Equal Employment Opportunity Commission v. Bashas' Inc.

Filing 40

ORDER - The court hereby ORDERS that: (1) the 1 "Application for an Order to Show Cause why an Administrative Subpoena Should not be Enforced" filed by petitioner, the Equal Employment Opportunity Commission, is DENIED without prejudice. FURTHER ORDERED that: the 10 "Motion for Leave to Conduct Limited Discovery" by respondent, Bashas', Inc. is GRANTED. Bashas' shall proceed with such discovery within the parameters set forth herein, including the six week time frame, which commences on the entry date of this order. Signed by Judge Robert C Broomfield on 9/30/09. (SAT)

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WO

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Equal Employment Opportunity Commission, Petitioner, vs. Bashas', Inc. Respondent.

) ) ) ) ) ) ) ) ) ) ) )

No. CIV 09-0209 PHX RCB ORDER

Introduction 1 Since at least since May 2006, petitioner, the Equal Employment Opportunity Commission ("EEOC"), has been attempting to obtain, inter alia, pay scale information from respondent, Bashas', Inc. The EEOC has been seeking that

information as part of its ongoing investigation into whether Bashas' has engaged in discrimination against its Hispanic
1

Assuming familiarity with the parallel action of Parra v. Bashas', Inc., No. Civ 02-0591 ("Parra"), as well as the prior proceedings herein, and especially E.E.O.C. v. Bashas', Inc., 2009 WL 1783437 (D. Ariz. June 18, 2009) ("E.E.O.C. I"), there is no need to repeat that entire history herein.

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employees on the basis of national origin with respect to wages and promotions. To date, the EEOC has filed a

Commissioner's Charge ("Charge") of discrimination against Bashas', as well as serving Bashas' with four administrative subpoenas, and two Requests for Information ("RFI"). The May

28, 2008, subpoena is the subject of the EEOC's pending "Order to Show Cause why an Administrative Subpoena Should not be Enforced" (doc. 1). On September 21, 2009, this court heard oral argument as to that OSC and as to Bashas' related "Motion for Leave to Conduct Limited Discovery" (doc. 10). After carefully

considering all of the submissions, including exhibits admitted during that hearing, the testimony of the witnesses, Gregg Tucek, Bashas' in-house counsel, and Kristy L. Nied, Bashas' Director of Communications, and argument of counsel, the court rules as follows. Summary of Arguments In seeking to have the court enforce the May 28th subpoena, the EEOC first asserts that because Bashas' did not timely file a petition to revoke or modify that subpoena, Bashas' has not exhausted its administrative remedies. The

EEOC thus reasons that, except for constitutional challenges, Bashas' has waived all objections to enforcement of that subpoena. Even if Bashas' is not deemed to have waived its

objections, the EEOC asserts that Bashas' has "no valid defenses" for not complying with that subpoena. 2) at 6:15-16. Memo. (doc.

Thus, the court should enter an order

directing Bashas' to respond to the May 28, 2008 subpoena.
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Bashas' retorts that it has "preserved its right to challenge this subpoena" by, inter alia, providing detailed objections by June 13, 2008 -- the production date specified on the subpoena. Resp. (Doc. 25) at 5 (emphasis omitted).

Turning to the merits, Bashas' asserts that this subpoena was not issued for a legitimate purpose, and hence the court should not enforce it. Bashas' seeks leave to conduct

limited discovery to substantiate that argument. Additionally, Bashas' asserts that the court should not enforce the subpoena because the Charge does not provide it with adequate notice as to the nature of the allegations. Although it recognizes the broad definition of relevancy in this context, Bashas' implicitly argues that the court should deny enforcement of the May 28th subpoena because the information which the EEOC is seeking therein is "completely irrelevant." Resp. (doc. 25) at 12 (emphasis omitted).

Alternatively, if the court does enforce the subpoena, Bashas' "requests that the Court narrow [the] overbroad requests" therein and enter a confidentiality order "to prevent improper disclosure of Bashas' confidential employee information." Id. at 16:16-17.

The court will first address the EEOC's waiver argument. The court will proceed in this way because if it finds that Bashas' has waived its objections to the subpoena, such a waiver would include Bashas' objection on abuse of process grounds. Thus, a finding of waiver here would render moot Only if the court is convinced

Bashas' discovery motion.

that Bashas' has not waived its right to challenge the
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subpoena on abuse of process grounds, will it consider whether to allow Bashas' to proceed with limited discovery. Discussion I. Waiver2 Factual Background The challenged subpoena directed Bashas' to mail to the EEOC "on June 13, 2008 at 4:00 o'clock[,]" compact disks containing a vast range of employee data, such as compensation details, ethnicity and union eligibility. Manget Aff. (doc. 2-2) at 3, ¶ 14; and attach. 7 thereto at 39. Nowhere on the face of that subpoena is there any

