As we have reported in other posts (here and here), there have been a disturbing trend in federal district courts to give the EEOC significant latitude in the scope of its investigations. Recently, however, Judge Terrence McVerry of the U.S. District Court for the Western District of Pennsylvania reigned in the EEOC’s investigation in a subpoena enforcement action entitled EEOC v. UPMC, No. 11-MC-121 (W.D. Penn. May 24, 2011).
In that matter, the EEOC was investigating a charge filed by Carol Gailey, a Nursing Assistant at one of UPMC’s medical centers. The employer granted Gailey a number of leaves of absence to address certain serious health issues. After granting these leaves, short term disability benefits, and alternative work arrangements, UPMC granted Gailey a final Personal Leave of Absence (“PLOA”) for cancer surgery. When Gailey exhausted the 14-week limit of PLOA leave and did not return to work, the employer terminated her employment.
Gailey filed a charge of discrimination claiming her termination violated the Americans With Disabilities Act. UPMC filed a position statement denying the allegations and explained the basis of its PLOA policy. In a request for information that the EEOC later converted into a subpoena, the government demanded that UMPC provide 10 categories of information about “all employees who were terminated after 14 weeks of a medical leave of absence….” The subpoena addressed the entire UPMC corporate structure, not just the location where Gailey worked, and sought records from after the date Gailey was separated. UPMC objected to the subpoena on a number of grounds, and the EEOC filed an enforcement action in the U.S. District Court for the Western District of Pennsylvania.
The Court first recognized that the relevance test for an EEOC subpoena “is not onerous” and that the government may seek any information that “might cast light” on the allegations against the employer. The Court noted – and the EEOC openly admitted – that its investigation was not directed at Gailey’s charge, but rather was seeking other victims of what the Commission believed could be a policy that was illegal under the ADA. The Court balked at the EEOC tactics, noting that the EEOC should have used “narrowly-tailored, potentially dispositive inquir[ies]” before it launched into an inquiry into what the Court called a “tangential alleged systemic violation.” The Court concluded 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 tat is relevant to Gailey’s charge of discrimination.” As a result, Judge McVerry denied enforcement of the subpoena.
The EEOC has signaled that it intends to test “per se” leave policies as part of its renewed focus on the ADA, and the EEOC v. UMPC case certainly seems to be in that vein. Wide-ranging requests for information and aggressive subpoena enforcement actions are the “go-to weapons” in the EEOC’s arsenal, and are increasingly difficult to challenge. Judge McVerry’s decision in this case, however, provides employers a well-reasoned piece of ordinance of their own, and hopefully represents an example of pragmatic reasoning that cuts against a more lenient trend in wide-ranging EEOC investigations.