visaSeyfarth Synopsis:  Hispanic employees of a poultry processing plant alleged harassment and abuse on the job. The company claimed that the employees’ allegations were fabricated in order to obtain U visas, which are available to immigrant abuse victims who assist in government investigations. Over the plaintiffs’ objections, the district court allowed the company discovery related to the employees’ U visa applications. On an interlocutory appeal, the U.S. Court of Appeals for the Fifth Circuit vacated the district court’s discovery order and remanded the case to the district court with instructions to devise an approach to the U-visa discovery that ensures that immigrant victims are not deterred from reporting their abuse.  The ruling is important to any employers involved in workplace litigation with immigrant workers.

***

In Cazorla v. Koch Foods of Missi., LLC, No. 15-60562 (5th Cir. Sept. 27, 2016), the EEOC filed a complaint in the U.S. District Court for the Southern District of Mississippi on behalf of Hispanic employees who alleged that they suffered sexual harassment and physical abuse while working at a poultry processing plant. The company claimed that the employees, many of whom are undocumented aliens, made up their accusations in hopes of obtaining immigration benefits under the U-visa program. The program offers temporary nonimmigrant status to victims of substantial physical or mental abuse. The district court allowed the company limited discovery related to the employees’ U-visa applications and the EEOC, consequently, sought interlocutory review of the district court’s discovery orders. On appeal, the Fifth Circuit vacated and remanded the district court’s discovery rulings, ordering the district court to craft a discovery order that allows U-visa discovery but avoids deterring immigrant victims of abuse from using the U-visa program.

This ruling demonstrates that courts recognize that impeachment evidence regarding an employee’s motivation for bringing a claim is a key defense for employers facing workplace harassment allegations. Where that defense intersects with, or potentially frustrates, a statutory program, courts will roll up their sleeves to fashion relief that balances the competing concerns. Employers, therefore, should not be deterred from utilizing a defense simply because doing so conflicts with the purpose behind a statutory regime. A middle ground can be achieved through protective orders and customized discovery orders.

Case Background

Hispanic employees at a poultry processing plant in Mississippi (the “Company”) claimed that for roughly four years they suffered routine abuse at work. The Company’s supervisors allegedly groped female workers, and in some cases assaulted them more violently; offered female workers money or promotions for sex; made sexist and racist comments; and otherwise physically abused workers of both sexes. Id. at 1.

The EEOC filed suit on the employees’ behalf against the Company in the U.S. District Court for the Southern District of Mississippi. In its defense, the Company claimed that the employees, who are mostly undocumented aliens, invented their allegations in order to help secure U visas. The U-visa program offers temporary nonimmigrant status to victims of substantial physical or mental abuse and U-visa holders may apply for a “green card” after three years. Id.

To obtain concrete evidence of this malfeasance, the Company served discovery requests seeking the production of records relating to the employees’ efforts to obtain U visas. Id. The plaintiffs opposed the discovery requests because the discovery would necessarily reveal the immigration status of any employee who applied for a U visa, as well as that of their families. Id. at 2-3.

Over the plaintiffs’ objections, the district court allowed the discovery but with two limitations. First, the district court excused the EEOC from complying with the discovery requests because 8 U.S.C. § 1367 barred the EEOC from revealing any information related to the claimants’ U visa applications. Id. at 3. At the same time, the district court found § 1367 did not similarly excuse the claimants. Id. The district court then held that Rule 26 did not “preclude U-visa discovery from the individual claimants, reasoning that the discovery was relevant to the claimants’ credibility . . . and that the relevance of the information sought outweighed the in terrorem effect of producing it.” Id. The employees, unlike the EEOC, were therefore required to comply with the discovery requests subject to the district court’s second limitation: a protective order that prohibited the use of the discovered information for purposes unrelated to the lawsuit and barred the Company from sharing the information with law enforcement, unless the failure to do so was a criminal offense. Id.

After losing its discovery battle, the EEOC sought interlocutory review of the district court’s discovery orders under 28 U.S.C. § 1292(b). The district court certified the orders for interlocutory appeal and the Fifth Circuit granted review.

The Decision

On appeal, the U.S. Court of Appeals for the Fifth Circuit vacated and remanded the district court’s discovery orders. Id.

The Fifth Circuit first determined that the district court properly decided that the EEOC, but not the employees, was exempt from having to produce U-visa information. Id. at 7. Unlike the EEOC, the claimants were not bound to the confidentiality provisions in 8 U.S.C. § 1367 and its implementing regulations. Id at 7.

Having decided that § 1367 did not preclude U visa discovery from the individual claimants, the Fifth Circuit next examined the district court’s Rule 26(c) analysis. Rule 26(c) allows the court to issue an order restricting discovery “to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” Id. at 10.  In applying Rule 26(c), the Fifth Circuit explained that federal courts balance and compare the hardship to the party against whom discovery is sought against the probative value of the information to the other party. Id. Courts also weigh relevant public interests in this analysis. Id.

The Fifth Circuit, for the most part, agreed with the district court’s Rule 26(c) balancing analysis. The Fifth Circuit, for instance, explained that U-visa discovery was relevant and probative of potential fraud and had significant impeachment value; that the claimants had reasonable fears that disclosure of their U-visa information could lead to them being reported to authorities; and that, although allowing the discovery would create some delay and hardship, the plaintiffs could seek relief for any unduly burdensome demands. Id. at 14-16.

In sum, the Fifth Circuit noted that “the district court’s analysis of the harm that U visa discovery might cause the claimants was imperfect, but not critically so.” Id. at 17. “More pressing” to the Fifth Circuit, however, was “that the district court did not address how U-visa litigation might intimidate individuals outside this litigation, compromising the U visa program . . . .” Id.

On this issue, the Fifth Circuit noted that the district court considered only the immediate chilling effect of U-visa discovery on the individual claimants. Id. “Those individuals,” the Fifth Circuit explained, “are not the only ones who might be affected by the disclosure of the claimants’ U visa information.” Id. Indeed, the Fifth Circuit expressed concern that allowing U- visa discovery “may sow confusion over when and how U-visa information may be disclosed, deterring immigrant victims of abuse . . . from stepping forward and thereby frustrating Congress’s intent in enacting the U visa program.” Id.

