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: District Court Did Not Abuse Discretion in Refusing to Enforce 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 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, 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. 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 42 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: A Reasonable Jury Could Credit Plaintiff’s Version of Events, So Summary Judgment Inappropriate

The Tenth Circuit Court of Appeals issued its opinion in Foster v. Mountain Coal Co., LLC on Tuesday, July 26, 2016.

Eugene Foster worked at Mountain Coal’s West Elk Mine in Colorado when he turned his head suddenly on February 5, 2008, and injured his neck. He sought treatment the following day at a local ER and received a return-to-work form from the ER doctor saying he could return on February 8. However, due to a previously scheduled hernia repair surgery, he did not return to work until March 31. Mountain Coal held a meeting with Foster on February 10 to discuss the injury where his managers rejected the ER doctor’s return to work form and instead told Foster that he needed to have a doctor complete Mountain Coal’s return to work form. Foster said he would try to have it completed during his hernia surgery.

Foster was unable to have a hospital doctor complete the Mountain Coal return to work form, so he dropped it off with his regular doctor. Foster testified in his deposition that sometime in early March, he delivered the form to the Mountain Coal offices, where he left it on the HR person’s desk. When she told Foster she did not receive the form, he obtained another form from his personal doctor and delivered it to Mountain Coal on March 18. Foster continued to receive care for his neck injury at Mountain Coal’s direction.

On March 31, Foster returned to work with a Mountain Coal return to work form completed by his hernia doctor. On April 3, the general manager of Mountain Coal held a meeting with Foster and an HR employee. During the meeting, the manager confronted Foster about not seeing his personal physician for the neck injury. Foster confirmed that he hadn’t seen his personal physician, and averred that he told the managers that but they continued to request that he have the personal physician complete the return to work form. Foster was supposed to have retraining the following day but requested at the April 3 meeting that it be rescheduled to accommodate his appointment with a doctor about scheduling surgery for his neck. Foster was suspended indefinitely during the meeting. According to his account, it was for not seeing the personal physician before receiving the return to work form. According to Mountain Coal, it was because Foster lied about delivering the earlier return to work form.

Foster saw the specialist on April 4, who opined that he would not recommend surgery because Foster’s work was aggravating the neck condition. On April 9, Foster saw his personal physician, who opined that Foster should not return to his regular work activities. Foster received a letter from his personal physician on April 11 memorializing the doctor’s conclusions that Foster was unable to return to work, and immediately called Mountain Coal to inform them of the letter. He spoke to his direct supervisor.

Two Mountain Coal managers testified that they had decided to terminate Foster on April 9 because he had lied about leaving a return to work form on the HR person’s desk, while a third testified that Foster had not provided a return to work form with the correct dates for his release “and stuff.” On April 14, Foster received a letter advising him of his termination. Although the letter was dated April 11, it stated that the termination was effective April 9. The letter advised that Foster was being terminated for false information regarding a return to work slip.

After Mountain Coal terminated his employment, Foster filed a charge of discrimination with the EEOC and Colorado Civil Rights Division. He received a right-to-sue letter from the EEOC, and filed a complaint in district court in December 2012, seeking relief under the ADA and Colorado law. The district court entered summary judgment for Mountain Coal, and Foster appealed.

The Tenth Circuit first concluded that genuine issues of material fact existed regarding whether Foster had proved his ADA retaliation claim. Foster claimed that his requests for accommodation on April 3 and April 11 were protected activity, and his termination was a retaliatory adverse employment action. The Tenth Circuit evaluated Foster’s claims of requests for accommodation and found them sufficient to apprise Mountain Coal of his needs. Although the district court held that Foster’s April 3 remarks were not sufficiently direct and specific to constitute a request for accommodation, the Tenth Circuit found that the remarks conveyed a need to meet with the doctor in order to schedule surgery, which was sufficiently specific to trigger accommodations. The Tenth Circuit noted that Foster’s deposition testimony could be clearer, but it was clear enough to survive summary judgment. The Tenth Circuit also found that Foster’s April 11 request was clear, and found Mountain Coal’s attempt to retroactively terminate Foster disingenuous. The Tenth Circuit noted the discrepancies between Mountain Coal’s stated reasons for suspending and terminating Foster, and found that the suspicious timing could lead a reasonable fact-finder to infer that Mountain Coal learned of Foster’s request for accommodation and terminated him because of it.

The Tenth Circuit reversed the district court’s grant of summary judgment to Mountain Coal.