July 22, 2017

Tenth Circuit: Case Law Does Not Support EEOC’s Request for Broad Subpoena

The Tenth Circuit Court of Appeals issued its opinion in Equal Employment Opportunity Commission v. TriCore Reference Laboratories on February 27, 2017.

The Equal Employment Opportunity Commission (EEOC) is empowered to investigate charges of discrimination and enforce both Title VII, which prohibits employers from discriminating based on sex, including pregnancy, and the Americans with Disabilities Act of 1990 (ADA) which prohibits employers from discriminating against employees on the basis of their disability and requires employers to make “reasonable accommodations” to qualified individuals. When investigating charges of discrimination, the EEOC may obtain evidence that relates to unlawful employment practices covered by Title VII and is relevant to the charge under investigation. If the employer refuses to comply, the EEOC may issue a subpoena compelling production. If the employer does not respond to the subpoena, the EEOC may apply to a federal district court for an order compelling the employer to comply.

Kellie Guadiana worked for TriCore Reference Laboratories as a phlebotomist, which is someone who draws blood. She requested accommodations due to her rheumatoid arthritis, which was exacerbated by her pregnancy. TriCore’s human resource department determined Ms. Guadiana could not perform the essential functions of her position safely. The HR department offered her the opportunity to apply to other positions within the company. When Ms. Guadiana did not apply to a new position, TriCore terminated her.

Ms. Guadiana filed a charge of discrimination with the EEOC alleging that TriCore discriminated against her due to her disability (rheumatoid arthritis) and sex (pregnancy). TriCore explained to the EEOC that it had provided reasonable accommodations by offering her the chance to apply to a new position within the company. EEOC explained that this was a violation of the ADA because the ADA required TriCore to reassign Ms. Guadiana rather than merely provide her with the opportunity to apply to a new position. TriCore statement led the EEOC to suspect that TriCore had a company policy or practice of refusing to provide reassignment as a reasonable accommodation. Due to this, the EEOC informed TriCore in a letter that it was expanding the scope of its investigation to include the failure to accommodate persons with disabilities and failure to accommodate women with disabilities due to pregnancy.

The EEOC sent TriCore another letter requesting a complete list of TriCore employees who had requested an accommodation for disability and a complete list of TriCore employees who had been pregnant while at TriCore and whether they sought or were granted accommodations. TriCore refused to comply. The EEOC subpoenaed the information. When TriCore refused to comply, the EEOC submitted an application to the US District Court for the District of New Mexico requesting an order to show cause why the subpoena should not be enforced. The district court denied the EEOC’s application noting that the EEOC’s real intent in requesting the information was difficult to pin down.

The issue on appeal was whether the district court erred in declining to enforce the EEOC’s subpoena. The Tenth Circuit reviewed the district court’s decision for abuse of discretion. The Tenth Circuit held that the district court did not abuse its discretion in denying the enforcement of either the disability request, which the EEOC asserted was relevant to its investigation into whether TriCore had a policy of discrimination (i.e., pattern-or-practice evidence), or the pregnancy request, which EEOC asserted was relevant to the investigation whether TriCore treated Ms. Guadiana less favorably than similarly situated employees (i.e., comparator evidence).

Under U.S.C. §2000e, the EEOC is empowered to investigate charges of discrimination. But the EEOC has the burden to demonstrate the relevancy of the information sought in a subpoena. The Tenth Circuit referenced the Supreme Court’s decision in University of Pennsylvania v. EEOC, when stating the law that the EEOC does not need to provide a “specific reason” for requesting the information. However, the Tenth Circuit further cites that case for the law that the EEOC still bears the burden of showing the relevancy of the subpoenaed information. To do so, the Tenth Circuit held that the EEOC must show that it has a realistic expectation that the information requested would advance the investigation. The EEOC must also establish a link between the EEOC’s investigatory power and the charges of discrimination.