Based on these concerns, the Fifth Circuit vacated the district court’s discovery orders and instructed the district court to “devise an approach to U-visa discovery that adequately protects the diverse and competing interests at stake.” Id at 18.  At a minimum, the Fifth Circuit held that U-visa discovery must not reveal to the Company the identities of any visa applicants and their families, at least in the liability phase—where the probative value of the U-visa evidence is not affected by the identity of the claimants. Id.

Implication For Employers

The take away for employers is that, although defense strategies sometimes include discovery topics that conflict with a statutory regime, a sensible middle ground can be achieved. A willingness to agree to discovery limitations and customized protective orders goes a long way to demonstrating that the discovery is sought for legitimate purposes—despite such discovery’s unintended impact on parties outside the lawsuit.

Readers can also find this post on our EEOC Countdown blog here.

thVSDVQKXMBy Gerald L. Maatman, Jr. and Alex W. Karasik

Seyfarth Synopsis: In the remand of the high profile Mach Mining litigation that was before the Supreme Court in 2015, a district court denied the EEOC’s motion for reconsideration of a discovery order pertaining to the scope of the EEOC’s investigation, and denied the EEOC’s motion to amend its complaint to add as defendants seven entities who did not receive actual notice or an opportunity to conciliate.

***

After the remand of the Mach Mining litigation from the U.S. Supreme Court, this hallmark case regarding the scope of review of the EEOC’s pre-suit duties under Title VII  is still evolving and shaping the landscape of EEOC litigation.  In EEOC v. Mach Mining, LLC, No. 11-CV-00879 (S.D. Ill. Aug. 22, 2016), Judge Gilbert of the U.S. District Court for the Southern District of Illinois recently denied the EEOC’s motion for clarification or reconsideration of a prior discovery order, while granting in part and denying in part the EEOC’s motion to amend its first amended complaint by adding several entities as defendants.

It is imperative that employers facing Title VII lawsuits brought by the EEOC follow this game-changing litigation, which provides insight into how the EEOC’s compliance with its pre-suit conciliation obligations shapes the parameters of EEOC litigation.  For further analysis of the Supreme Court’s decision and subsequent proceedings, check out our previous blog posts here and here.

Case Background

The EEOC brought suit on behalf of a class of female applicants who had applied for non-office jobs at Mach Mining.  Id. at 1.  The EEOC claimed that Mach Mining had never hired a single female for a mining-related position and did not even have a women’s bathroom on its mining premises.  The complaint alleged that Mach Mining’s Johnston City, Illinois, facility engaged in a pattern or practice of unlawful employment practices since at least January 1, 2006, in violation of Title VII, by engaging in sex discrimination.

In its answer, Mach Mining asserted the affirmative defense that the EEOC failed to conciliate in good faith.  The issue was ultimately resolved before the U.S. Supreme Court, which held “that a court may review whether the EEOC satisfied its statutory obligation to attempt conciliation before filing suit. But we find that the scope of that review is narrow, thus recognizing the EEOC’s extensive discretion to determine the kind and amount of communication with an employer appropriate in any given case.”  Id. at 2 (quoting Mach Mining, LLC v. EEOC, 135 S.Ct. 1645, 1649 (2015)).

Following the Supreme Court’s decision, Mach Mining filed a renewed motion for partial summary judgment, which the Magistrate Judge denied.  Mach Mining then filed a motion for a protective order requesting that the Court preclude the EEOC, “from conducting discovery related to Mach’s relationship with other entities — entities which EEOC failed to include in the investigation and conciliation stage that prompted this action.”  Id. at 2.  Following a hearing, the Magistrate Judge denied Mach Mining’s motion for a protective order, and Mach Mining filed Rule 72 objections to the order.

Per Rule 72, the Court found that the ruling was not clearly erroneous or contrary to law.  However, the Court sua sponte reconsidered the motion and granted in part Mach Mining’s motion, finding that “[t]he EEOC had the opportunity to request any and all documents — including those on related entities —during its investigation of Mach Mining.  There are no allegations that Mach Mining failed to cooperate with that investigation or that Mach Mining did not disclosure all requested information. As such, the EEOC has had ample opportunity to seek information and include any related entity in its investigation of Mach Mining.”  Id.  Thus, in its January 21, 2016 order, the Court limited the EEOC from seeking discovery beyond the entities named in its Letter of Determination.

Thereafter, the EEOC moved for clarification or reconsideration of that order.  Prior to hearing arguments, the Court noted that the January 21, 2016 order did not intend to bar the EEOC from seeking discovery from any third party that may have relevant information pertaining to any issue in this matter.  Id. at 3.  Rather, the Court explained that the holding of the January 21, 2016 order was that the EEOC was barred from additional discovery for the purpose of adding parties where no notice and attempt at conciliation had been made.

The Court’s Decision

The Court denied the EEOC’s motion for clarification or reconsideration of the January 21, 2016 order.  The EEOC argued that Mach Mining had, “a web of complex corporate relationships” and that Mach Mining did not have physical control over the mining location and/or physical facilities.  Id. at 4.  These facilities are owned by other entities from whom the EEOC was attempting to obtain discovery.

The Court explained that it did not seek to bar discovery from property owners and that the EEOC was free to seek discovery from third parties.  Nonetheless, the Court noted that “such discovery is limited to Mach Mining’s hiring/firing and/or lack of female facilities. EEOC can conduct any discovery with regard to the merits of this case and/or discovery to third parties for legitimate purposes. The only discovery that was barred was discovery with regard to adding defendants that have not had notice and an opportunity for conciliation.”  Id. at 4.  As a result, the Court concluded that, “there is no basis for the Court to reconsider its January 21, 2016, ruling.”  Id.

Thereafter, the Court granted in part the EEOC’s motion to amend the complaint.  The EEOC argued that it should be permitted to add as defendants two entities named in the Letter of Determination, which the EEOC asserted had notice and an opportunity for conciliation, and seven entities as defendants for relief purposes only who did not have actual notice and an opportunity for conciliation.  Id. at 5.  In regards to the seven entities to which the EEOC acknowledged at the hearing that did not have actual notice and an opportunity for conciliation, the Court found that the EEOC failed to demonstrate that these entities could provide relief unavailable through Mach Mining.  Id. at 6.  As to the two entities named in the Letter of Determination, the Court held that if the EEOC could demonstrate that these entities had actual notice and an opportunity for conciliation in compliance with EEOC’s rules and regulations, the EEOC was granted leave to amend the complaint and to join those two entities as defendants.  Accordingly, the Court granted the EEOC’s motion to amend its complaint to add two entities as defendants, while denying the remainder of its motion to amend in regards to the seven entities who had no actual notice or opportunities for conciliation.  Id. at 7.

