Opinion
NO: 00-2153 Section: "J"(1)
October 23, 2000
Before the Court is an Application for Order to Show Cause Why a Subpoena Should Not Be Enforced (Rec. Doc. 1) filed by the Equal Opportunity Employment Commission ("EEOC"). Respondent, Southern Farm Bureau Casualty Insurance Company ("Southern") opposes the application. The application, set for hearing on August 16, 2000, is before the Court on briefs without oral argument. For the following reasons, the application is denied.
I. Factual and Procedural Background
This is an action for enforcement of an administrative subpoena duces tecum issued by EEOC pursuant to Title VII of the Civil Rights Act of 1964. On July 9, 1998, L.C. Thomas II ("Thomas") filed a complaint with the EEOC charging Southern, his employer, with racial discrimination. EEOC's Exhibit A. The complaint alleged that Thomas had been rejected for a position as a claims representative because he is an African American.
EEOC notified Southern of the charge and began its investigation. Over the course of the next year, EEOC propounded on Southern various requests for information pertaining to Thomas's charge. Southern denied the charges but complied with all of EEOC's requests. However, by letter dated February 1, 2000, EEOC requested information related to the gender of Southern's claims representatives in addition to their race. EEOC's Exhibit I. When Southern objected to providing information related to gender. EEOC followed up the request with a letter to Southern stating that EEOC was expanding the scope of its investigation "to include the issue of failure to hire females as Claims Representatives/Claims Adjusters." EEOC's Exhibit J. Southern nonetheless refused to comply with the request arguing that the information sought was "clearly outside the scope of [Thomas's] charge of race discrimination, and therefore, not relevant to [the current] investigation." EEOC's Exhibit K.
EEOC then issued an administrative subpoena seeking to compel Southern to provide the gender-related information. Rather than comply with the subpoena, Southern filed a Petition for Revocation of Subpoena with the EEOC seeking to have the subpoena revoked. EEOC's Exhibit M. EEOC, acting through its executive officer, denied Southern's request. EEOC'S denial was based on its assertion that its subpoena power extends to any evidence that EEOC can lawfully subpoena, and that the gender-related information was relevant to EEOC's expanded investigation into gender discrimination. Southern nevertheless declined to provide EEOC the gender-related information it sought. EEOC then filed the instant application seeking judicial enforcement of its administrative subpoena.
II. Discussion
A. The Parties' Contentions
Thomas filed a charge with the EEOC alleging that Southern had discriminated against him and other African Americans applying for claims representative positions on account of their race. However, the information covered by the subpoena EEOC seeks to enforce pertains to gender. Citing 42 U.S.C. § 2000e-8 (a), infra, Southern argues that the gender information is outside the scope of EEOC's investigatory authority because the gender information is not relevant to Thomas's charge of racism. EEOC does not argue that the gender information is relevant to Thomas's charge of racism, rather it contends that the information is relevant to its "expanded investigation" into whether Southern has discriminated against females in addition to African Americans when filling claims representatives positions, and that Southern's focus on the specific allegations in Thomas's charge is misplaced.
B. Applicable Law
Title VII of the Civil Rights Act of 1964, as amended prohibits an employer from discriminating because of an individual's "race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2. The EEOC is the agency with primary responsibility for enforcing the provisions of Title VII. 42 U.S.C. § 2000e-5 (a); EEOC v. Shell Oil Co., 466 U.S. 54, 61-62, 104 S.Ct. 1621, 1627, 80 L.Ed.2d 41 (1984) . However, unlike some other investigatory agencies, EEOC does not have plenary authority to demand information or records that it considers relevant to its area of jurisdiction. EEOC v. Hearst Corp., 103 F.3d 462, 464 (5th Cir. 1997); Shell Oil, 466 U.S. at 64, 104 S. Ct. at 1629. Rather, an EEOC investigation into alleged violations of Title VII must begin with the filing of a formal charge against the employer, either by an aggrieved individual or by a member of the EEOC itself. Hearst, 103 F.3d at 464 (citing 42 U.S.C. § 2000e-5 (b), 2000e-6(e)). Only after a formal charge is filed, is the EEOC empowered to investigate. Id. at 465. Once the investigation begins, the EEOC is entitled to obtain "any evidence of any person being investigated . . . that relates to unlawful employment practices and is relevant to the charge under investigation." 42 U.S.C. § 2000e-8 (a) (emphasis added).
For instance, in Shell Oil, the Court points to the Federal Trade Commission's investigative authority as outlined in 15 U.S.C. § 43, 46(b). Id. at 64 n. 14, 104 S.Ct. at 1629.