The Tenth Circuit held that the EEOC’s intent was difficult to pin down. With regard to the pattern-or-practice evidence, the Tenth Circuit held that the district court did not abuse its discretion in denying the EEOC’s request. The Tenth Circuit held that TriCore’s admission that it did not reassign Ms. Guadiana did not justify the EEOC’s expanded investigation beyond its initial investigation into Ms. Guadiana’s individual case. The Tenth Circuit held that the EEOC’s letter informing TriCore of its expanded investigation did not constitute a “charge” of discrimination, which is required under §2000e-8 for the EEOC to seek information about alleged discrimination. The EEOC had not alleged anything suggesting a pattern or practice of discrimination by TriCore. Therefore, the Tenth Circuit held that the district court did not abuse its discretion in finding TriCore’s alleged violation of the ADA, without more, was insufficient to warrant the EEOC’s expanded investigation. The EEOC did not satisfy its burden to justify its expanded investigation.

Next, the Tenth Circuit held that the EEOC waived the disability request part of its comparator-evidence argument on appeal. This was due to the fact that the EEOC limited its comparator-evidence argument on appeal to the pregnancy request. Therefore, the Tenth Circuit considered only the pregnancy request.

The Tenth Circuit held that the EEOC’s pregnancy request could seek information that was potentially relevant to Ms. Guadiana’s charge, which could tend to prove she was denied an accommodation on the basis of her disability. However, the EEOC did not present those relevance arguments in district court. Therefore, the Tenth Circuit held that the EEOC failed to meet its burden of explaining how the pregnancy request would offer information relevant to Ms. Guadiana’s charge. The Tenth Circuit held that the district court did not abuse its discretion.

The Tenth Circuit affirmed the district court’s holding.

Tenth Circuit: Verification Requirement for EEOC Charge Non-Jurisdictional

The Tenth Circuit Court of Appeals issued its opinion in Gad v. Kansas State University on Wednesday, May 27, 2015.

Sabreen Gad was hired by KSU in 2010 as a part-time assistant professor of geology. She subsequently requested to be promoted to a full-time professorship or promote her to membership on the graduate faculty, and when she did not receive either promotion, she filed an unverified charge with the EEOC alleging religious, sex, and national origin discrimination. The EEOC investigator mailed her a Form 5, which has a box in which to sign under penalty of perjury, satisfying the verification requirement, and also a letter instructing her to verify the charge within 30 days or the EEOC would be authorized to dismiss the charge. The investigator also mailed a letter to KSU that Gad had filed an “unperfected” charge of discrimination, and advising that no action was required by KSU. Later, the investigator spoke to Gad again and advised her that further investigation would be unlikely to result in a violation and the EEOC would issue her a dismissal and right-to-sue notice. The notice was mailed to Gad and copied to KSU after the conversation.

Gad sued KSU in federal court. KSU’s answer stated that Gad had failed to exhaust her administrative remedies but did not mention the unverified charge. KSU then moved for summary judgment, arguing the court lacked jurisdiction because Gad had failed to exhaust administrative remedies by not verifying her EEOC charge. The district court agreed, finding exhaustion of administrative remedies is a jurisdictional prerequisite to suit. Gad appealed.

The Tenth Circuit first discussed whether Title VII’s verification requirement was a prerequisite to its subject matter jurisdiction. Although Title VII specifically confers jurisdiction as a general matter, it also requires claimants to submit a “charge” to the EEOC, which must be in writing and must be signed and verified. The Tenth Circuit noted that it is not clear whether the verification requirement is a jurisdictional prerequisite to a Title VII suit. The Tenth Circuit analyzed Supreme Court cases and its own precedent and concluded (1) the language discussing Title VII jurisdiction was not located in the same statute as the verification requirement, tending to show the verification requirement was non-jurisdictional; (2) courts should be careful in interpreting procedural rules to deprive non-lawyers of rights in proceedings they initiate; (3) verification protects employers from the burden of responding to frivolous claims or claims of which they had no notice; and (4) failure to verify will not necessarily render a document fatally defective.

Applying the four principles to the verification requirement, the Tenth Circuit determined it was non-jurisdictional, but noted “[h]olding verification non-jurisdictional does not imply any diminution in the need for plaintiffs to comply with this Title VII requirement.” The Circuit held that an employer may still achieve dismissal based on a verification defect, and found that verification is a condition precedent to suit. The verification requirement is integrated into a statutory section delineating steps a plaintiff must satisfy before receiving leave to sue. Although Gad argued only the EEOC waived the requirement, not KSU, the Circuit held the requirement cannot be waived unilaterally, but non-compliance may be excused in some cases.

