Over the last few months I have written about EEOC systemic investigations. As part of the investigative process, the EEOC will frequently issue administrative subpoenas. If you have ever responded to a request for production or a subpoena, you know they range from narrow and direct to broad and all encompassing, depending on the facts of the case.
In EEOC v. UPMC, a Certified Nursing Assistant (“CNA”) at the Heritage Shadyside nursing home was provided with numerous leaves of absences for her medical conditions – including heart disease, diabetes, cancer, angina, shortness of breath and severe depression. After exhausting one of her several entitlements to a personal leave of absence, the CNA failed to report to work and also failed to notify the Company. Therefore, the Company treated this failure as a voluntary resignation.
The CNA filed a Charge of Discrimination with the Equal Employment Opportunity Commission alleging that she “had been discharged because [she] did not return back to work on time from short-term disability.”
As part of its investigation, the EEOC issued a request for information and sought the identities of all employees who had been terminated in the Pittsburgh region in accordance with the personal leave of absence or disability policies. Following the Company’s objection, the EEOC sought through an administrative subpoena information relating to all employees – throughout all related corporate entities – who were terminated from July 1, 2008 to the present after 14 weeks of a medical leave of absence pursuant to the personal leave of absence or short term disability policies and/or any other applicable policy. The Company filed a petition to revoke the subpoena and objected to the overbroad nature. Not only was the time period of the subpoena unrelated to the dates of Charging Party’s employment, but the Charge itself was untimely. Moreover, the Company alleged the request was vague, unduly burdensome, and sought irrelevant information.
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. See 42 U.S.C. §§ 2000e-5(b), 12117(a) (expanding the EEOC’s power to investigate and address discrimination on the basis of disability). In connection with its investigation, the EEOC may issue administrative subpoenas. See id. § 2000e-9; 29 U.S.C. § 161(1). However, the EEOC’s statutory investigative authority is not plenary; the EEOC is entitled to access only evidence “relevant to the charge under investigation.” 42 U.S.C. § 2000e-8(a).
The Western District of Pennsylvania held that the EEOC’s subpoena constituted a fishing expedition and sought information that was not relevant to the underlying Charge.
There is no “commissioner’s charge” regarding these UPMC corporate policies and the Subpoena at issue cannot be justified by [the] charge.
The investigation into the identities of the employees was the EEOC’s only investigation to date, and uncovering the names would not “cast light” on any of the claims. The subpoena was not a reasonable effort to develop information related to the Charge of Discrimination.
1. a legal proceeding mainly for the purpose of interrogating an adversary, or of examining his or her property and documents, in order to gain useful information.
2. any inquiry carried on without any clearly defined plan or purpose in the hope of discovering useful information.
This case is yet another reminder that the EEOC’s authority is not unlimited. When investigating discrimination on the basis of disability, the EEOC has authority to investigate the Charge and facts uncovered during the investigation, but its authority is not unconstrained.