High court won’t hear EEOC subpoena case, circuit split unresolved

The U.S. Supreme Court’s refusal to hear a case on the issue of whether the U.S. Equal Employment Opportunity Commission has the authority to subpoena information even after it has issued a right-to-sue letter leaves a circuit split unresolved.

The high court on Monday refused to reconsider an August 2017 ruling by the 7th U.S. Circuit Court of Appeals in Chicago in Equal Employment Opportunity Commission v. Union Pacific Railroad.

The case involved Frank Burks and Cornelius I. Jones, who worked as “signal helpers” at Omaha, Nebraska-based Union Pacific Corp. and were the only African-American employees in their orientation group.

They applied to take a test to become an “assistant signal person” position but were never provided the opportunity to do so, and were subsequently terminated when their positions were eliminated in the zone where they worked.

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, stating the issuance of a right-to-sue letter does not bar the EEOC from continuing its own investigation.

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