Implications For Employers

The Mach Mining litigation is a benchmark case for pattern or practice litigation brought by the EEOC, given its ramifications on the scope of review of the government’s pre-suit Title VII obligations.  This ruling illustrates that in instances where the EEOC does not provide parties actual notice or an opportunity to conciliate, courts will likely not allow those parties to later be added as defendants.  Nonetheless, it remains unlikely that courts will conduct in-depth reviews of such conciliations.

Readers can also find this post on our EEOC Countdown blog here.

Bbagy Christopher M. Cascino and Gerald L. Maatman, Jr.

In EEOC v. DolGenCorp, LLC d/b/a Dollar General, No. 13-CV-4307 (N.D. Ill.), a case we blogged about previously here, Judge Andrea Wood of the U.S. District Court for the Northern District of Illinois recently decided several discovery issues that have become increasingly common in large-scale, EEOC-initiated disparate impact litigation.

Judge Wood’s ruling is a mixed bag. On the one hand, Judge Wood allowed the EEOC to take discovery on certain background checks performed by Dollar General even though the EEOC did not claim that those background checks had a disparate impact. She also ruled that the EEOC could exceed the presumptive 25 interrogatory limit because the case was nationwide in scope.  She further held that pre-suit statistical analyses performed by the EEOC were protected by the deliberative process privilege. On the other hand, she ruled that EEOC documents subject to the deliberative process privilege may nonetheless be discoverable if an employer can demonstrate a particularized need for the materials that outweighs the EEOC’s need for confidentiality.

Case Background

The EEOC filed suit against Dollar General, alleging that Dollar General’s use of criminal background checks for applicants is discriminatory because it has a disparate impact on African-American job applicants. During the course of discovery, the EEOC sought information regarding other background checks performed by Dollar General. Dollar General refused to turn them over, arguing that the other background checks were not relevant to the EEOC’s claims.

Also during discovery, the EEOC served more than 25 interrogatories on Dollar General. In turn, Dollar General refused to answer four of the interrogatories that exceeded the presumptive 25 interrogatory limit under the applicable local rules.

Finally, Dollar General sought any statistical analyses the EEOC had regarding the purported disparate impact of Dollar General’s background check policy. The EEOC refused to turn its pre-suit analyses over, claiming that they were protected by the deliberative process privilege.

Both parties moved to compel discovery. Magistrate Judge Sheila Finnegan granted the EEOC’s motions to compel and denied Dollar General’s motion to compel. Dollar General subsequently filed Rule 72 objections to Magistrate Judge Finnegan’s report and recommendation.

The Court’s Decision

The Court began by considering whether Dollar General should be compelled to turn over documents regarding other, non-challenged background screening used by Dollar General.  Judge Wood held that the documents were relevant to Dollar General’s business necessity defense.  Id. at 4. Specifically, Judge Wood held that the EEOC was entitled to respond to Dollar General’s business necessity defense by showing that alternative, equally effective background checks were available to Dollar General. The Court found that the non-challenged background screening performed by Dollar General might represent such alternative background checks. Id. at 4-5.

The Court then rejected Dollar General’s argument that the EEOC was required to investigate any background checks it claimed were relevant before filing suit. Id. at 5. The Court held that such investigation would only be necessary if the EEOC was claiming the background checks had a disparate impact. Id. Because the EEOC was not challenging these other background screenings, the Court compelled Dollar General to turn over documents about its other background checks. Id.

The Court then addressed the excess interrogatories. The Court held that the EEOC was allowed to exceed 25 interrogatories because its claim was “nationwide in scope, raise[d] complicated data issues, and involve[d] many different legal and factual areas.” Id. at 7-8.

The Court next considered whether Dollar General could discover the EEOC’s pre-suit statistical analyses of Dollar General’s background check policies. After noting that “[t]he deliberative process privilege protects communications that are part of the decision-making process of a governmental agency,” the Court found that these analyses were protected by the deliberative process privilege because they were performed as the EEOC was determining whether to sue Dollar General. Id. at 8-9.

Nevertheless, the Court held that the EEOC might nonetheless be required to turn the analyses over if Dollar General could demonstrate a “particularized need for the documents that exceeds the EEOC’s need for confidentiality.” Id. at 11. The Court then remanded the issue to the Magistrate Judge so that she could decide whether Dollar General could make such a showing.

Implications For Employers

Employers involved in litigation with the EEOC should be aware of this decision because the EEOC will undoubtedly rely upon it when it seeks discovery regarding non-challenged employment policies and when it seeks to serve excess interrogatories in complex, nationwide cases. The EEOC will also try to use the ruling to shield any pre-suit statistical analyses it performed from discovery. However, employers also can use decision to support discovery gambits vis-à-vis the Commission; even if the EEOC’s pre-suit statistical analyses are protected by the deliberative process privilege, they are nonetheless subject to discovery because of some particularized need.

Readers can also find this post on our EEOC Countdown blog here.

flag-28562_640By Gerald L. Maatman, Jr. and Howard M. Wexler

We’ve previously blogged about the impact the U.S. Supreme Court’s landmark decision in Mach Mining v. EEOC, 135 S. Ct. 1645 (2015), most recently here and here. As we predicted, the true impact of Mach Mining will not be known until federal courts around the country start to weigh in on its utility as a dispositive defense vis-à-vis the Commission’s conciliation obligation.  In a key case that all employers should read, Judge Lewis T. Babcock of the U.S. District Court for the District of Colorado, relying on Mach Mining, affirmed his prior dismissal of the EEOC’s lawsuit based on its conciliation failure before filing suit.

Case Background

In 2014 the EEOC filed suit against CollegeAmerica Denver Inc. alleging, in part, that the Separation Agreements that CollegeAmerica provided to the EEOC in connection with the EEOC’s investigation of Debbi Potts’ charges of discrimination denied employees other than Potts the full exercise of their rights under the Age Discrimination in Employment Act (the “ADEA”) and interfered with the statutorily assigned responsibility of the EEOC to investigate charges of discrimination in violation of Section 7(f)(4) of the ADEA, 29 U.S.C. § 626(f)(4).  Id. at 1-2. Prior to the Supreme Court’s Mach Mining decision, the Court dismissed this aspect of the EEOC’s lawsuit as a result of the EEOC’s failure to satisfy the ADEA requirements of notice and conciliation. Id. at 2. Three months after the Mach Mining decision came down, and eight months after the Court dismissed this aspect of the EEOC’s lawsuit, the EEOC filed a motion for reconsideration based on the “limited review” that judges are to apply when assessing the EEOC’s conciliation efforts. Id. at 3.