42 U.S.C. § 2000e-8, Investigations, provides in pertinent part:
In connection with any investigation of a charge filed under section 2000e-5 of this title, the Commission or its designated representative shall at all reasonable times have access to, for the purposes of examination, and the right to copy any evidence of any person being investigated or proceeded against that relates to unlawful employment practices covered by this subchapter and is relevant to the charge under investigation.42 U.S.C. § 2000e-8(a).
In its efforts to obtain any such evidence, the EEOC has authority to issue administrative subpoenas and may request judicial enforcement of those subpoenas. 42 U.S.C. § 2000e-9; 29 C.F.R. § 1601.16 (3);Shell Oil, 466 U.S. at 63, 104 S.Ct. at 1628. In order to obtain judicial enforcement of one of its subpoenas, EEOC has the burden of showing that the information sought is relevant to the EEOC charge filed against the employer. See New Orleans Steamship Ass'n v. EEOC, 680 F.2d 23, 26 (5th Cir. 1982) ; EEOC v. Packard Elec. Div.. GMC, 569 F.2d 315, 318 (5th Cir. 1978)
In Shell Oil, the Supreme Court granted certiorari to consider the requisite link between the charge filed against an employer and the EEOC'S ability to obtain judicial enforcement of a subpoena. The controversy in that case centered around the requisite specificity (facts and dates) that must appear in the charge before EEOC can enforce a suspoena seeking information relevant to that charge. The Court began by noting that the charge and the subpoena are "closely related" because 42 U.S.C. § 2000e-8 (a) (allowing EEOC access only to evidence relevant to the charge under investigation) ties EEOC's investigative authority to the specific charges filed against the employer. Shell Oil, 466 U.S. at 64, 104 S.Ct. at 1628-29. The Court then reviewed the legislative history of Title VII which revealed Congress's unequivocal intent to set limits on EEOC's investigative authority. Shell Oil, 466 U.S. 64-65, 104 S.Ct. at 1629-30. Recognizing Congress's intent to set bounds on EEOC's investigative authority the Court stated:
In construing the EEOC's authority to request judicial enforcement of its subpoenas, we must strive to give effect to Congress' purpose in establishing a linkage between the Commission's investigatory power and charges of discrimination. If the EEOC were able to insist that an employer obey a subpoena despite the failure of the complainant to file a valid charge, Congress' desire to prevent the Commission from exercising unconstrained investigative authority would be thwarted.Shell Oil, 466 U.S. at 64, 104 S.Ct. at 1629.
The Court then held that a valid charge is a jurisdictional prerequisite to judicial enforcement of an EEOC subpoena. Id. And 42 U.S.C. § 2000e-8, with its mandate of relevance, serves to limit the scope of evidence subject to a judicial enforcement proceeding. See id. at 37, 104 S.Ct. 1630. Nevertheless, the Court noted that courts should not construe relevancy so narrowly that EEOC's ability to investigate charges of systemic discrimination would be impaired. Id. at 68, 104 S.Ct. at 1631. On the other hand, courts should not construe relevancy so broadly as to render Congress's express intent, as reflected in 42 U.S.C. § 2000e-8 and the legislative history of Title VII, to limit EEOC's investigative authority nugatory. See id. at 70, 104 S.Ct. at 1632.
The Fifth Circuit Court of Appeals has not addressed the issue of relevancy in the context of an EEOC subpoena enforcment action in the wake of Shell Oil. However even prior to Shell Oil, the court found no error in the district court's decision to deny enforcement of an EEOC subpoena seeking facility-wide workforce information when the pending charges consisted of individual instances of race and gender discrimination. Packard, 569 F.2d at 317. The court found it "not immediately evident" that work-force breakouts had any bearing on the subject matter of the individual complaints. Id. The Fifth Circuit decided as such notwithstanding contrary precedent in other circuits. See e.g., Blue Bell Boots, Inc. v. EEOC, 418 F.2d 355 (6th Cir. 1969) (holding that information outside that pertinent to the individual's complaint is relevant because it could show a pattern of discrimination like that contained in the charge).
In Shell Oil, the Court cited Blue Bell Boots as an example of how courts have generally construed the concept of relevance. 466 U.S. at 68, 104 S.Ct. at 1631. In a recent decision, the court in EEOC v. Roadway Express. Inc., 75 F. Supp. 2 d 767, 770 (N.D. Ohio 1999), interpreted the Court's cite to Blue Bell Boots as one of approval of the reasoning employed in that decision.
Then, just four years later, but still prior to Shell Oil, the Fifth Circuit reversed the district court's denial of an EEOC subpoena seeking race and gender information related to a pre-employment examination. New Orleans Steamship Assoc., 660 F.2d at 25. During the course of its opinion the court stated that "relevancy at this stage [subpoena enforcement], is to be interpreted expansively, and referred to "the broad spectrum of relevance." Id. at 26. However, the information sought by the subpoena was squarely and unarguably within the scope of the charge under investigation. See id. at 24-25.