mention of the five day time frame, discussed below, for

As outlined in E.E.O.C. I, slightly more than eight weeks after this court denied the Parra plaintiffs' motion for reconsideration on the issue of certifying a class as to the pay claim, on May 26, 2006, the EEOC served an administrative subpoena upon Bashas'. One of the bases for Bashas' objection to that subpoena was that the EEOC had closed the individual charges in Parra more than four years prior to the issuance of that subpoena. E.E.O.C. I, 2009 WL 1783437, at *2. The EEOC did not respond to any of Bashas' objections; nor did it move to enforce that May 2006 subpoena. Id. Seemingly, the EEOC's response was to "re-open[] the charges as to the eight individuals who had filed EEOC charges against Bashas' in 2002, including plaintiffs Parra and Estrada." Id. (citations omitted); see also Mot. (doc. 10), exh. E thereto. Bashas' objected to that reopening as well, but again, the EEOC never responded or moved to enforce the May 2006 subpoena. Quincy Decl'n (doc. 10-3) at 17, ¶ 8:8-9. Partially based upon the foregoing, it appears to the court that Bashas' is raising the specter that the EEOC may not have the power to issue a subpoena once a charging party, such as Jose Parra, institutes litigation based upon that charge. Fairly recently, however, in E.E.O.C. v. Fed. Express Corp., 558 F.2d 842 (9th Cir. 2009), petition for cert. filed, 77 U.S.L.W. 3680 (Jun 01, 2009) (No. 08-1500), the Ninth Circuit held that the EEOC "retains its authority to issue an administrative subpoena against an employer even after the charging party has been issued a rightto-sue notice and instituted a private action based upon that charge. Id. at 854. Federal Express thus forecloses Bashas' suggestion that because the EEOC closed the Parra charges and then "re-opened" them, the EEOC lacks the authority to issue an administrative subpoena such as the one at issue herein. Of course, in Federal Express the Ninth Circuit expressly left open the issue "whether the EEOC [later] may be barred from bringing a subsequent lawsuit based upon the [original] charge[.]" Id. Declining to address that issue, the Federal Express Court found that it was "simply irrelevant to whether the EEOC could issue an administrative In light of the subpoena based upon that charge[]" in the first place. Id. foregoing, the court finds that the EEOC had the authority to issue the May 28, 2008 subpoena, despite having previously closed and then re-opened the charges as to some of the Parra plaintiffs.

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filing a petition to revoke or modify that subpoena.

The

only legal authority which that subpoena references is Title VII, 42 U.S.C. § 2000e-9. The May 28th subpoena indicates Id.,

that it is being "issued pursuant" to that statute. attach. 7 thereto at 39.

"That subpoena was served upon

Bashas' by certified mail the next day, May 29, 2008." E.E.O.C. I, 2009 WL 1783437, at *3 (citations and footnote omitted). On the directed production date - June 13th - nearly eight months prior to the filing of this action, Bashas' "asserted its objections to the subpoena, citing relevant authorities, and reiterat[ing] its prior objections and concerns to this request for information." 19, ¶ 16:6-7. Mot. (doc. 10), exh. F thereto at

Those objections took the form of a letter to

Chester V. Bailey, EEOC Phoenix District Director, and Charles J. Rahill, the EEOC investigator to whom the subpoenaed documents were to be produced. Doc. 25-3 at 103. The EEOC

For almost eight months the EEOC did nothing.

never contacted Bashas', for example, to inform Bashas' that because it had not timely filed a petition to revoke or modify the May 28th subpoena, it failed to exhaust its administrative remedies. Similarly, the EEOC never advised

Bashas' that failing to exhaust, from the EEOC's standpoint, would constitute a waiver of any objections Bashas' may have to the subpoena. Nor, in the following months, did the EEOC

ever respond to any of the objections detailed in Bashas' June 13, 2008 letter. Instead, on February 2, 2009, the same

day this court denied post-April 2004 pay data discovery in
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Parra, the EEOC filed the pending OSC to enforce the May 28, 2008, subpoena. Analysis The EEOC is taking the position, as noted at the outset, that because Bashas' has not exhausted its administrative remedies, it has "waived all objections to enforcement of th[at] subpoena." OSC Memo. (doc. 2) at 5 (emphasis added).

Implicit in that broad assertion is that by failing to exhaust its administrative remedies, Bashas' has waived its right to object to the subpoena on abuse of process grounds; concomitantly Bashas' is not entitled to conduct limited discovery on that issue. To support its waiver argument, the EEOC relies upon 29 U.S.C. § 161, which states in relevant part: Within five days after the service of a subpena [sic] on any person requiring the production of any evidence in his possession or under his control, such person may petition the Board to revoke, and the Board shall revoke, such subpena [sic] if in its opinion the evidence whose production is required does not relate to any matter under investigation, or any matter in question in such proceedings, or if in its opinion such subpena [sic] does not describe with sufficient particularity the evidence whose production is required. 29 U.S.C. § 161 (1) (emphasis added). The EEOC further relies

upon 29 C.F.R. § 1601.16(b)(1), which states in relevant part: Any person served with a subpoena who intends not to comply shall petition the issuing Director or petition the General Counsel, if the subpoena is issued by a Commissioner, to seek its revocation or modification. Petitions must be mailed to the Director or General Counsel, as appropriate, within

