) whether privacy or confidentiality concerns prohibit the subpoena of personal, confidential or medical information.5

*641A. Whether the Information Requested is Relevant

The first issue before the Court is whether the information regarding other employees terminated under Alliance’s company-wide medical leave policy is relevant to Ms. Laurel’s charge or if, as Alliance asserts, the request is over-broad. Where the information sought to be obtained by an administrative subpoena is not material or relevant to the issues presented in a given case, the subpoena should not be judicially enforced. EEOC v. Shell Oil Co., 466 U.S. 54, 64, 104 S.Ct. 1621, 80 L.Ed.2d 41 (1984); EEOC v. S. Farm Bureau Cas. Ins. Co., 271 F.3d 209, 211 (5th Cir.2001). The Court of Appeals for the Fifth Circuit has stated relevancy in the investigatory stage “is to be interpreted expansively.” New Orleans S.S. Ass’n v. EEOC, 680 F.2d 23, 26 (5th Cir. 1982).6

The EEOC contends the information sought in the administrative subpoena will enable the EEOC to determine if Ms. Laurel and other employees were subjected to disability discrimination, emphasizing the EEOC is afforded access to “virtually any material that might cast light on the allegations.” See Shell Oil Co., 466 U.S. at 68-69, 104 S.Ct. 1621. According to the Commission, Alliance may have violated the ADA by summarily terminating employees upon their exhaustion of FMLA leave pursuant to company-wide policy, without consideration given to the ADA’s prohibition of discharging individuals because of disability as well as the ADA’s “reasonable accommodation” and “individualized assessment” requirements. Ms. Laurel’s charge did not make reference to discrimination against other employees, but the EEOC argues the allegations contained in a charge do not narrowly circumscribe the EEOC’s investigation. Rather, the EEOC asserts the charge serves as “a jurisdictional springboard” enabling the Commission “to investigate whether the employer is engaged in any discriminatory practices.” EEOC v. Huttig Sash & Door Co., 511 F.2d 453, 455 (5th Cir.1975). According to the EEOC, the charge in this case is capable of supporting an EEOC investigation into both the discrimination described in the charge itself and into the surrounding circumstances, including a full probing of any evidence of discriminatory practices unearthed during the course of the initial investigation. Courts in other jurisdictions have held information pertaining to company-wide discrimination was relevant to an individual charge of discrimination.7

*642Alliance argues the information sought by the EEOC is irrelevant because it pertains to the leave and medical issues of employees company-wide who are not parties to the charge. Alliance points out the relevancy limitation should not be construed “in a fashion that renders that requirement a nullity.” Shell Oil Co., 466 U.S. at 68-69, 104 S.Ct. 1621. According to Alliance, the EEOC’s request constitutes the type of impermissible “fishing expedition” against which the relevancy requirement was designed to protect. See EEOC v. United Air Lines, Inc., 287 F.3d 643, 653 (7th Cir.2002). Alliance argues Ms. Laurel’s charge does not allege any practice or pattern of terminating disabled workers and the EEOC is simply looking for discovery for a potential class action against Alliance related to other former employees. Courts in other jurisdictions have held information pertaining to company-wide discrimination was not relevant to an individual charge of discrimination.8

As shown, other jurisdictions have reached opposite conclusions on the issue of whether company-wide information is relevant to an individual charge of discrimination. This Court must focus on Fifth Circuit precedent. In Georgia Power Company v. EEOC, the charging party alleged a company refused to hire her on the basis of race and sex. 412 F.2d 462, 468 (5th Cir.1969). In the course of its investigation of the alleged discrimination, the EEOC required the company to supply a list of the names, race, and sex of other job applicants. Id. The company argued the only relevant data were the records pertaining to charging party and the individual who was hired in preference to her. Id. The Fifth Circuit concluded the information pertaining to other job applicants was “clearly relevant to the charge under investigation,” reasoning as follows:

Discrimination on the basis of race or sex is class discrimination. The EEOC cannot reasonably be expected to discern such discrimination by examining data relating to two individuals____To limit the investigation to a single position would in many, if not most, instances severely restrict comparative study of the charged party’s hiring practices. Thus we think it clear that information concerning other positions is relevant to the investigation.

Id. This reasoning suggests the EEOC should be permitted to obtain information regarding other Alliance employees in the case at bar.

