United States District Court, E.D. Tennessee, Knoxville
MEMORANDUM AND OPINION
case is before the undersigned pursuant to 28 U.S.C. §
636, the Rules of this Court, and Standing Order 13-02.
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.
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
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.
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,
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,
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. 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
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.
THE COMMISSION'S INVESTIGATIVE POWER
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).
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.].
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.
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 ...