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five days (excluding Saturdays, Sundays and Federal legal holidays) after service of the subpoena. 29 C.F.R. § 1601(b)(1) (emphasis added). Disregarding the

inconsistency between the permissive statutory language and the mandatory language of the regulation, the EEOC contends that Bashas' failure to petition to revoke or modify the subpoena within five days of service (i.e., June 5, 2008), precludes Bashas' from challenging that subpoena except on constitutional grounds. Bashas' counters by accurately pointing out that the regulation's mandatory language is at odds with the statute's permissive language. Based upon that distinction, Bashas'

asserts that "many courts have held that the exhaustion requirements of th[at] regulation [29 C.F.R. § 1601.16(b)(1)] are not binding on respondents." (emphasis added). Resp. (doc. 25) at 6

Due to the paucity of relevant case law,

this is an overstatement. Nonetheless, to support that broad assertion, Bashas' cites to, but does not discuss, E.E.O.C. v. Lutheran Social Services, 186 F.3d 959 (D.C.Cir. 1999). There, the D.C.

Circuit held that an employer who did not file a section 1601.16(b)(1) petition did not waive its right to object to an EEOC subpoena on attorney-client and work doctrine privilege grounds. E.E.O.C. v. WinCo Foods, Inc., 2006 U.S. Dist. LEXIS

74521 (E.D.Cal. 2006), however, and not Lutheran Services, is the cornerstone of Bashas' argument that despite not filing a section 1601.16(b)(1) petition, it has not waived its right to object to the May 28th subpoena.
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Bashas' was not alone in giving relatively short shrift to Lutheran Social Services. Narrowly focusing on the nature

of the employer's objections in Lutheran Services, the EEOC contends that Lutheran is inapplicable here. parties did not deem Although the

Lutheran Services worthy of any Lutheran

meaningful discussion or analysis, the court does.

Services warrants fairly close examination because: (1) it is the seminal wavier case; (2) the WinCo court adopted that reasoning; and (3) Lutheran Services and WinCo are strikingly similar to the present case. Additionally, Lutheran Services is noteworthy because that Court held that compliance with 29 C.F.R. § 1601.16(b)(1) is not a jurisdictional prerequisite, as the EEOC conceded The WinCo

therein. Lutheran Services, 186 F.3d at 962.

court,3 as does this court, found Lutheran Services persuasive on that point. Compliance with that regulation is not

jurisdictional, the D.C. Circuit explained, because "[e]xhaustion is a jurisdictional prerequisite . . . [o]nly when Congress states in clear, unequivocal terms that the judiciary is barred from hearing an action until the administrative agency has come to a decision." quotation marks and citation omitted). Id. (internal

Title VII lacks those

"clear, unequivocal terms," as the Lutheran Services Court explained. Title VII, which "confers on the EEOC the same

subpoena authority the National Labor Relations Act gives to the National Labor Relations Board[,]" provides "only that
WinCo is the only case within the Ninth Circuit of which the court is aware addressing the issue of whether section 1601.16(b)(1) is jurisdictional.
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parties `may petition the [Commission] to revoke' a subpoena on the basis of relevance and particularity; nowhere does [29 U.S.C. § 161(1)] even imply, much less expressly state, that courts lack jurisdiction to hear objections not presented to the [EEOC]." added). Id. at 962 and 963 (citations omitted) (emphasis

Therefore, despite the mandatory language of the

regulation, nothing in the governing authorizing statute unequivocally states that exhaustion is a jurisdictional prerequisite. Thus, in accordance with Lutheran Services and

WinCo, this court finds that Bashas' failure to comply with 29 C.F.R. § 1601.16(b)(1) does not deprive this court of jurisdiction to consider Bashas' objections. Although the Lutheran Services Court held that section 1601.16(b)(1) did not deprive the court of jurisdiction to consider the employer's objections to the EEOC's subpoena, it did recognize the discretionary nature of exhaustion thereunder. In other words, "courts may exercise their

authority to hear issues not presented to the agency if the circumstances surrounding noncompliance with agency procedures are sufficiently compelling." marks and citations omitted). Id. at 963 (internal quotation This means that "`the

exhaustion requirement continues to apply as a matter of judicial discretion[,]'" as opposed to a mandatory jurisdictional doctrine, "`in cases not governed by the APA [Administrative Procedure Act].'" Lutheran Services, 186 F.3d

at 963 (quoting Darby v. Cisneros, 509 U.S. 137, 153-54, 113 S.Ct. 2539, 125 L.Ed.2d 113 (1993)) (emphasis added by Lutheran Services Court). Simply put: "Where Congress

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specifically mandates, exhaustion is required.

But where

Congress has not clearly required exhaustion, sound judicial discretion governs." McCarthy v. Madigan, 503 U.S. 140, 144,

112 S.Ct. 1081, 117 L.Ed.2d 291 (1992). Invoking those well-settled principles, the Lutheran

6 Services Court held that the "mandatory language" of section 7 1601.16(b)(1) "creates a strong presumption that issues 8 parties fail to present to the agency will not be heard in 9 court." 10 omitted).

