EEOC gets a win in subpoena case

In a case that has been to the U.S. Supreme Court and back, the 9th U.S. Circuit Court of Appeals in San Francisco ruled Wednesday that the U.S. Equal Employment Opportunity Commission can proceed with its subpoena against a food distributor as part of its investigation into a gender discrimination charge.

McLane Co. Inc. v. U.S. Equal Employment Opportunity Commission involved the EEOC’s investigation of the charge filed against Temple Texas-based McLane Co. Inc., a grocery and food service supply chain services company, by an employee who was fired when she failed to pass a physical strength after returning from maternity leave.

After launching its investigation of the charge by the employee, Damiana Ochoa, the agency eventually expanded it to include all McLane facilities nationwide.

McLane provided certain information to the EEOC about the test and the individuals who had been required to take it, but refused to comply with an administrative subpoena that asked for so-called “pedigree information,” including each test taker’s name, Social Security number, last known address and phone number.

The EEOC then filed a subpoena enforcement action. In October 2014, a unanimous 9th Circuit three-judge panel overturned a ruling by the U.S. District Court in Phoenix and held that McLane should provide all the information requested by the EEOC.

The case was appealed to the U.S. Supreme Court which held in a 7-1 ruling, viewed as favoring the EEOC, that a federal appeals court should review a lower court’s decision to enforce or quash an EEOC subpoena on the basis of abuse of discretion, rather than the “more searching”’ de novo form of review.

On remand, a three-judge 9th Circuit panel said the District Court did abuse its discretion in denying the subpoena enforcement action. “The District Court’s ruling was predicated on an erroneous view of the legal standard governing relevance in this context,” said the panel.

“At the investigative stage, the EEOC is trying to determine only whether ‘reasonable cause’ exists ‘to believe that the charge is true,’” the ruling said. “Under this standard, the pedigree information is relevant to the EEOC’s investigation.”

While the EEOC can talk to Ms. Ochoa about her experience with taking the test, the agency “also wants to contact other McLane employees and applicants who have taken the test to learn more about their experiences,” the ruling says.

While McLane contends the EEOC cannot show the pedigree information is necessary, “the governing standard is not ‘necessity’; it is relevance,” said the panel, in vacating the District Court’s judgment.

The court said on remand that McLane can renew its agreement that the requested pedigree information is unduly burdensome. It said the District Court should also resolve whether producing a second category of evidence, the reasons test takers were terminated, would be unduly burdensome to McLane.