The Court’s Decision

Preliminarily, the Court criticized the EEOC’s motion for reconsideration based on timeliness, as the EEOC “inexplicably waited eight months to file its motion for reconsideration” and “did not file its motion for reconsideration for more than three months after the Supreme Court issued its decision in the Mach Mining.” Id.  As the EEOC failed “to offer any explanation for the lengthy delay in the filing of its motion for reconsideration,” the Court denied the motion on the grounds of timeliness. Id. However, the Court nonetheless addressed the merits of the EEOC’s argument that Mach Mining warranted reversal.

In reviewing the EEOC’s conciliation efforts pre-suit, the Court held that the EEOC’s conduct with respect to the Separation Agreements remained inadequate under the standards set forth in Mach Mining. Specifically, the EEOC failed to provide adequate notice to CollegeAmerica that the Separation Agreements were part of the EEOC investigation and findings of unlawful practices by CollegeAmerica. Furthermore, there was no evidence that the Separation Agreements were part of the parties’ discussions so as to give CollegeAmerica an opportunity to voluntarily revise them. Id. at 5

With respect to the appropriate remedy, the Court noted that in Mach Mining, the Supreme Court “included dictum that when a court finds in favor of an employer on the question of whether the requisite conciliation occurred, the appropriate remedy is to order the EEOC to undertake the mandated efforts to obtain voluntary compliance.” Id. at 6. Here, however, the Court refused to grant such relief (in essence, rejecting the notion that a simply stay of the case should be entered so that the EEOC could undertake efforts to conciliate with the employer). Instead, the Court reasoned that a stay would severely prejudice CollegeAmerica (as ordering conciliation to take place at this juncture of the litigation) would require additional discovery and could significantly delay resolution of the pending retaliation claim. Id. at 7.

Implications For Employers

This decision yet again demonstrates the powerful tool that the Supreme Court provided to employers in Mach Mining. Because of the Supreme Court’s decision, the EEOC can no longer file suit against employers after paying mere lip-service to its conciliation efforts. Employers must be provided with sufficient notice of the EEOC’s allegations during the conciliation process prior to the EEOC filing suit. And as Judge Babcock determined, the EEOC cannot be assured that if called to task, a judge will simply order the Commission back to the conciliation table to negotiate over the case as it is required to do before filing a lawsuit per statute and Mach Mining. In certain circumstances, the appropriate remedy is outright dismissal of the case.

Readers can also find this post on our EEOC Countdown blog here.

gavel on white backgroundBy Christopher M. Cascino and Gerald L. Maatman, Jr.

In EEOC v. DolGenCorp, LLC d/b/a Dollar General, No. 13-CV-4307 (N.D. Ill. May 5, 2015), Judge Andrea R. Wood of the U.S. District Court for the Northern District of Illinois decided several discovery issues that have become increasingly common in EEOC-initiated disparate impact litigation.  In contrast with other recent decisions by other district courts, Judge Wood decided most of these issues in the EEOC’s favor.

That the EEOC’s internal personnel procedures can be discoverable and relevant in disparate impact cases was first established in 2011 in EEOC v. Kaplan Higher Educ. Corp., No. 10-CV-2882, 2011 WL 2115878, at *4 (N.D. Ohio May 27, 2011), in a ruling we discussed here. This was the first time a federal court had ever so held, and as a result, many employers have tried a similar tactic in EEOC lawsuits over the past few years.

However, in EEOC v. DolGenCorp., the Court ordered Dollar General to turn over the contact information of Dollar General’s job applicants, even though that information did not contain any information about the race or criminal background of the job applicants.  Also in contrast with a recent decision out of the U.S. District Court for the District of South Carolina we discussed here, the Court refused to compel the EEOC to turn over its internal background check policies, despite the fact that the EEOC is alleging that Dollar General’s background check policy creates disparate impact discrimination against African-Americans.  In a better ruling for employers, the Court agreed to examine the EEOC’s internal statistical analyses of Dollar General’s hiring decisions in camera to determine whether the analyses are protected by the deliberative process privilege or work product doctrine.

This case is important for employers because the EEOC will likely use this discovery ruling against employers when similar discovery disputes arise in the future.

Case Background

The EEOC filed suit against Dollar General, alleging that Dollar General’s use of criminal background checks for applicants is discriminatory because it has a disparate impact on African-American job applicants.  EEOC v. DolGenCorp, 13-CV-4307, at 1.  During the course of discovery, the EEOC asked Dollar General to turn over the “names, complete social security numbers, addresses, phone numbers, and complete dates of birth” of job applicants, arguing that such information would allow the EEOC to “link separate databases maintained by Dollar General and two of its vendors.”  Id. at 2.  Dollar General refused, arguing that the requested information was not relevant and was not needed for the EEOC to link the databases.  Id.

Also during discovery, Dollar General also sought discovery from the EEOC relative to its internal policies and procedures regarding its own use of criminal background checks in making employment decisions.  Id. at 8.  The EEOC refused to turn over the information, arguing that it was not relevant.  Id.  Dollar General also sought any statistical analyses the EEOC had regarding the purported disparate impact of Dollar General’s background check policy.  Id. at 6.  The EEOC refused to turn its analyses over, claiming that they were protected by the deliberative process privilege and work product doctrine.  Id.

Both parties moved to compel production of the requested documents.

The Court’s Decision

The Court first decided the EEOC’s motion to compel production of the personal information of Dollar General’s conditional hires.  The Court found that the requested information was discoverable because it was “calculated to lead to the discovery of admissible evidence” insofar as it would allow “the EEOC and its experts more effectively to analyze the statistical impact of Dollar General’s use of criminal background checks” by giving the EEOC the ability to link Dollar General’s databases.  Id. at 3.  While Dollar General argued that this linking could be done by other means, the Court found that the EEOC was not required to use those means when it could use the personal information to accomplish its goal.  Id. at 3 n.1.  The Court further found that Dollar General’s suggested linking method might not be “verifiably accurate,” further supporting the Court’s conclusion that the personal information requested by the EEOC was discoverable.  Id.