Lutheran Services, 186 F.3d at 964 (citation At the same time, though, the D.C. Circuit found

11 that there was "no categorical bar prevent[ing] [it] from 12 considering whether the facts surrounding Lutheran's failure 13 to file a section 1601.16(b)(1) petition constitutes 14 circumstances sufficiently extraordinary to defeat this 15 presumption[.]" Id. 16

For three reasons, the Lutheran Services Court excused the

17 employer's failure to file a § 1601.16(b)(1) petition 18 objecting to the EEOC's subpoena.

First, the form subpoena at

19 issue therein did not "stat[e] that a subpoena recipient has 20 five days to object or even point[] the recipient to section 21 1601.16(b)(1)[.]" Id.

That subpoena stated "only that it `is

22 issued pursuant [to] (Title VII) 42 U.S.C. § 2000e-9.'" Id. 23 The Court persuasively reasoned that "[n]othing on the face of 24 the subpoena or in the statutes to which it referred would 25 have led [Lutheran] . . . to believe that [it] must petition 26 the EEOC within five days, particularly given that Lutheran's 27 objection rested not on relevance or particularity, but on the 28 attorney-client and work product privileges."

Id. (citation

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1 omitted).

Relevancy and lack of particularity are the two

2 grounds which 29 C.F.R. § 1601.16(b)(1) identifies as bases 3 for filing a petition to revoke. 4

The second reason for excusing timely filing of a

5 § 1601.16(b)(1) petition in Lutheran Services was that the 6 EEOC investigator "seem[ed] to have been unaware" of 7 Lutheran's "obligation" under that regulation.

Id. at 965.

8 That seeming unawareness arose from the fact that the EEOC 9 investigator "never said, `Sorry, you're too late.

29 C.F.R.

10 § 1601.16(b)(1) requires your client to have filed a petition 11 with the District Director within five days of receiving the 12 subpoena.]'" Id.

Instead, according to Lutheran's counsel,

13 the investigator took a more conciliatory approach, 14 "agree[ing] to `keep [the lawyer] posted on the EEOC's 15 decision and to contact [the lawyer] before taking further 16 action.'" Id. (citation omitted).

It was "[n]ot until the

17 EEOC filed th[at] enforcement action [that] . . . [the EEOC] 18 mention[ed] section 1601.16(b)(1)." 19

Id.

The Lutheran Services Court also found it significant that

20 Lutheran had "repeatedly claimed the [subpoenaed] document to 21 be privileged."

Id. 186 F.3d at 965 (citation omitted).

Not

22 only that, "the EEOC official with whom the regulation 23 required Lutheran to file its petition, . . . , was aware of 24 the nature of Lutheran's objections." 25

Id.

Importantly, the Court in Lutheran Services further

26 explained that its holding "would do little if any damage to 27 the integrity of the Commission's section 1601.16(b)(1) 28 procedures." 186 F.3d at 965.

The Court recited the well-

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1 settled tenet that "[t]he basic purpose of the exhaustion 2 doctrine is to allow an administrative agency to perform 3 functions within its special competence." 4 quotation marks and citations omitted).

Id. (internal "No such benefit

5 would flow from requiring exhaustion[,]" the Lutheran Services 6 Court found, because "the EEOC has no expertise with respect 7 to the attorney-client and work product privileges." 8 Such expertise "resides in the federal courts." 9 omitted).

Id.

Id. (citation

Consequently, the Court noted that "even if

10 Lutheran had filed a section 1601.16(b)(1) petition, [it] 11 would not defer to the EEOC's disposition of Lutheran's 12 privilege claims."

Id. (citations omitted).

Declining to

13 defer to agency expertise made Lutheran Services "quite 14 different from the more typical situation where a subpoena 15 recipient's objections rest on relevancy or particularity, the 16 two factors listed in 29 U.S.C. § 161." 17

Id.

Bolstering the Court's holding in Lutheran Services was

18 the "important role" that the attorney-client and work product 19 privileges "play . . . in Title VII's enforcement scheme[,]" 20 along with the fact that "rejecting the [EEOC's] waiver claim 21 w[ould] not deny it access to any sources of possible evidence 22 of discrimination."

Id. at 966.

"[U]nder th[os]e combined

23 circumstances," the D.C. Circuit found that it would be "both 24 unfair and unwise to penalize Lutheran for failing to file a 25 section 1601.16(b)(1) petition."

Id. at 966-967.

26 Accordingly, it did not deem "Lutheran's failure to file a 27 section 1601.16(b)(1) petition as a waiver of its privilege 28 claim."

Id. at 965.

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1

As in Lutheran Services, the issue here is "whether the

2 facts surrounding [Bashas'] failure to file a section 3 1601.16(b)(1) petition constitute circumstances sufficiently 4 extraordinary to defeat" the presumption that the court should 5 not consider issues which Bashas' did not present to the EEOC. 6 See id.

Stated differently, the court must consider whether

7 "the circumstances surrounding [Bashas'] noncompliance with 8 [EEOC] procedures are sufficiently compelling[]" so that, in 9 the exercise of its discretion, the court may consider those 10 issues.

See id. at 963 (internal quotation marks and The remarkable similarities, set forth

11 citations omitted).

