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Equal Employment Opportunity Commission v. Southeast Food Services Company, LLC

United States District Court, E.D. Tennessee, Knoxville

March 27, 2017

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Petitioner,
v.
SOUTHEAST FOOD SERVICES COMPANY, LLC D/B/A WENDY'S, Respondent.

          MEMORANDUM AND OPINION

         This case is before the undersigned pursuant to 28 U.S.C. § 636, the Rules of this Court, and Standing Order 13-02.

         Now before the Court is an Application for an Order to Show Cause Why an Administrative Subpoena Should Not Be Enforced (“the Application”) [Doc. 1], filed by the Equal Employment Opportunity Commission (“the Commission”) on November 18, 2016. The parties appeared before the Court on February 28, 2017, for a hearing. Attorneys Mark Chen and Steven Lipsey appeared on behalf of the Commission. Attorney Chadwick Hatmaker appeared on behalf of Respondent. The Court has considered all the filings and the oral arguments presented at the hearing. For the reasons more fully explained below, the Court will DENY the Application.

         I. BACKGROUND

         The Commission is currently investigating a charge of employment discrimination filed by Christine Cordero against Respondent under Title VII of the Civil Rights Act of 1964. In the course of its investigation, the Commission issued a subpoena seeking information and documents regarding employment data. Respondent has refused to provide the requested information. For purposes of the Application, the following facts are not in dispute.

         On September 25, 2014, Ms. Cordero was hired by Respondent as a crew member to work at one of its fast-food locations. Approximately two weeks later on October 11, 2014, Respondent offered to promote Ms. Cordero to crew leader. In connection with the promotion, Ms. Cordero was asked to sign a general release, waiving all claims she may have against Respondent up to the date of the release's execution. For the past 20 years, it has been Respondent's promotion policy to require employees to sign a release of all claims as a condition of promotion. The release does not affect any future claims an employee may have. At the time Ms. Cordero was asked to sign the release, she did not have any claims. Nonetheless, she declined to sign the release because she felt that Respondent was discriminating against her merely by asking her to sign a waiver. Consequently, Ms. Cordero was not promoted due to her refusal to sign the release.

         Ms. Cordero continued to work for Respondent but filed a charge of discrimination with the Commission on December 5, 2014. The charge alleges that Respondent retaliated against Ms. Cordero by failing to promote her due to Ms. Cordero's refusal to sign the release. Although Ms. Cordero was not promoted, Respondent still gave her the 25-cent pay raise, as well as the same training, that accompanied the promotion. Ms. Cordero voluntarily resigned from her job on April 20, 2015.

         Having learned that Respondent required its employees to sign a release of claims as a condition of promotion, the Commission sent Respondent a pre-subpoena letter on June 9, 2015, notifying Respondent of its intent to expand its investigation. In addition, the letter requested various information about all former and current employees who worked for Respondent from December 4, 2012 to present. On February 18, 2016, after not receiving the information requested, [1] the Commission issued a subpoena which sought the same information identified in its pre-subpoena letter. Specifically, the subpoena seeks the identity and contact information of all (1) current and former employees since December 4, 2012, (2) current and former employees who signed a release of claims since December 4, 2012, and (3) current and former employees who were promoted since December 4, 2012.[2] The foregoing requests also seek information related to the employees' dates of hire, promotion, advances, and termination, reasons for termination, and current and former job titles. Moreover, the subpoena requests copies of all releases Respondent had required its employees to sign in order to receive a promotion and copies of various documents relating to information about the system or software components of Respondent's Human Resource Information System.[3]

         Respondent continued to object to the subpoenaed information, prompting the Commission to file the instant Application with the Court on November 18, 2016. Respondent filed a response in opposition on February 22, 2017.[4]

         II. THE COMMISSION'S INVESTIGATIVE POWER

         The Commission is empowered to investigate charges of discrimination and enforce Title VII of the Civil Rights Act. 42 U.S.C.§ 2000e-5(a)-(b). Administrative subpoenas may be used to assist investigative efforts in uncovering acts of discrimination. See Id. § 2000e-9 (incorporating the provisions of 29 U.S.C. § 161, which allows the issuance of subpoenas to parties under investigation). Specifically, the Commission has authority to serve subpoenas to gain “access to . . . any evidence of any person being investigated or proceeded against that relates to unlawful employment practices . . . and is relevant to the charge under investigation.” Id. § 2000e-8(a). While “courts have generously construed the term ‘relevant' and have afforded the Commission access to virtually any material that might cast light” on the allegations against the employer, ” the Commission's investigative authority should not be construed so broadly as to render the relevancy requirement “a nullity.” E.E.O.C. v. Shell Oil Co., 466 U.S. 54, 68-69 (1984). “The EEOC has the burden to demonstrate the relevancy of the information sought in the subpoena.” E.E.O.C. v. Dillon Cos., 3310 F.3d 1271, 1274 (10th Cir. 2005).

         III. ANALYSIS

         In this case, the Commission argues that “[i]t is undeniable that the requested information ‘might cast light' on the allegations against the employer.” [Doc. 2 at 8]. Because Respondent admitted it did not promote Ms. Cordero due to her refusal to sign a release of all claims and that it has required all employees to sign a similar release prior to being promoted, the Commission asserts that it “requires the contact information for Respondent's employees to mail questionnaires in order to determine if those employees gave up any claim in order to receive promotions.” [Id.].

         Respondent contends that the sole issue with regard to the instant charge is whether Respondent's uniform policy regarding a signed release as a condition of promotion is sufficient to sustain Ms. Cordero's Title VII retaliation claim, and that the information sought for the questionnaires is neither relevant nor necessary to the Commission's investigation.

         Relevancy is demonstrated when the Commission shows that it has a “realistic expectation rather than an idle hope that the information requested will advance its investigation.” E.E.O.C. v. Konica Minola Bus. Sols. USA, Inc., 639 F.3d 366, 369 (7th Cir. 2011) (quotations omitted). It is not immediately clear to the Court how the information sought by the subpoena will advance the Commission's investigation. The Commission is investigating an individual charge of discrimination: that Respondent denied Ms. Cordero a promotion after she refused to sign the release. There are no other additional charges of retaliatory discrimination and no other charging party besides Ms. Cordero. Moreover, there is no dispute that Respondent asked Ms. Cordero to sign the release, that Respondent's longstanding policy has been to require employees to sign a release as a condition of ...


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