The Court next considered whether the EEOC’s policies and procedures on using background checks in its own hiring decisions were discoverable.  The Court pointed out that such information would only be discoverable if Dollar General could potentially use it to show that its use of criminal background checks was “job related for the position in question.”  Id. at 9 (emphasis in original).  While agreeing with Dollar General that a government agency’s employment policies can be discoverable in employment discrimination litigation, it found that such policies would not be relevant to Dollar General’s defenses in this case because Dollar General had not shown that “the functions performed by its employees are in any way comparable to those undertaken by the EEOC’s employees.”  Id.  The Court thus denied Dollar General’s motion to compel production of the EEOC’s background check policies and procedures.  Id.

The Court finally considered whether the EEOC’s statistical analyses of Dollar General’s background check policies were protected by either the deliberative process privilege or work product doctrine.  The Court pointed out that the EEOC argued that its statistical analyses were prepared “during the EEOC’s investigation to determine whether to issue a reasonable cause determination of discrimination,” and that they were thus protected by the deliberative process privilege.  Id. at 7.  The Court further pointed out that EEOC argued that its analyses were also protected by the work product doctrine because they were used by the EEOC’s attorneys in making the decision to sue Dollar General and because one of the analyses was provided to an EEOC investigator by an EEOC attorney.  Id. at 7-8.  The Court concluded that it could not determine whether the EEOC’s privilege and work product assertions were correct based on these arguments, and thus ordered the EEOC to produce the analyses to the Court for in camera review.  Id. at 8.

Implications For Employers

This case is significant for employers because it will undoubtedly be used by the EEOC when it seeks personal information that, while not relevant in itself, could arguably be used to find or create relevant evidence, and when the EEOC seeks to block production of its own hiring practices in disparate impact litigation.  Employers who are engaged in such litigation should anticipate this and try to preempt the EEOC’s use of this case by addressing the Court’s reasoning when responding to or bringing a similar motion to compel.  For example, employers seeking the EEOC’s background check policies should present arguments for why their employees perform similar functions as the EEOC’s employees.  In the meantime, we expect other courts to confront similar discovery disputes in EEOC-initiated disparate impact litigation and to provide further guidance to employers as they work through discovery in such cases.  Stay tuned.

Readers can also find this post on our EEOC Countdown blog here.

door knockBy Christopher M. Cascino and Gerald L. Maatman, Jr.

In EEOC v. Vicksburg Healthcare, LLC, No. 13-CV-895 (S.D. Miss. Apr. 22, 2015), Magistrate Judge Michael T. Parker of the U.S. District Court for the Southern District of Mississippi denied the EEOC’s request to be allowed to inspect and observe the defendant’s facility in an Americans With Disabilities Act (“ADA”) action. As we have reported previously here, the EEOC has recently attempted to obtain discovery by invasive inspections of employers’ premises. Magistrate Judge Parker’s decision to deny the EEOC this access represents another setback for the EEOC as it ratchets up the intensity of its discovery efforts in workplace litigation. It also gives employers a case they can use when the EEOC or other workplace plaintiffs seek intrusive inspections.

Factual Background

The EEOC filed suit against Vicksburg Healthcare, LLC d/b/a River Region Medical Center (“River Region”), claiming that River Region terminated Beatrice Chambers because of a disability in violation of the ADA. Vicksburg Healthcare, 13-CV-895, at 3. Specifically, the EEOC claimed that Chambers could perform the essential functions of a Licensed Practical Nurse (“LPN”) despite the fact that, because of shoulder surgery, Chambers was unable to lift ten or more pounds.

During the course of the litigation, the EEOC served a request for entry onto River Region’s premises for three hours so that it could observe the work of LPNs, inspect the type of equipment in use at River Region, and collect measurements about the amount of force required to push and pull certain equipment. Id. at 3-4. In addition, the EEOC sought to interview River Region’s employees during the inspection. Id. at 6. River Region objected that the request was overly broad and intrusive, would reveal information protected by the physician-patient privilege and HIPPA, and would allow the EEOC to obtain statements from River Region’s employees without the protections in the Federal Rules for deposing witnesses. Id. at 4. Subsequently, the EEOC moved to compel River Region to allow the inspection. Id. at 4-5.

The Court’s Ruling

The Court began by noting that the EEOC did not identify any specific equipment that it wished to observe or measure. Id. at 6. The Court pointed out that this was problematic because a three-hour inspection would not reliably establish which tasks LPNs regularly performed or which equipment they regularly used given that the tasks LPNs performed were “not necessarily performed on any given day.” Id. at 6-7.

The Court reasoned that “the amount of force required to push, pull, and/or lift equipment such as gurneys, beds, and wheelchairs [would] depend on the weight of the patient in the gurney, bed, or wheelchair,” and that it was therefore not clear whether a three-hour inspection “would allow [the EEOC] to observe a representative sample of patients or duties.” Id. at 7. It thus found that the requested inspection “would likely be of limited use.” Id.

The Court further determined that the “possible disruption of patient care and the risk of compromising patients’ rights to confidentiality [were] significant concerns” that weighed against allowing the inspection. Id. at 8. With respect to disruption of patient care, the Court found that, because the EEOC would be testing equipment while the equipment was being used to treat patients, and because “River Region personnel would be subject to roving depositions while they attempt to perform their duties,” the proposed EEOC inspection would likely “significantly disrupt” River Region’s operations. Id.

With respect to confidentiality, the Court opined that the EEOC could receive confidential patient information as the result of the inspection. While the EEOC stated that it would not communicate with any patient or review medical records, the Court found that the “normal” operations of River Region “would likely include the communication or observation of patients’ confidential information.” Id.

Based on the foregoing, the Court concluded that it would not permit the requested inspection. Id. at 9. It further found that the EEOC could try to obtain the information it desired through other means, such as interviews of Chambers and depositions.

Implications For Employers

Employers who are the subject of discrimination litigation or an EEOC investigation can use this case for authority if the plaintiff or the EEOC seeks to investigate their premises. While the case will be especially useful for employers in the healthcare industry (given the Court’s concerns over patient confidentiality), other portions of the decision will be of use to employers in other industries. The Court’s concern that a time limited inspection might not allow an inspecting party to observe a “representative sample” of a position’s job duties would apply in many other industries, and the Court’s conclusion that an inspecting party could obtain information about essential job duties through other, less invasive means of discovery would apply in most, if not all, other industries. Employers should also take heart that the courts are becoming increasingly wary of the EEOC’s attempts to conduct invasive premises inspections.