While the Court was unable to locate any case squarely on point with the issues presented in the instant case, in EEOC v. Citicorp Diners Club, Inc., 985 F.2d 1036, 1039 (10th Cir. 1993), the court found that information on national origin was relevant to a charge alleging race and gender discrimination. That court reasoned that relevancy should be interpreted broadly because EEOC's role is to "vindicate the public interest which is broader than that of the charging parties." Id. (quoting EEOC v. Kimberly-Clark Corp., 511 F.2d 1352 (6th Cir. 1975)). However, any persuasive potential that the decision might have had is severely diminished by that court's inexplicable failure to address or even cite the Supreme Court's Shell Oil opinion.
Against this backdrop of jurisprudence, the Court now turns its attention to the case at hand. As previously noted, EEOC advances no argument that the gender information is relevant to Thomas's charge of racism. Nor is there any other information contained in the documentary evidence submitted by EEOC in support of its application to in any way suggest how the gender information could possibly shed light on the allegations currently pending against Southern. While the Court cannot and need not say that gender information such as that sought by EEOC in this case would always be irrelevant to a charge of racial discrimination, it suffices to say that in this particular case EEOC has failed to meet its burden of establishing the relevancy of the information it seeks to the charges filed by Thomas.
Nevertheless, EEOC argues that the gender information is relevant to its "expanded investigation, " into gender discrimination. As an initial observation, while EEOC's application memorandum is replete with citation to legal authority, none of those authorities stand for the proposition that EEOC can expand an investigation beyond the arguable relevance of the pending charge based on information it uncovers during the course of an existing charge.
Furthermore, EEOC's assertion is contrary to Congress's intent to limit EEOC's investigative authority to those matters "relevant to the charge under investigation, " as explained by the Court in Shell Oil. Under EEOC's reasoning, a single charge filed against an employer would serve as a veritable key, opening the door into any matter that EEOC saw fit to investigate, regardless of the allegations in the original charge. The fishing expeditions that could result from such an approach are clearly contrary to 42 U.S.C. § 2000e-8 and the Shell Oil rationale.
Two other points militate against EEOC's assertion that it can subpoena information relevant to an "expanded investigation" absent a relevant pending charge. First, Title VII gives EEOC the authority to file its own charges containing allegations of discrimination against the employer. 42 U.S.C. § 2000e-5 (b); § 2000e-6(e); Shell Oil, 466 U.S. at 62, 104 S.Ct. at 1627-28; Hearst, 103 F.3d at 464-65. As long as the charge is in writing, under oath, and conforms to EEOC requirements, such a charge gives EEOC the same investigative authority as a charge filed by an aggrieved individual such as Thomas. See id. That EEOC has this authority under Title VII is further indication that EEOC cannot simply demand information not relevant to a pending charge without availing itself of the avenues already provided in Title VII.
Second, EEOC's position is also weakened by the well-established law of this circuit that a Title VII complaint filed against an employer, a procedural step significantly beyond that of a Title VII investigatory subpoena, is itself constrained by the scope of the initial charges against the employer — regardless of what the investigation unfolds. Thomas v. Texas Dep't, 220 F.3d 389 (5th Cir. 2000); see Hearst, 103 F.3d at 463.; Sanchez v. Standard Brands. Inc., 432. F.2d 455 (5th Cir. 1970); Solorzano v. Shell Oil Co., 2000 WL 1252555 (E.D.La.);EEOC v. Winn-Dixie. Inc., 1976 WL 568 (E.D. La.). Given that EEOC cannot sue Southern absent a valid charge, and given that Thomas's charge could not serve as the basis for a suit against Southern alleging claims of gender discrimination, it follows that EEOC cannot judicially enforce a subpoena seeking information irrelevant to that charge by merely asserting that it has expanded its investigation into other matters.
A suit by Thomas would be complicated even further by the fact that the Fifth Circuit has previously held that the complainant must meet the standing requirements of Article III when filing suit based on an EEOC charge of discrimination. EEOC v. Mississippi College, 626 F.2d 477, 483 (5th Cir. 1980) . It is certainly questionable whether Thomas would have standing to assert the rights of his female coworkers.
In sum, the Court concludes that EEOC has failed to meet its burden of showing that the information it seeks to subpoena is relevant to the charge it currently has authority to investigate. Consequently, EEOC cannot obtain judicial enforcement of its administrative subpoena. Accordingly,
EEOC's Application for Order to Show Cause Why a Subpoena Should Not Be Enforced is DENIED.
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