12 below, between Lutheran Services and the present case, 13 persuade this court that Bashas' has preserved its right to 14 challenge the May 28, 2008 subpoena, regardless of its failure 15 to file a § 1601.16(b)(1) petition. 16

Significantly, the Lutheran Services subpoena, which is an

17 appendix to that decision, is identical to the subpoena which 18 the EEOC issued to Bashas'.

And, just like the Lutheran

19 Services subpoena, the subpoena to Bashas' merely stated that 20 it was issued "pursuant . . . (Title VII) 42 U.S.C. 2000e21 9[.]" Manget Aff. (doc. 2-2), attach. 7 thereto at 39.

There

22 is nothing on its face which would have led Bashas' to believe 23 that it had only five days to petition to revoke or modify 24 that subpoena. 25

Evidently the EEOC is attempting to distinguish Lutheran

26 Services on the basis that although the challenged subpoena 27 did not mention the five day rule, Bashas' was "aware of [its] 28 ability to petition to revoke or modify the subpoena because

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1 [she] had previously attempted to do so on behalf of [Bashas'] 2 in Jose Parra's charge." 3 omitted)(emphasis added).

Reply (doc. 28) at 4, n. 3 (citation The flaw with that reasoning is

4 that Bashas' awareness of its ability to file a petition is 5 fundamentally different than its awareness of the time frame 6 in which to do so. 7

Bashas' May 25, 2006 petition to revoke the EEOC's May 11,

8 2006 subpoena, to which the EEOC points, shows Bashas' 9 awareness of its ability to petition to revoke; but, that 10 petition does not show 11 frame.

Bashas' awareness of the five day time

Apparently Bashas' received the May 11th subpoena on

12 May 15th, but its petition to revoke is dated May 25th, and 13 evidently faxed to the EEOC that same date. 14 76; and 78.

Doc. 25-3 at 75-

Bashas' petition to revoke thus was not mailed subpoena, as

15 within five days after service of the May 11th 16 section 1601.16(b)(1) mandates.

Perhaps that is because, like

17 the other EEOC subpoenas before this court, the May 11th 18 subpoena did not specify the five day time frame, or the 19 statutory or regulatory basis for that requirement. 20

Interestingly, Bashas' concluded its May 25, 2006 petition

21 by requesting to be "advise[d]" if the EEOC "believe[d] [that] 22 for some reason . . . [Bashas'] . . . overlooked a relevant 23 fact or legal authority[.]" Id. at 82 (emphasis added). 24 Despite that explicit request, the EEOC never advised Bashas' 25 that that petition was not timely.

In fact, the EEOC did not

26 directly respond to that petition, and it never filed an 27 action to enforce the May 11, 2006 subpoena.

Thus, the court

28 disagrees with the EEOC's suggestion that the timing of

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1 Bashas' prior petition to revoke supports a finding that 2 Bashas' was aware of the five day rule.

Obviously the court

3 also does not agree that Bashas' awareness of its ability to 4 file such a petition is an adequate basis for distinguishing 5 Lutheran Services. 6

In addition to serving subpoenas which did not notify the

7 recipients of the five day rule, Lutheran Services and the 8 present case are alike in that seemingly the EEOC 9 investigators in both were unaware of the recipients' section 10 1601.16(b)(1) obligations.

As in Lutheran Services, the EEOC

11 never informed Bashas' that its June 13, 2008 response was too 12 late.

Moreover, as just explained, here, the EEOC also never

13 advised Bashas' of its failure to comply with the five day 14 rule even when in May 2006 Bashas' filed a petition to revoke 15 pursuant to section 1601.16(b)(1). 16

The EEOC's failure to mention section 1601.16(b)(1)

17 becomes even more problematic given that between May 2006 and 18 May 2008, the EEOC served Bashas' with four subpoenas, 19 including the one at issue herein.

None of those subpoenas

20 advised Bashas' of the five day time frame, or the 21 consequences of failing to comply therewith.

In fact, as to

22 Bashas' response to the two July 27, 2007 subpoenas, 23 completely disregarding the timing issue, the EEOC addressed 24 the merits in some detail, finding that response "inadequate." 25 Id., attach. 5 thereto at 30. 26

The bottom line here, which the EEOC cannot refute, is

27 that Bashas' timely responded to the only deadline in the 28 subpoena - June 13, 2008.

At any point in the process, it

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1 would not have been difficult for the EEOC to have advised 2 Bashas' of the section 1601.16(b)(1)'s requirements, but it 3 did not.

Intentional or not, the effect of the EEOC's silence

4 was to lead Bashas' into a false sense of security as to the 5 necessity of timely filing a petition to revoke or modify. 6 The court will not countenance such behavior.

After all, at

7 least since 1999, when the D.C. Circuit wisely suggested a 8 simple addition to the EEOC's form subpoena,4 the EEOC has been 9 well aware of the risks inherent in continuing to use a 10 subpoena which does not notify the recipient of section 11 1601.16(b)(1)'s time frame. 12

Moreover, as in Lutheran Services, in this case the EEOC

13 did not mention the five day time frame until the February 2, 14 2009, filing of its application for an OSC.

Even then, the

15 supporting affidavit only avers that Bashas' "has not filed a 16 Petition to Revoke or Modify the Subpoena, and the five-day 17 period for filing such a petition with respect to a Title VII 18 subpoena has expired."