Readers can also find this post on our EEOC Countdown blog here.

00-money-bagBy Christopher M. Cascino and Gerald L. Maatman, Jr.

In Montgomery v. Kraft Foods Global, Inc., No. 1:12-CV-00149 (W.D. Mich. March 2, 2015), Judge Gordon J. Quist of the U.S. District Court For The Western District of Michigan cut the attorneys’ fee award of the plaintiff’s counsel from a requested $183,168.50 to $6,417 in a decertified class action in which the plaintiff recovered only individual damages. While not a workplace class action, this case provides employers with a tool to dramatically reduce their liability for attorneys’ fees when they defeat class or collective action certification. It also serves as a reminder of the importance of seeking to bifurcate class discovery from merits discovery, as this can eliminate exposure for the fee request of plaintiff’s counsel incurred in discovery if a class is not certified.

Case Background

Pamela Montgomery filed a putative class action complaint against Kraft Foods and Starbucks for alleged violations of the Michigan Consumer Protection Act.  Montgomery, 1:12-CV-00149, at 1.  Montgomery alleged that she purchased a Kraft single-serving coffee maker for the purpose of brewing Starbucks coffee. Id. She alleged that Kraft and Starbucks misled consumers like her by convincing them that Starbucks would continue to produce the single-serving component of the Kraft single-serving brewing system “for a reasonable amount of time into the future, although Defendants knew that their business relationship would soon be at an end.” Id. at 1-2.

After class discovery, the Court denied Montgomery’s motion for class certification. Id. at 2. As a result, the only remaining claim in the case was Montgomery’s individual claim that had a maximum recovery of $250 in statutory damages. Id. at 3. Because continued litigation would result in attorneys’ fees that would far exceed any potential recovery, the Court ordered Defendants to show cause as to why the Court should not order Defendants to submit an offer of judgment to Montgomery for $250 plus costs and reasonable attorneys’ fees. Id. The Defendants then submitted the proposed offer of judgment, which Montgomery accepted. Id.

Because attorneys’ fees and costs are awarded to successful plaintiffs in Michigan Consumer Protection Act litigation, Montgomery moved for an award of $174,786 in attorneys’ fees, plus costs, which she later supplemented with an additional request for $8,382.50 in fees for work performed after the offer of judgment was accepted. Id. at 8. After Defendants objected, Montgomery asked the Court to compel Defendants to produce their own billing records “to measure the legitimacy of Defendants’ objections,” and for a hearing on her fee request. Id. at 4.

The Court’s Opinion 

The Court began by addressing Montgomery’s request for discovery of Defendants’ billing records. The Court found that Defendants’ billing records would not be relevant to Defendants’ objections to the fee award because Defendants’ objections were based on the sufficiency and accuracy of the billing records of Montgomery’s counsel, Montgomery’s request for fees related to Montgomery’s failed attempt at class certification, and the proposed billing rate of $350 per hour for an attorney who was in his first year of practice. Id. at *6. The Court thus denied Montgomery’s request for Defendants’ billing records. Id.

The Court also denied Montgomery’s request for an evidentiary hearing. Id at 8. Applying Michigan law, the Court found that only a party opposing a fee award has the right to an evidentiary hearing, and that it could decide the reasonableness of the fee award based on the parties’ submissions alone. Id. at 7-8.

The Court also addressed Montgomery’s fee request.  It began by finding that Montgomery’s proposed $350 hourly rate was excessive, concluding that a $155 hourly rate was appropriate because it was the mean rate for first year attorneys in Michigan.  Id. at 11.

The Court then turned to the most significant part of its decision – Montgomery’s request for fees for 523.34 hours of work.  Id.  The Court first deducted all 330.83 hours Montgomery’s counsel billed for discovery.  Id. at 12.  While Plaintiff’s counsel claimed that this work was “exclusive of work related to Plaintiffs’ Request for Class Certification,” the Court found that this was “not true.” Id. The Court pointed out that the case, being worth only $250 if a class was not certified, was “largely, if not exclusively, driven by Montgomery’s request for class certification,” and that therefore discovery was, as a practical matter, solely about class certification. Id. The Court then went on to point out that if Montgomery’s counsel engaged in merits discovery, he would have done so in violation of the Court’s order limiting initial discovery to class certification issues, and thus could not recover any fees for discovery even if he engaged in discovery about Plaintiff’s individual claim. Id. at 12 n.7.

The Court went on to deduct hours Montgomery’s counsel spend on other tasks to reflect Montgomery’s lack of success on her class claims. The Court cut the time Montgomery’s counsel spent on pre-complaint research from 9.9 hours to 4 hours and the time spent on drafting the complaint from 38.1 hours to 10 hours.  Id. at 13.  The Court went on to remove all but one of the 59.8 hours Montgomery’s counsel spent on the case after the denial of class certification because after the denial of class certification “it should have been immediately apparent to Montgomery and [her counsel] that continuing the litigation on Montgomery’s individual claim made no sense.” Id. at 14.  Finally, the Court denied Montgomery’s request for fees for time spent litigating the fee petition, finding that a plaintiff’s counsel is not entitled to any fees incurred after a plaintiff accepts an offer of judgment. Id. at 14-15.

After cutting the hourly rate and hours purportedly spent litigating Montgomery’s claim, the Court awarded Montgomery’s counsel $6,417 instead of the requested  $183,168.50. Id. at 16.

Lessons For Employers

While not a workplace class action, employers who are sued in workplace class actions can use this case to support dramatic reductions in requested fee awards for plaintiff’s counsel in cases in which class or collective action certification is denied. Employers can rely on this case to show that the time spent litigating a plaintiff’s individual claims in purported workplace class actions pales in comparison to the time spent attempting to achieve class or collective action certification. It also reminds employers that they should also be sure to request to limit initial discovery in most workplace class actions to the class or collective action certification issue. Discovery is almost always the most expensive and time-consuming part of any workplace class action, and by securing a court order limiting initial discovery to class certification issues, employers can leave no doubt that class counsel should not receive any fees for time spent on discovery prior to the resolution of class certification in any case in which class certification is denied.