The Tenth Circuit reversed the district court’s grant of summary judgment and remanded for further proceedings.

Tenth Circuit: Jury Improperly Instructed on Direct Threat in Employment Discrimination Case

The Tenth Circuit Court of Appeals issued its opinion in Equal Employment Opportunity Commission v. Beverage Distributors Company, LLC on Monday, March 16, 2015.

Michael Sungaila, who is legally blind, worked for Beverage Distributors until his position was eliminated, at which time he obtained a higher paying job in the company’s warehouse that required him to pass a physical. He passed the physical, but the doctor said Mr. Sungaila would require accommodations for his impaired vision. Beverage Distributors declined to make the accommodations, concluding instead that Mr. Sungaila’s condition created a significant risk of harm to himself or others, and rescinded its job offer. Mr. Sungaila subsequently received a lower-paying position with a different company. The EEOC brought suit on his behalf under the ADA.

At trial, Beverage Distributors asserted two defenses: (1) Mr. Sungaila’s limited vision created a direct threat of harm to himself or others and no reasonable accommodations could mitigate the risk, and (2) should he prevail, Mr. Sungaila’s award should be reduced because of his failure to mitigate damages. The jury found that Beverage Distributors was liable for discrimination and Mr. Sungaila was not a direct threat, but also found he had failed to mitigate his damages. The jury reduced his back-pay award for failure to mitigate. The EEOC filed two post-trial motions, first invoking F.R.C.P. 50(a) and arguing Beverage Distributors had not proved failure to mitigate as a matter of law, and also seeking a tax-penalty offset for the lump sum award. The district court granted both motions. Beverage Distributors appealed.

The Tenth Circuit first addressed Beverage Distributors’ claim that the jury was erroneously instructed on direct threat and this constituted reversible error. The Tenth Circuit evaluated the instruction and found it inaccurately conveyed the direct threat standard. The instruction stated that Beverage Distributors must prove that Mr. Sungaila’s employment posed a direct risk of harm, while the actual standard is simply that Beverage Distributors reasonably believed there was a direct risk. Because the jury instruction conveyed the wrong standard for the direct threat defense, and because the jury likely relied on this instruction in determining liability, the Tenth Circuit reversed.

Next, Beverage Distributors argued the district court improperly granted the EEOC’s Rule 50(a) motion, but the Tenth Circuit declined to reach the issue, finding that the evidence for the fact-intensive issue might be different on remand.

Finally, the Tenth Circuit found that the tax penalty offset was properly awarded. If the issue arises again on remand, it is properly before the court to decide whether to award a tax penalty offset, and there is no impropriety in such an award.

The Tenth Circuit reversed and remanded on the direct threat instruction and found the tax penalty offset was proper.

Tenth Circuit: Surmise and Conjecture Insufficient to Establish Causal Connection Between Discrimination Claim and Refusal to Promote

The Tenth Circuit Court of Appeals issued its opinion in Ward v. Jewell on Monday, November 24, 2014.

Mike Ward was once a supervisor for the Department of the Interior, Bureau of Reclamation. After another employee filed a charge of discrimination against Mr. Ward, he was demoted and Mr. Durrant took over his supervisory role. Mr. Ward complained to the EEOC about the reorganization, and a few years later, he tried unsuccessfully to get his old job back. Later, he applied for a managerial position in Provo, Utah, but was not selected. He invoked Title VII, blaming his employer for retaliation for failing to give him his old job back and passing over him for the Provo position. To survive summary judgment, he had to show a connection between the protected activity and the refusal to give him his old job back or hire him for the other supervisory position.