Id. at 4, ¶ 18.

In making that

19 averment, EEOC Enforcement Manager Manget does not cite to any 20 21 22 23 24 25 26 27 28
4

In Lutheran Services, the Court pointedly observed: [I]f the [EEOC] wishes to ensure (regardless of the actions of its General Counsel) that it has an opportunity to review all subpoena enforcement issues before they get to court, it can easily do so by adding to the face of the subpoena, which already contains a "Notice to Person Subpoenaed," something like the following: If you have any objections to this subpoena, you must include them in a petition filed with the issuing official pursuant to 29 C.F.R. § 1601.16(b)(1). Petitions must be mailed within five days of receiving this subpoena. Failure to follow these regulations may result in loss of any ability to raise such objections in court.

Lutheran Services, 186 F.3d at 966-67 (citation omitted).

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1 statute or regulation. 2

Finally, as earlier alluded to, like Lutheran Services,

3 Bashas' has repeatedly and continually made its objections 4 known to the EEOC.

Those objections included not only In fact, at

5 relevancy and overbreadth, but abuse of process.

6 least as early as May 25, 2006, Bashas' informed the EEOC of 7 its abuse of process argument.5

That response, as well as

8 Bashas' June 13, 2008, response to the challenged subpoena 9 were both addressed, among others, to Chester V. Bailey who 10 issued the May 28, 2008 subpoena.

Thus, although Bashas' did

11 not timely file a petition to modify or revoke in accordance 12 with § 1601.16(b)(1), its response to the challenged subpoena, 13 which is dated June 13, 2008 - the production date directed in 14 the subpoena - put Mr. Bailey, the "issuing Director," on 15 notice of Bashas' objections, which surely is the underlying 16 intent of that regulation.

Indeed, during the hearing the

17 EEOC agreed with the court's observation that as a practical 18 matter it has known of Bashas' objections for months prior to 19 the filing of this action.

It thus strikes the court that

20 this is a classic example of the sporting maxim, "No harm, no 21 foul." 22

WinCo upon which Bashas' predominately relies to refute

23 Bashas' waiver argument provides further support for the 24 court's conclusion that Bashas' has not waived its right to 25 object to the EEOC subpoena at issue herein.

Applying the

26 Lutheran Services analysis, the court excused WinCo from 27 filing its objections within five days of service of an EEOC 28
5

See Doc. 25-3 at 81-82.

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1 subpoena.

The essential facts of WinCo are practically

2 identical to those here, as well as to those in Lutheran 3 Services.

In all three cases, the EEOC subpoena did not Nor did the EEOC

4 notify the recipient of the five day rule.

5 notify any of those recipients, after they served their 6 objections, that there was "any compliance issue or failure to 7 exhaust."

See WinCo, 2006 U.S.Dist. LEXIS 75421, at *12 WinCo, as

8 (internal quotation marks and citations omitted).

9 did Bashas' also "consistently objected, . . . , to EEOC's 10 information requests and WinCo's formal written objections to 11 the challenged subpoena[.]"

Id.

Further, the subpoena

12 recipients served responses "to the subpoenas on the date for 13 which production was demanded, long before the filing of 14 th[o]s[e] enforcement action[s]." 15

See id.

Given that the WinCo facts were "analogous" to those in

16 Lutheran Services, and that "the balance of factors weigh[ed] 17 strongly in WinCo's favor[,]" the court found WinCo did not 18 waive its objections to the challenged EEOC subpoena.

Id.

19 Furthermore, the WinCo court convincingly distinguished the 20 line of cases to which the EEOC cites in its memorandum on the 21 basis that none of them6 "involved defendants who lodged 22 objections prior to the EEOC's filing of an enforcement 23 action[;]" and none "examine[d] the inconsistencies between 29 24 C.F.R. § 1601.16(b) and its authorizing statute, 29 U.S.C. § 25 161." 26 27 28
See E.E.O.C.v. Cuzzens of Georgia, 608 F.2d 1062 (5th Cir. 1979); E.E.O.C. v. City of Milwaukee , 919 F.Supp.1247 (E.D.Wis. 1996); E.E.O.C. v. County of Hennepin, 623 F.Supp. 29 (D.Minn. 1985); and E.E.O.C. v. Roadway Express, 569 F.Supp. 1526 (N.D.Ind. 1983)).
6

Id. at *13 (citations omitted).

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1

In any event, what is perhaps most significant about WinCo

2 is that court adopted the Lutheran Services reasoning despite 3 the fact that WinCo did not object on privilege grounds. 4 Indeed, the WinCo court was presented with the "more typical 5 situation" of objections based upon, inter alia, relevancy and 6 lack of particularity - the two factors which 29 U.S.C. § 161 7 identifies

as grounds for petitioning for revocation of an Thus, the WinCo court did not take into

8 EEOC subpoena.

9 account the basic purpose of exhaustion - deference to agency 10 expertise, which was a critical underpinning of the Court's 11 reasoning in Lutheran Services. 12 13 all.

