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]
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
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.
Read more articles on employment law issues
at Employment and the
Law, a blog by Ashley Kasarjian
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