The Tenth Circuit analyzed Mr. Ward’s Title VII claims and found that he did not show a connection between the protected activity and the employment actions. Because of the remoteness in time between Mr. Ward’s EEOC claim and the Department’s refusal to terminate or demote Mr. Durrant and give Mr. Ward his old job back, Mr. Ward needed to use additional evidence to establish a causal connection between the two events. Mr. Ward could only produce evidence of a causal connection using surmise and conjecture, which was insufficient to be probative of retaliation, and a reasonable fact-finder could not infer retaliation from the decision to keep another employee in his job.

As to the second claim, the Tenth Circuit again found causation lacking in the failure to hire Mr. Ward for the Provo position. Mr. Ward would have had to prove retaliation through a “cat’s paw” theory, imputing the biased motive of a subordinate to the final decision-maker. Mr. Ward could not advance any evidence to show that the final decision-maker relied on information from subordinates. An initial panel recommended two candidates (Mr. Ward was not one of the two) to the final hiring agent, Mr. Walkoviak, but Mr. Walkoviak instead interviewed all five applicants for the Provo position and decided to hire an applicant based on his experience. The panel ultimately had little to no input on Mr. Walkoviak’s hiring decision, and the “cat’s paw” theory failed. Mr. Ward was unable to show any retaliation based on Mr. Walkoviak’s failure to hire him for the Provo position.

The Tenth Circuit found Mr. Ward unable to show discriminatory motive for either of the employment decisions, and affirmed the district court’s summary judgment in favor of the Department.

Federal Judiciary to Remain Open Temporarily During Government Shutdown

The United States District Court for the District of Colorado and the Tenth Circuit Court of Appeals announced that during the government shutdown beginning October 1, 2013, the federal Judiciary will remain open for business for approximately 10 business days. On or around October 15, 2013, the Judiciary will reassess its situation and provide further guidance. All proceedings and deadlines remain in effect as scheduled, unless otherwise advised. Case Management/Electronic Case Files (CM/ECF) will remain in operation for the electronic filing of documents with courts.

Other federal agencies affected by a government shutdown have announced contingency plans on their websites. For example, the Equal Employment Opportunity Commission will seek extensions of time from the federal courts, as explained in its Shutdown Contingency Plan.

Tenth Circuit: Nationwide Recordkeeping Data Not Relevant to Charges of Individual Disability Discrimination

The Tenth Circuit Court of Appeals published its opinion in EEOC v. Burlington Northern Santa Fe RR on Monday, February 27, 2012.

The Tenth Circuit affirmed the district court’s decision. Petitioners filed ADA discrimination charges with the EEOC, alleging discrimination based on a perceived disability after not being hired by Respondent following a conditional offer of employment and a medical screening procedure. Respondent’”s position was that it rescinded the offers based on the medical requirements and safety concerns incident to the . . . position, that it did not view either applicant as “disabled,” and that both applicants were free to apply for other positions within BNSF for which they were qualified.” Later, EEOC enhanced the scope of the investigation and issued a subpoena to Respondent requesting nationwide computer files to search for pattern and practice discrimination. Respondent did not comply with the administrative subpoena, and Petitioner requested the district court enforce it, which it declined to do.

On appeal, the Court found that “[n]othing prevents the EEOC from investigating the charges filed by [Petitioners], and then—if it ascertains some violation warranting a broader investigation—expanding its search. Alternatively, nothing prevents the EEOC from aggregating the information it possesses in the form of a Commissioner’s Charge. . . . But nationwide recordkeeping data is not ‘relevant to’ charges of individual disability discrimination filed by two men who applied for the same type of job in the same state, and the district court did not abuse its discretion in reaching that conclusion.”

Colorado Court of Appeals: Second Complaint Alleging Employment Discrimination Properly Dismissed Because it Was Not Timely Filed and Does Not Constitute an Amended Pleading Relating Back to First Complaint

The Colorado Court of Appeals issued its opinion in Kelso v. Rickenbaugh Cadillac Co. on August 18, 2011.

Employment—Title VII—Right to Sue Notice—Complaint—Appeal—C.R.C.P. 15(c)—Independent Equitable Action.

Plaintiff Michael Kelso appealed the trial court’s order granting Rickenbaugh Cadillac Co.’s (Rickenbaugh) motion to dismiss with prejudice. The order was affirmed.

