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

The case is EEOC v. University of Pittsburgh Medical Center (UPMC), decided on May 24, 2011 [2011 U.S. Dist. LEXIS 55311]. The facts of the case are as follows. The EEOC sued UPMC on behalf of Carol Gailey, a terminated Certified Nursing Assistant (CNA). In November 2007, Gailey, who had numerous health problems (heart disease, diabetes, cancer, angina, shortness of breath, and severe depression), notified UPMC that her health problems would force her to miss an unspecified period of work. Gailey, who was not at the time eligible for FMLA, was provided with a Personal Leave of Absence (PLOA) for several subsequent periods of time. She returned on February 5, 2008 and worked for 30 hours per week on temporary non-CNA assignments. She continued to receive short-term disability until they expired on May 4, 2008. She applied for long-term disability, which was declined based on her ability to do the part-time work. Gailey then filed a charge with the EEOC on June 17, 2009 claiming she was discharged because she did not return to work in timely fashion from short-term disability. She also alleged she was given no termination warning for failure to report.

Here’s where the action begins. In April 2010, the EEOC sent UPMC a request for information that included identification of all employees in the Pittsburgh region who were terminated in accordance with the PLOA and/or disabilities policies. After UPMC refused, the EEOC issued a subpoena. UPMC moved for revocation or modification of the subpoena, which the EEOC denied. The EEOC then sued for court enforcement of the subpoena.

In his ruling, District Court Judge Terrence V. McVerry, citing from the 3rd Circuit ruling in EEOC v. Kronos (2010), stated:

The EEOC is empowered to investigate charges of discrimination to determine whether there is reasonable cause to believe that an employer has engaged in an unlawful employment practice. …. In connection with its investigation, the EEOC may issue administrative subpoenas. However, the EEOC's statutory investigative authority is not plenary; the EEOC is entitled to access only evidence "relevant to the charge under investigation."

Judge McVerry further noted that Kronos Court established a five-part test. Thus, “to obtain enforcement of an administrative subpoena, and agency must demonstrate” the following:

1) its investigation has a legitimate purpose, 2) the inquiry is relevant to that purpose, 3) the agency does not already possess the information requested, 4) the agency has complied with relevant administrative requirements, and 5) the demand is not " 'unreasonably broad or burdensome.'"

After evaluating the subpoena, which included information beyond the time that Gailey was terminated, Judge McVerry ruled:

In sum, the Court concludes that the Subpoena at issue constitutes a " fishing expedition" to discover the existence of other potential claimants rather than a reasonable effort to develop information that is relevant to Gailey's charge of discrimination.

And so it goes … a bad month for the EEOC. You’ll recall that in Kronos, the 3rd Circuit refused to let the EEOC “fish” for evidence of racial discrimination in another ADA case.

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