Tellingly, in its reply the EEOC did not mention WinCo at Instead, the EEOC attempts to distinguish Lutheran

14 Services and another case to which Bashas' cites, E.E.O.C. v. 15 Guess?, Inc., 176 F.Supp.2d 416, 422 (E.D.Pa. 2001), based on 16 the nature of the objections - both involved claims of 17 attorney client and work product privilege.

The EEOC

18 stresses, in contrast, that "Bashas' position is that the 19 information subpoenaed is not relevant and is overbroad[.] 20 Reply (doc. 28) at 4.

The EEOC thus reasons that those

21 objections are waived because "they are matters in which the 22 EEOC has expertise." 23

Id. As just stated,

WinCo disposes of this argument though.

24 the WinCo court applied the Lutheran Services rationale even 25 though WinCo objected to the EEOC subpoena on overbreadth and 26 relevance grounds.

Moreover, in addition to overbreadth and

27 relevance, Bashas' is objecting on abuse of process grounds. 28 The significance of this particular objection is that, as with

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1 the privilege objections in Lutheran Services, an abuse of 2 process objection is "quite different from the more typical 3 situation where a subpoena recipient's objections rest on 4 relevancy or particularity, the two factors listed in 29 5 U.S.C. § 161."

See 186 F.3d at 965.

Abuse of process it not

6 among the section 161 factors.

Thus, concern over deference

7 to agency expertise is not implicated here, at least as to 8 Bashas' abuse of process objection.

Indeed, understandably,

9 it might be difficult for the EEOC to remain wholly objective 10 if confronted with the abuse of process objection. 11

Additionally, it should be noted that in City of

12 Milwaukee, one of the cases to which the EEOC cites, the court 13 addressed the merits of the City's objections to an EEOC 14 subpoena, despite a finding of waiver.

That court candidly

15 noted that "one might be tempted to order enforcement . . . 16 without any further discussion or analysis," in light of the 17 waiver. City of Milwaukee, 919 F.Supp. at 1255. 18 "[D]eclin[ing] to succumb to that temptation[,]" the court 19 soundly stated that "the parties and the public are entitled 20 to a more thorough treatment of the issues presented" therein. 21 The same can certainly be said here. 22

For all of these reasons, the court finds that the

23 circumstances surrounding Bashas' failure to timely file a 24 petition to revoke or modify the May 28, 2008 subpoena are 25 "sufficiently extraordinary" to defeat the presumption that 26 Bashas' has waived its right to object because it did not 27 timely file such a petition.

The court stresses that it is

28 not adopting a per se rule that an abuse of process objection

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1 or, for that matter, any objection other than the two set 2 forth in 29 U.S.C. § 161 will automatically suffice to excuse 3 timely filing of a section 1601.16(b)(1) petition.

Rather,

4 primarily because of the somewhat unique facts of this case, 5 including this court's extensive familiarity with the 6 background of this action, resulting from the fact that it has 7 presided over the related Parra action for more than seven 8 years, the court finds that Bashas' has not waived its right 9 to object to the May 28, 2008 subpoena, despite failing to 10 file a § 1601.16(b)(1) petition. 11

Before turning to Bashas' discovery motion, it should be

12 noted that in its Reply the EEOC cites to, but does not 13 analyze, E.E.O.C. v. Sunoco, 2009 WL 197555 (E.D.Pa. 2009). 14 Sunoco, on the face of it, might appear to compel a different 15 result here.

There, the court found that Sunoco did waive its

16 objections to enforcing an EEOC subpoena where it failed to 17 timely file a petition to revoke or modify.

The court in

18 Sunoco found that Lutheran Services was not "controlling" 19 because of the nature of Sunoco's objections.

More

20 specifically, Sunoco objected on the "ground that [it] ha[d] 21 not been given fair notice of the existence and nature of any 22 pending charge against it[.]" Id. at *4 (internal quotation 23 marks and citation omitted).

The court found that objection

24 to be "the more typical" situation recognized by the Lutheran 25 Court. 26

Id.

As in Sunoco, Bashas' is making a lack of notice The EEOC overlooks the fact that, in sharp

27 objection.

28 contrast to the present case, Sunoco did not object to the

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1 EEOC's subpoena until 25 days after service.

On the other

2 hand, in the present action not only did Bashas' make its 3 objections to the subpoena on the same date as that 4 subpoena directed a response, but, for over a year before, 5 it had made nearly identical objections to substantially 6 similar EEOC Requests and two prior EEOC subpoenas.

That

7 critical distinction renders Sunoco inapplicable here. 8

In sum, despite the EEOC's contrary assertion, the

9 court finds that Bashas' did not waive its right to object 10 to the May 28, 2008 subpoena.

Therefore, the court will

11 next address Bashas' abuse of process objection, and more 12 particularly,

Bashas' motion for leave to conduct limited

13 discovery on that issue. 14 II. 15

"Motion for Leave to Conduct Limited Discovery" Primarily because it could not "ignore the broader

16 context in which this particular dispute has arisen, and 17 the timing of this OSC[,]" in Parra I this court deemed it 18 necessary to conduct a hearing on Bashas' discovery 19 motion.

E.E.O.C. I, 2009 WL 1783437, at *11.

