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EEOC granted right to subpoena after right-to-sue letter

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EEOC granted right to subpoena after right-to-sue letter

In a ruling that widens an appellate court split, the 7th U.S. Circuit Court of Appeals in Chicago has held that the U.S. Equal Employment Opportunity Commission has the authority to subpoena information even after it has issued a right-to-sue letter.

In January 2011, Frank Burks and Cornelius L. Jones began working as “signal helpers” at Omaha, Nebraska-based Union Pacific Corp. and were the only African-American employees in their orientation group, according to Tuesday’s ruling by the 7th Circuit in Equal Employment Opportunity Commission v. Union Pacific Railroad Co. 

Both applied to take a test to become an “assistant signal person” position, but were never provided the opportunity to do so.  In October 2011, their helper positions were eliminated in the zone where they worked, and both were terminated.  Mr. Burks filed a charge with the EEOC claiming racial discrimination and retaliation.

In July 2012, the EEOC issued a right-to sue letter, and the two men filed suit charging discrimination in U.S. District Court in Chicago, which granted Union Pacific‘s motion for summary judgment dismissing the case.

After Union Pacific refused a second request from the EEOC seeking information including details about signal helpers across the company similarly situated to Messrs. Burks and Jones, the agency served a second subpoena against the railroad and sought its enforcement in U.S. District Court in Milwaukee.

 The District Court denied Union Pacific’s motion to dismiss the case, rejecting its arguments that the EEOC had lost its investigatory authority either after it issued the right to sue notice to the two men, or when the District Court had ruled in Union Pacific’s favor in the discrimination case.

A three-judge appeals court panel unanimously upheld the lower court’s ruling.

The appeal presents two issues, said the ruling: whether the EEOC is authorized by statute to continue investigating an employer by seeking enforcement of its subpoena after issuing a right-to-sue notice and the cases’ dismissal; and whether the information sought in the investigation is relevant to the EEOC’s investigation.

“Both the United States Supreme Court and this court have repeatedly recognized the EEOC’s broad role in promoting the public interest by preventing employment discrimination under Title VII, including its independent authority to investigate charges of discrimination, especially at a company-wide level,” said the ruling.

“Accordingly, we agree with the district court that neither the issuance of a right-to-sue letter nor the entry of judgment in a lawsuit brought by the individuals who originally filed the charges against Union Pacific bars the EEOC from continuing its own investigation,” said the ruling, in upholding the lower court ruling.

The decision notes, however, that a 1997 ruling by the 5th U.S. Circuit Court of Appeals in New Orleans held the EEOC’s authority to investigate a charge ends when it issues a right-to-sue letter.

But a 2009 ruling by the 9th U.S. Circuit Court of Appeals in San Francisco said a right-to-sue letter does not strip the EEOC’s authority to continue to process the charge, including independent investigation of allegations of discrimination on a company-wide basis.

In May, in a case that has been to the U.S. Supreme Court and back, the 9th Circuit ruled the EEOC can proceed with its subpoena against a food distributor as part of its investigation into a gender discrimination charge.

 

 

 

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