On June 26, 2012, a federal district court judge in Kentucky again denied enforcement of an EEOC subpoena that requested information from Nestle Prepared Foods regarding a discrimination charge. This second decision comes on the heels of the Court’s earlier denial of the EEOC’s motion to enforce the subpoena due to lack of relevancy on May 23, 2012.
The dispute arose after a former Nestle employee, Michael Peel, filed a discrimination charge with the EEOC alleging, among other things, a Genetic Information Nondiscrimination Act (GINA) violation. As part of its investigation into the matter, the EEOC issued a subpoena directing Nestle to submit “information relating to each physician to whom Nestle referred individuals for physical or medical examinations” and “each individual who submitted to a physical or medical examination,” purportedly to find other class members similarly situated to Mr. Peel. EEOC v. Nestle Prepared Foods, 2012 U.S. Dist. LEXIS 71864, at *3 (E.D. Ky. May 23, 2012). The single GINA charge arose from Mr. Peel’s checking of a box on a family medical history form during his fitness-for-duty examination.
After Nestle refused to produce the requested information, the EEOC filed an application for enforcement of its subpoena. Initially, a magistrate judge recommended that the subpoena be enforced. At the May 23 hearing, however, U.S. District Judge Joseph M. Hood declined to follow the recommendation. Judge Hood reasoned that not “every charge of discrimination justifies an investigation of the employer’s facility-wide employment practices,” particularly where the EEOC fails to point to any other information suggesting a systemic pattern of violations that might support such a probing maneuver. Id. at *7-8.
The EEOC then moved for reconsideration of its subpoena, which the Court granted, acknowledging that the EEOC should have been given the right to respond to Nestle’s objections prior to the May 23 decision. EEOC v. Nestle Prepared Foods, No. 5:11-MC-358-JMH-REW, at *1 (E.D. Ky. Jun. 26, 2012). The Court’s opinion on the matter, however, remained unchanged. Though the EEOC contended that the Court had “overlooked important facts,” such as the testimony of Nestle’s Human Resource Manager and Mr. Peel’s examining physician, the Court concluded that “the subpoena [sought] information beyond that which could reasonably shed light on Mr. Peel’s charge.” Id. at *3.
Implications Of The Decision
Judge Hood’s two rulings are gems. Employers are well-served to file them away for future use in confronting aggressive EEOC subpoenas.
The case law standard for enforcement of EEOC subpoenas is decidedly pro-Commission. EEOC v. Nestle Prepared Foods rejects the typical contentions of the EEOC that it ought to be afforded wide latitude in securing information in its administrative investigations. Judge Hood’s denial of the subpoena, and his rejection of the EEOC’s attempt to enforce its “wide-reaching” subpoena against Nestle, imposes a helpful buffer to the EEOC’s litigation tactics. The decisions also serve as a reminder that not all federal judges are willing to eviscerate the relevancy requirement for possible “fishing expeditions” by the EEOC.