ARIZONA DISTRICT COURT LIMITS EEOC'S SUBPOENA REQUEST

by Art Gutman Ph.D., Professor, Florida Institute of Technology

The case is EEOC v. McLane, decided on November 19, 2012 [2012 U.S. Dist. LEXIS 164920]. The facts are that a female employee (Damiana Ochoa) failed the Industrial Physical Capacity Services Physical Capacity Exam (IPCS PCE) three times when she returned to work after her maternity leave. Ochoa alleged that the test violates both Title VII’s Pregnancy Discrimination Act and the ADA. She also alleged that the IPCS PCE is given for all positions to all new hires and all employees returning to work after medical leave. In support of this claim, the EEOC issued a Subpoena requesting “pedigree information”, including:

[N]ame, gender, date of birth, social security number and contact information for every person who took the test, along with the reason the person took the test, the person's score on the test, and any adverse action that McLane took based on the person's performance on the test. 

The Subpoena, which originally applied to only the Sunwest subsidiary of McLane, was subsequently broadened to include all McLane subsidiaries nationwide. McLane objected on grounds that the request was “overly broad and unduly burdensome”, and petitioned to revoke the subpoena. District Court Judge G. Murray Snow evaluated the petition in terms of three prongs required for a valid EEOC subpoena: (1) that it is authorized by Congress; (2) it was issued in a procedurally proper way; and (3) and that the requested information is relevant to the EEOC’s investigation. Judge Snow had no issues with Prong 2, but ruled the subpoena violated Prong 1, and at least for the present time, Prong 3 as well.

Regarding Prong 1, Judge Snow ruled that the only relevant charge in this case is sex discrimination. He ruled that there is no basis for an ADA charge because pregnancy is not, under ordinary circumstances, a disability. Therefore, Ochoa was not an aggrieved party to an ADA charge. Furthermore, no other potentially aggrieved parties were named. Accordingly, Judge Snow ruled:

To ignore the plain language of the statute and to allow the EEOC to investigate a generalized charge of discrimination that is untethered to any aggrieved person would invite the oft-cited "fishing expedition" … to become a full-blown harvest operation. If anyone could file a charge--devoid of a specific aggrieved party--that asserts that such-and-such policy discriminates on any number of bases, the E.E.O.C. would have close to unlimited jurisdiction, and it would make virtually limitless any investigation the EEOC wished to undertake. 

Regarding Prong 3, Judge Snow ruled that the “pedigree information” requested is not relevant to the sex discrimination charge at this time because McClane had already provided (or will provide) relevant information on gender absent the personal identifiers. However, Judge Snow left often the prospect of requiring McClane to submit the personal information if they find evidence of adverse impact on sex based on the McLane had already provided (or will provide).

Judge Snow’s ruling adds to prior limitations placed on EEOC Subpoena powers in district court rulings in University of Pittsburgh Medical Center and EEOC v. Kronos (see Alerts dated May 31, 2011). However, the district court ruling in EEOC v. Kronos was reversed by the 3rd Circuit (see Alert dated September 24, 2010), and it is of course possible the EEOC will appeal the ruling in the McLane case.

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