In another Fifth Circuit case, EEOC v. Packard Electric Division, three individual employees filed EEOC charges alleging race and sex discrimination. 569 F.2d 315, 317 (5th Cir.1978). The EEOC issued investigative subpoenas for broad statistical information, including the complete compa*643ny personnel list as well as every employee’s race, sex, job classification, labor grade, date of hire, and pay rate. Id. at 316. The district court enforced only part of the subpoena, limiting compliance to a specific department within the company. Id. The Fifth Circuit affirmed this limited enforcement. Id. Importantly, the court found this holding left it “open to the EEOC to show, if it can, the relevance of the plant-wide workforce [information] at some later stage in its investigation.” Id. at 318. In other words, the court noted it was possible for the EEOC to commence an investigation of an individual charge and then later show company-wide information would be relevant to the charge. The court wrote, “[i]n the context of an investigation of an individual complaint, ... the EEOC might well need a wide spectrum of statistical data in order to illuminate the general policies bearing on the complainant’s situation.” Id.

While the EEOC in Packard had not yet demonstrated the relevance of company-wide information, here, the relevance of this type of information was demonstrated by Alliance’s admission Ms. Laurel was terminated pursuant to a company-wide medical leave policy. The case at bar appears to be precisely the type of case in which later investigation reveals that a wider spectrum of data could “illuminate the general policies bearing on the complainant’s situation” as envisioned by the Fifth Circuit in Packard. Id. For the foregoing reasons, the Court concludes the information sought in the EEOC’s subpoena is relevant to Ms. Laurel’s charge. This conclusion is consistent with the Supreme Court’s reading of the relevancy requirement as “not especially constraining.” Shell Oil Co., 466 U.S. at 68-69, 104 S.Ct. 1621.

Alliance contends the EEOC could have issued a commissioner’s charge, which would arguably cover the information it now seeks. Indeed, an ADA discrimination charge may be filed by an aggrieved individual or by a member of the EEOC. 42 U.S.C. § 2000e-5(b). Without such a charge, Alliance contends the EEOC is not entitled to the company-wide information. One Fifth Circuit case provides an example of the type of information request requiring a separate commissioner’s charge. In EEOC v. Southern Farm Bureau Casualty Insurance Company, an employee filed an EEOC charge alleging the employer company had committed race discrimination. 271 F.3d 209, 210 (5th Cir. 2001). In the course of investigating, the EEOC became concerned the company had discriminated on the basis of sex as well as race and requested information regarding the sex of the company’s employees. Id. The Fifth Circuit held the requested information was irrelevant to the charge, which specified racial discrimination only. Id. at 211. It further noted “[w]hen the EEOC discovered ... possible evidence of sex discrimination ... [it] could have exercised its authority under 42 U.S.C. §§ 2000e-5(b), 2000e-6(e) to file a commissioner’s charge alleging sex discrimination, thereby freeing the EEOC to demand information [regarding potential sex discrimination].” Id. The case before this Court today is distinguishable in that the information sought by the EEOC here pertains to the same type of discrimination alleged in the charge. Ms. Laurel alleged discrimination on the basis of disability, and the EEOC now seeks information regarding discrimination on the basis of disability. Conversely, in Southern Farm Bureau Casualty Insurance Company, the EEOC sought information regarding an entirely different type of discrimination than was alleged in the employee’s charge. The Court concludes the EEOC need not file a separate commissioner’s charge alleging systematic company-wide discrimi*644nation in order to obtain the company-wide information sought here.

B. Whether the Requests are Burdensome or Harassing

The next issues before the Court are whether the requests present an undue burden to Alliance and whether the requests were made for the purpose of harassment, as Alliance contends. New Fifth Circuit cases have addressed when an EEOC subpoena is burdensome. New Orleans S.S. Ass’n v. EEOC, 680 F.2d 23, 26 (5th Cir.1982) (in a case where employees alleged discriminatory hiring, a subpoena demanding the name, race, and gender of the job applicants who had taken a hiring exam was not overly burdensome). Other jurisdictions have explained an administrative subpoena presents an undue burden when “ ‘compliance would threaten the normal operation of a respondent’s business.’ ” EEOC v. United Air Lines, Inc., 287 F.3d 643, 653 (7th Cir.2002). If a subpoena imposes a significant financial and administrative burden on the respondent, and there is only a tangential need for the information, the subpoena should not be enforced. See id. at 654-655. Respondents carry a “difficult burden of showing that the demands of a subpoena are unduly burdensome.”9 EEOC v. Konica Minolta Bus. Solutions U.S.A., Inc., 639 F.3d 366, 371 (7th Cir.2011) (holding company did not meet this burden when it merely alleged it would have to obtain, organize, and produce the materials requested in the subpoena).