By Gerald L. Maatman Jr. and Howard M. Wexler

Discovery battles in high-stakes employment discrimination class actions are costly, contentious, and oftentimes can serve as a “game changer” that alters the entire landscape of a case.  A recent decision from Magistrate Judge James C. Francis IV in Chen-Oster, et al., v. Goldman, Sachs & Co., 2013 U.S. Dist. LEXIS 148318 (S.D.N.Y. Oct. 15, 2013), highlights this the wide-ranging discovery that courts may force employers to turn over in the face of a large scale class action.

Background

As we previously blogged about here, three female employees commenced this lawsuit in 2010 by filing a Rule 23 class action accusing Goldman of gender bias and having a “corporate culture” that allegedly favors men over women for pay and promotions. Namely, the plaintiffs contend that they have been discriminated against with respect to compensation, promotion, and performance evaluation. Id. at 2.

During the course of discovery the parties – not surprisingly – reached an impasse regarding several categories of documents which Goldman refused to produce, arguing that they were not relevant to plaintiffs’ claims. Specifically, Goldman refused to produce the following categories of documents: (1) all internal complaints made by putative class members during the discovery period that relate to compensation, promotion, or performance evaluation; (2) unredacted copies of all discoverable complaints; and (3) internal complaints made by female employees who are not in the class. Id. at 3. Plaintiffs sought their production by a motion to compel.

Court’s Decision

Prior to addressing the precise issues before him, Judge Francis – setting the tone for the rest of his decision – remarked that courts “typically apply more ‘liberal civil discovery rules’ in employment discrimination cases, giving plaintiffs ‘broader access to employers’ records in an effort to document their claims.’” Id. at 6. Judge Francis noted that even “broader discovery” is warranted when a plaintiff has asserted that a pattern or practice of discrimination exists at the organization-wide level as opposed to allegations levied against an individual supervisor. Id. at 8.

With respect to the first open issue – all internal complaints made by putative class members during the discovery period that relate to compensation, promotion, or performance evaluation – Judge Francis held that Goldman must produce this information despite Goldman’s assertion that they “have nothing to do with gender concerns.” Id. at 9. While complaints containing relevant “buzzwords” such as “sex discrimination,” “gender,” “glass ceiling,” or “women’s work” are clearly gender-related, Judge Francis held that “buzzwords are not required at the discovery stage in a disparate treatment case” given the broader scope of discovery in pattern or practice cases. Id. at 13. Attempting to strike an appropriate balance, Judge Francis held that Goldman “must provide plaintiffs any internal complaints regarding compensation, promotion, or performance review where a female who is a member of the putative class drew a comparison between herself or another putative class member and one or more of her male colleagues.” Id. at 15.

With respect to the second issue – unredacted copies of all discoverable complaints- Judge Francis also held that Goldman must provide this information to plaintiffs as it is relevant to the case and so that plaintiffs are able to  “contact potential witnesses and develop anecdotal evidence of the alleged gender discrimination” Id. at 19. While Goldman objected based on the fact that producing these unredacted complaints would violate the privacy interest of its current and former employees, and therefore undermine the integrity and effectiveness of its internal complaint process, Judge Francis held that the parties’ Protective Order and Confidentiality Agreement addresses such concerns. Id. at 23-24.

With respect to the final issue – internal complaints made by female employees who are not in the class – Judge Francis held that Goldman is not required to product such information since complaints by non-class members “will be overly burdensome” and that such a burden “outweighs the scant possibility of uncovering admissible evidence.” Id. at 27. However, Judge Francis granted a partial win for plaintiffs, ordering Goldman to disclose complaints made by women who are not members of the putative class but work within the same business units as the putative class members (e.g., analysts or administrative assistants). Id. at 29. Judge Francis held that since these employees “have worked closely with the putative class members” they may be able to “provide anecdotes and information regarding their interactions with common managers, experiences utilizing the same internal complaint process, or the general culture of these divisions.” Id.

Implications For Employers

Discovery disputes are often hotly contested matters. Motions to compel can be particularly vital to a party’s case because one answer has the ability to un-hinge a massive trunk of pertinent information. In other words, “knowledge is power.” Here, given the wide-ranging discovery that Judge Francis ordered Goldman to produce – including complaints made by individuals outside the putative class – it remains to be seen what additional theories or claims plaintiffs may pursue based on the wide-ranging discovery it will receive. Stay tuned.

By Laura J. Maechtlen and Brian Wong

 As the EEOC trains its focus on systemic enforcement actions, discovery battles over probative claimant information will continue to grow in importance proportionally with the claimant class size. Employer access to specific types of claimant information can make a critical difference in mounting key defenses, testing claimant credibility, and limiting available damages. The EEOC, however, does not hand over such information without a fight.

Recently, in EEOC v. Signal Int’l, LLC, Case No. 12-557 (E.D. La. Sept. 10, 2013), Judge Daniel Knowles of the U.S. District Court in the Eastern District of Louisiana refereed a two-on-one brawl among the EEOC, claimant interveners and the defendant employer over the propriety of discovery into claimant immigration history and status.

In this case, the EEOC asserted four Title VII claims against the employer, including: (1) a §703(a) violation for creation and perpetuation of a hostile work environment; (2) a § 703(a) disparate treatment claim for alleged imposition of less favorable terms and conditions of employment on employees of Indian descent; (3) retaliation claims; and (4) a § 706 pattern or practice claim for both hostile work environment and disparate treatment. Concurrently, individual claimants brought a separate action against Signal, entitled David v. Signal Int’l, LLC, Case No. 08-1220 (E.D. La.). As is common in EEOC enforcement actions, the David plaintiffs also intervened in the EEOC’s action against Signal. You can read our analysis of prior developments in these companion cases here.

After filing dueling motions for protective orders, the parties briefed the issue of whether Signal should receive access in discovery to claimants’ immigration-related documents, including claimants’ T-visa applications. Signal maintained that discovery into claimants’ immigration-related documents was necessary for it to test each claimant’s motive, bias, and credibility.

Despite acknowledging Signal’s interest in the information at issue, Judge Knowles held that (i) the claimants’ current immigration status was a “collateral issue” in the case; and (ii) allowing discovery of records relating to immigration history and status had a chilling or in terrorem effect on claimants and placed an undue burden on private enforcement of employment discrimination laws sufficient to outweigh the probative value of the information. Id. at 12. Notably, in arriving at this conclusion, Judge Knowles relied on a litany of similarly-reasoned Ninth Circuit cases. Id. at 9-10.

