Back To The Drawing Board: Tenth Circuit Denies EEOC Subpoena Request Seeking To Expand Individual Charge Into Pattern-or-Practice Investigation

by Orrick - Global Employment Law Group
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“[A] single discriminatory act does not, by itself, warrant a broader patter-or-practice investigation.” That was the conclusion the Tenth Circuit reached recently when it affirmed a federal district court’s denial of an EEOC subpoena request.  Although the Tenth Circuit disagreed with part of the lower court’s reasoning, it ultimately determined the EEOC’s request was flawed on several grounds.

The dispute arose when the EEOC issued a subpoena to TriCore Reference Laboratories seeking information related to an individual employee’s claims of disability and pregnancy discrimination. The employee, a phlebotomist, requested accommodations to her work schedule stemming from her rheumatoid arthritis – which she claimed was worsened by her pregnancy.  After reviewing her doctors’ notes recommending she sit for at least 75% of her shift and avoid exposure to infectious diseases, TriCore determined she could not safely perform the essential functions of her job.  It offered her the opportunity to apply to other positions within the company, but when she did nothing, TriCore terminated her.

In response, she filed a charge with the EEOC alleging disability and pregnancy discrimination. The EEOC interpreted TriCore’s account of asking her to apply for vacant positions rather than reassigning her as an admission that it failed to provide a reasonable accommodation.  The agency then became convinced that TriCore had a companywide practice of refusing to provide reasonable accommodations and, citing its own Compliance Manual, sought to expand the scope of its investigation.  Specifically, the agency requested complete lists of employees who had sought an accommodation for disability or pregnancy over a three-year time period.  When TriCore refused to comply with the subpoena, the EEOC sought enforcement in the U.S. District for the District of New Mexico.  The district court, though, denied the request on that grounds that: (1) the EEOC failed to show how pattern or practice evidence was relevant to the individual employee’s charge and (2) the pregnancy request information would not provide evidence of relevant comparators.

On appeal, the Tenth Circuit determined the lower court did not abuse its discretion in denying the EEOC’s request and affirmed. Specifically, the Tenth Circuit agreed with the lower court that because the EEOC’s disability request referenced only the individual charge and did not suggest that it was investigating whether TriCore had a pattern or practice of discrimination, the information was not relevant to the EEOC’s claims.  Further, the EEOC could not rely on its letter informing TriCore it was expanding its investigation because, quite simply, “The letter is not a ‘charge’ of discrimination.”  (Similarly, the letter only referred to the individual employee’s case and said nothing to suggest the agency’s actions were related to a company policy either.)  Moreover, the EEOC could not rely on its Compliance Manual because that guidance does not provide a statutory basis to expand an agency investigation.

The Tenth Circuit diverged in its interpretation of the pregnancy-related request, though. It recognized the EEOC’s pregnancy-related request sought information that could potentially be relevant evidence that an employer accommodated non-pregnant employees, making the company’s reason for termination pretextual.  However, the EEOC never presented this relevance argument at the district court level.  Even if it had, the Tenth Circuit noted the agency’s request would be overbroad because it also sought information about pregnant employees who never sought an accommodation.  Therefore, the Tenth Circuit affirmed the lower court’s judgment overall.

The case is Equal Employment Opportunity Commission v. TriCore Reference Laboratories, No. 16-2053, 2017 U.S. App. LEXIS 3481 (10th Cir.). The case demonstrates that there are still many limiting principles an employer may utilize to narrow the scope of an EEOC investigation and mitigate its exposure to liability.  Furthermore, the U.S. Supreme Court recently agreed with the Tenth Circuit’s deferential approach.  In McLane Co. Inc. v. Equal Employment Opportunity Commission, No. 15-1248, 2017 U.S. LEXIS _ (Apr. 3, 2017), the Court determined the Ninth Circuit erred in applying a de novo standard in its review and stated the abuse of discretion standard is most appropriate when an appellate court reviews a trial court’s decision of whether to enforce an EEOC subpoena.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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