The EEOC concedes compliance with the subpoena will be inconvenient for Alliance, but contends Alliance cannot meet its “difficult burden” of showing compliance is burdensome. On the other hand, Alliance argues the subpoena would require Alliance to manually review personnel files, which it alleges would entail hundreds of hours of work. The manual review of personnel files does not rise to the level of an undue burden. Alliance also contends compliance with the subpoena would require it to locate and interview employees who no longer work for Alliance. The EEOC does not have authority to require the production of information over which Alliance has no control.10 *645Therefore, to the extent compliance with the administrative subpoena requires Alliance to interview former employees over whom Alliance has no control or to whom Alliance has no access, that element of compliance is unduly burdensome. The EEOC may still require Alliance to compile information over which it does have control. This may include review of personnel files or interviews with current employees, among other things.

I. There is no Showing EEOC Acted Improperly or in Bad Faith

Alliance also alleges the EEOC’s subpoena was issued for the purpose of harassment. In light of “the broad investigative powers of the EEOC,” parties alleging an administrative subpoena is harassing must demonstrate a “strong showing of bad faith or improper behavior.” EEOC v. Roadway Express, Inc., No. H-78-73, 1978 WL 160, at *5 (S.D.Tex. Dec. 6,1978). Alliance asserts the request constitutes harassment because the EEOC already has the information sufficient upon which to render a decision on Ms. Laurel’s claims. The Court finds this argument insufficient to demonstrate a strong showing of bad faith. Therefore, Alliance has failed to establish the subpoena was issued for the purpose of harassment.

C. Whether Privacy or Confidentiality Concerns Prohibit the Subpoena of Personal, Confidential or Medical Information Requested

The final issue before the Court is whether privacy or confidentiality concerns prohibit the subpoena of personal, confidential or medical information. Alliance objects to the subpoena on the basis the request for former employees’ social security numbers and health information is private information not available to the general public. The Supreme Court and lower courts have rejected confidentiality arguments as a defense to an administrative subpoena. EEOC v. Associated Dry Goods Corp., 449 U.S. 590, 604, 101 S.Ct. 817, 66 L.Ed.2d 762 (1981) (holding defendant did not have “a categorical right to refuse to comply with the EEOC subpoena unless the Commission assured it that the information supplied would be held in absolute secrecy,” but noting each charging party could only see information in his or her own file); Univ. of Pa. v. EEOC, 493 U.S. 182, 192, 110 S.Ct. 577, 107 L.Ed.2d 571 (1990) (concluding confidentiality of academic peer review materials did not justify noncompliance with administrative subpoena); EEOC v. Bay Shipbuilding Corp., 668 F.2d 304, 312 (7th Cir.1981) (“confidentiality is no excuse for noncompliance”); EEOC v. Univ. of N.M., 504 F.2d 1296, 1303 (10th Cir.1974) (requiring compliance even where personnel files and records were “both confidential and extremely sensitive”).

The EEOC contends any legitimate concerns Alliance has regarding confidentiality are already appropriately addressed under the law governing EEOC investigations. It argues 42 U.S.C. § 2000e-5(b) prohibits the EEOC from making public charges of discrimination and imposes fines and imprisonment for anyone violating this rule of confidentiality. In addition, Section 2000e-8(e) prohibits the disclosure of any information obtained pursuant to the EEOC’s investigatory powers.11

*646The Supreme Court has explained the relationship between these statutory safeguards and confidentiality concerns:

Congress apparently considered the issue of confidentiality, and it provided a modicum of protection [Section 2000e-8(e) ]. Petitioner urges us to go further than Congress thought necessary to safeguard that value, that is, to strike the balance differently from the one Congress adopted. Petitioner, however, does not offer any persuasive justification for that suggestion.

Univ. of Pa., 493 U.S. at 192, 107 L.Ed.2d 571. The Court acknowledges the sensitivity of some of the information requested by the EEOC, specifically the medical information and social security numbers of former employees. To that end, the court notes the charging party, Ms. Laurel, is entitled to “see information in no file other than ... her own.” Associated Dry Goods Corp., 449 U.S. at 604, 66 L.Ed.2d 762. Other than this protection, the Court concludes the statutory safeguards already in place are sufficient to protect the medical and social security information requested by the EEOC.

III. Conclusion

For the foregoing reasons, Plaintiffs Application to Enforce Administrative Subpoena (docket # 1) is GRANTED.

It is so ORDERED.

Equal Employment Opportunity Commission v. Alliance Residential Co.
866 F. Supp. 2d 636

Case Details

Name
Equal Employment Opportunity Commission v. Alliance Residential Co.
Decision Date
Nov 18, 2011
Citations

866 F. Supp. 2d 636

Jurisdiction
United States

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