As a consolation, Judge Knowles did grant Signal’s request to restrict the EEOC from improperly disseminating information it secured from Signal through pre-trial discovery. Id. at 13. After being “lambaste[d]” on Dan Rather Reports by its adversaries in the case, Signal sought judicial intervention to prohibit the EEOC from improper use of evidence secured through pre-trial discovery. Id. at 5. Judge Knowles agreed with Signal’s position, notwithstanding the EEOC’s invocation of the Freedom Of Information Act, which the Court considered inapposite. Id. at 14.

Implications For Employers

 EEOC v. Signal Int’l, LLC serves as a reminder to employers that courts are not adverse to place substantial limits on discovery of any information that could deter claimants from participating in Title VII litigation. Nonetheless, aggressive pursuit of relevant claimant information is critical to defending against systemic enforcement actions, and despite the relevance of some information, the EEOC will often take unreasonable and aggressive positions in seeking “protection” from its disclosure. Notably, the fight on immigration related information is not new.

The EEOC routinely trots out the same legal authority relied on in Signal in many of its litigation cases — including cases where immigration status is directly at issue — in an attempt to argue it is never discoverable.  However, in many instances, the case law precedent is distinguishable because immigration status is a relevant issue to the case, or immigration status is relevant to damages in an employment discrimination action.  Indeed, various cases have found that immigration status is relevant. See EEOC. v. Evans Fruit Co., Inc., Case No. 10-CV-3033, 2011 WL 2471749, at *1 (E.D. Wash. June 21, 2011) (“[T]he court concludes immigration status does have potential relevance to emotional distress damages . . . That said, because immigration status has potential relevance to damages, it is a legitimate area of discovery and the court will allow the same, subject to an appropriate protective order which ensures the information obtained remains confidential.”); Aguilar v. Immigration and Customs Enforcement Div., No. 07-Civ-8224, 2009 WL 1789336, at *4 (S.D.N.Y. June 23, 2009) (“[T]he immigration status of the named Plaintiffs and putative class members may be relevant to their allegations of emotional and mental distress . . .”); EEOC v. First Wireless Group, Inc., No. 03-CV-4990, 2007 WL 586720, at *9 (E.D.N.Y. Feb. 20, 2007) (noting discovery of immigration status may be relevant to damages in an employment discrimination action).

Readers can also find this post on our EEOC Countdown blog here.

ED Mich seal.pngBy Gerald L. Maatman Jr. and Howard M. Wexler

On July 22, 2013, Judge Paul D. Borman of the U.S. District Court for the Eastern District of Michigan upheld Magistrate Judge Mark Randon’s ruling in the case of EEOC v. The WW Group, Inc., d/b/a Weight Watchers, Case No 12-11124 (E.D. Mich. July 22, 2013), limiting the scope of permissible discovery that the EEOC could pursue. Judge Borman held that Magistrate Judge Randon properly ruled that the EEOC could not question Weight Watchers’ witnesses about the company’s policies and practices towards employees as the EEOC’s case only involved a single job applicant

The lawsuit arose out of a charge of discrimination filed by a pregnant woman who claimed that Weight Watchers discriminated against her based on her sex by refusing to hire her as a group leader while pregnant. Weight Watchers has a goal weight policy that requires anyone applying for a position as a group leader or receptionist to be at “goal weight” when hired. Weight Watchers has a different policy for employees, which makes temporary exceptions to strict adherence to the goal weight policy under certain circumstances, including an employee’s pregnancy. These same exceptions are not made for applicants, who, under Weight Watchers’ policy, must be at goal weight to be hired. The charging party was pregnant when she applied for a group leader position and was several pounds over her goal weight. In the lawsuit, the EEOC neither challenged the legality of the goal weight requirement nor claimed that the policy has a disparate impact on pregnant women. Rather, the EEOC’s only claim is the application of the policy towards the charging party.

In the midst of discovery, Weight Watchers moved for summary judgment on the basis that the EEOC could not establish a prima facie case of discrimination because it is undisputed that the charging party was not objectively qualified to be hired based on the objective goal weight policy. The EEOC argued that Weight Watchers’ motion should be deferred so it could conduct discovery. The EEOC moved to compel discovery, including discovery pertaining to Weight Watchers treatment of pregnant staff/employees under its staff goal weight policy, including whether and under what circumstances Weight Watchers makes exceptions to its policy for pregnant women. The EEOC argued that such information regarding employees is relevant to Weight Watchers’ claim that the charging party was not qualified for employment at the time she applied for the group leader position because she was over her goal weight and because it pertains to whether Weight Watchers’ defense is “mere pretext to hide the bad actor’s decision” to not hire the charging party because she was pregnant.

Magistrate Judge Randon denied the EEOC’s request to conduct discovery regarding the application of the goal weight policy to employees as Weight Watchers’ treatment of its pregnant employees is not relevant to the EEOC’s complaint allegations. In affirming Judge Randon’s ruling on the EEOC’s Rule 72 objections, Judge Borman held that “since [the Charging Party] was never a WW employee, and therefore never subject to the staff goal weight policy, and because the EEOC is not challenging the goal weight policy itself, nor its impact on pregnant women as a group, Magistrate Judge Randon appropriately denied the EEOC’s Rule 56(d) motion to conduct discovery into WW’s treatment of its employees under the staff goal policy.”

Discovery disputes are often hotly contested matters. Motions to compel can be particularly vital because one answer has the ability to open up a large can of worms that could transform a “simple” single plaintiff lawsuit into a “bet the company” case. Here, having decided not to challenge the legality of Weight Watchers’ goal weight policy and whether it has a disparate impact on pregnant women, Judges Randon and Borman refused to allow the EEOC to “have its cake and eat it to” and obtain discovery as if it had brought such a disparate impact lawsuit.  Instead, the Court limited the EEOC to discovery regarding only those individuals “similarly situated” to the charging party, namely, other job applicants, not employees. 

Given the EEOC’s tendency to seek overly broad and unduly burdensome information during the course of discovery, decisions such as this one demonstrate that employers can (and should) push back on such requests as courts are increasingly warning the EEOC that using discovery as a tool to create ongoing and unnecessary burdens is unacceptable – as previously reported here and here.

Readers can also find this post on our EEOC Countdown blog here.