On July 9, 2008, the Equal Employment Opportunity Commission issued Kelso a right-to-sue notice based on alleged Title VII violations by Rickenbaugh, his former employer. Kelso then sued Rickenbaugh over his termination on September 15, 2008 (first case). Kelso failed to set the matter for trial as directed by the court, and the district court dismissed the case without prejudice on February 17, 2009. Kelso did not appeal. On October 20, 2009, Kelso moved to reinstate the case, which was denied by the court. Kelso filed a new complaint against Rickenbaugh on March 15, 2010 (second case), advancing the same allegations as in the first case. The district court granted Rickenbaugh’s motion to dismiss the second case with prejudice.

Kelso largely relied on errors he alleged the trial court made in dismissing the first case. Even if the trial court erred, because Kelso did not timely appeal the first case, the Court of Appeals lacked jurisdiction to consider those contentions.

Kelso also contended that the second case, which contained the same allegations as the first case, was timely filed because the complaint related back to the September 18, 2008 complaint filed in the first case. However, C.R.C.P. 15(c) applies only to the amendment of a pleading in an ongoing action and not to the filing of a new complaint in a new case. Therefore, the second complaint did not constitute an amended pleading that related back to the first complaint. The second complaint was itself an original complaint, and Kelso cannot avail himself of the relation-back doctrine. Thus, the second complaint was not timely filed, and the trial court properly dismissed it.

Kelso further contended that the second complaint should be construed as an independent equitable action seeking relief from the order dismissing his first complaint. A party may not use an independent equitable action to accomplish what he or she could have accomplished by appeal. Because Kelso did not avail himself of the appellate process in the first case, the district court properly dismissed the second case.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on August 18, 2011, can be found here.

Tenth Circuit: Requesting Immediate Home/Family Time, with Only a Fleeting Mention of Need to See Doctor, Does Not Trigger Duty Under ADA to Accommodate HIV Positive Employee

The Tenth Circuit Court of Appeals issued its opinion in EEOC v. C.R. England, Inc. on Tuesday, May 3, 2011.

The Tenth Circuit affirmed the district court’s grant of summary judgment for Respondents. Petitioner, who was diagnosed with HIV in 1999, was hired as a trucker for Respondents in 2002, at which time he disclosed his illness. He subsequently also pursued a training position with the company, and worked with management to create a form for trainees informing them of his condition, which was only presented to one person. Petitioner also requested several days of home time, but they were denied as vacation requests required two weeks of notice. On his first training assignment, after stressful turn of events, though not uncommon in the industry, he informed the company he was leaving immediately with his truck to his family home in Florida for two weeks, needed to see his doctor, and left his partner at a truck stop. He was fired from his training position, and was later fired from the company for not generating income during those two unscheduled weeks or making his lease payments on his truck. The EEOC and Petitioner brought an employment discrimination and retaliation suit against Respondents, claiming they had fired him because of his illness and therefore violated his rights under the ADA.

The Court, however, agreed with the district court and sided with Respondents. The Court found that Petitioner’s two requests for home time did not put Respondent on notice that that Petitioner was requesting reasonable accommodation due to his HIV status; Petitioner classified the requests as “family time,” rather than for his illness, besides his “after-the-fact, fleeing statement mentioning a need to see his doctor. . . . Therefore, his requests did not trigger the company’s duty under ADA § 102(b)(5).” As to his retaliation claim, the Court concluded that even if Petitioner could support a prima facie case, Respondents have proffered a legitimate, non-discriminatory reason for his firing: Petitioner had “just debt” for his truck that he “genuinely owed” under the lease agreement, which is why he was reported to a debt collection agency.

Petitioner also brought two state law claims that were dismissed. He claimed Intentional Infliction of Emotional Distress by Respondents creating the form disclosing his HIV status; the Court determined that the company’s “conduct in presenting [Petitioner]’s trainee with the acknowledgment form disclosing [his] HIV status may not be reasonably regarded as extreme or outrageous.” Additionally, his invasion of privacy claim fails because “the disclosure to one potential trainee and a handful of [Respondent’s] employees does not constitute ‘public disclosure.'”