Before

20 considering the impact of that hearing on Bashas' motion, 21 the court will reiterate the parties' respective burdens. 22 23

A.

Administrative Subpoena Enforcement Requirements

The EEOC must satisfy four requirements to establish

24 its entitlement to enforcement of an administrative 25 subpoena by this court. 26 27 28

The EEOC must show:

[1] that the investigation will be conducted pursuant to a legitimate purpose, [2] that the inquiry may be relevant to the purpose, [3] that the information sought is not already within the [agency's] possession, and [4] that

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1 2

the administrative steps required by the [agency's statutes or rules] have been followed. at *6 (quoting, inter alia,

3 E.E.O.C. I, 2009 WL 1783437,

4 United States v. Powell, 379 U.S. 48, 57-58, 85 S.Ct. 248, 5 13 L.Ed.2d 112 (1964)).

The sole basis for Bashas'

6 discovery motion is that the EEOC is not conducting this 7 particular investigation for a legitimate purpose.

Thus,

8 from Bashas' perspective, enforcement of this subpoena 9 would amount to an abuse of this court's process. 10 Likewise, in its response to the OSC (filed

after

11 E.E.O.C. I), Bashas' continues to insist that this 12 investigation is not being conducted for a legitimate 13 purpose.

Hence, Bashas' maintains that the court also

14 should deny enforcement on abuse of process grounds. 15 Interestingly, the EEOC did not address this issue until 16 the hearing when it responded, in essence, that this 17 investigation is being conducted for a legitimate purpose, 18 i.e. to aid in determining whether Bashas' has engaged in 19 discrimination against Hispanics. 20 21

B.

Bashas' Burden of Proof

Bashas' may be allowed to engage in "`[a] limited

22 amount of discovery . . . if, for example, [it] makes a 23 preliminary and substantial demonstration of abuse[.]'" 24 Id. (quoting Reich v. Montana Sulphur & Chemical Co., 32 25 F.3d 440, 449 (9th Cir. 1994) (internal quotation marks and 26 citations omitted)).

This requires Bashas' to "`present[]

27 meaningful evidence that the [EEOC] is attempting to abuse 28 its investigative authority.'" Id. (quoting Reich, 32 F.3d

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1 at 449 (internal quotation marks and citations omitted)). 2 Agreeing with Bashas', this court has previously found 3 that the "preliminary and substantial demonstration 4 standard does not mean actual proof." Id. (internal 5 quotation marks and citation omitted) (emphasis in 6 original).

Still, Bashas' "needs to . . .

develop facts

7 from which [this] court might infer a possibility of some 8 wrongful conduct" by the EEOC.

Id. at *7 (internal

9 quotation marks and citation omitted) (emphasis in 10 original).

The court has reviewed all of the record proof

11 with an acute awareness that Bashas' has a "relatively 12 heavy" burden to satisfy before even limited discovery 13 will be permitted here.

See E.E.O.C. I, 2009 WL 1783437,

14 at *6 (internal quotation marks and citation omitted). 15 16

C.

Legitimacy of Purpose

As thoroughly discussed in E.E.O.C. I, Bashas' based

17 its claimed need for discovery upon three factors: (1) the 18 timing of the EEOC's investigation and this enforcement 19 action; (2) purported sharing of information between the 20 EEOC and the Parra attorneys and/or the United Food and 21 Commercial Workers' Union ("UFCW"); and (3) the EEOC's 22 alleged "improper ulterior motive" for issuing the Charge 23 and this subpoena.

See id. at *7 (internal quotation In its response to the OSC

24 marks and citations omitted).

25 and during the hearing, Bashas' elaborated upon some of 26 those factors. 27

Bashas' views this enforcement action as nothing more

28 than "[a] course of conduct" by the EEOC "intended to

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1 harass . . . and to pressure" it with respect to the Parra 2 litigation and UFCW unionization efforts. 3 at 11:5-6.

Resp. (doc. 25)

To support this view, Bashas' notes that

4 during the past eight years the EEOC has periodically 5 conducted "`investigations'" of Bashas' either through 6 individual charges or this Charge; yet, to date, the EEOC 7 has found no violations.

Id.

at 9:25-27.

In terms of

8 the interplay between this enforcement action and Parra, 9 from Bashas' perspective, those "investigations" and the 10 "various subpoenas" which the EEOC has directed to 11 Bashas', have "not so coincidentally coincided with set 12 backs in the Parra litigation and parallel the UFCW's . . 13 . union campaign against" it. 14 omitted). 15

Id. at 10:27-11:1 (citation

Bashas' attempted to cast further doubt on the EEOC's

16 motives in pursuing this enforcement action by noting at 17 the hearing that it recently filed a Chapter 11 Bankruptcy 18 Petition.

Bashas' "believes" that a "large part of the

19 reason" the EEOC continues to pursue this action is 20 because it can "evade the bankruptcy court[,]" unlike 21 Parra, which as a result of Bashas' bankruptcy, is now 22 subject to a stay. Audio Tr. (Sept. 21, 2009) at 10:04 23 a.m. 24

The EEOC maintains that the Charge and the subpoena at

25 issue are part of its investigative authority to determine 26 whether Bashas' has engaged in discriminatory conduct. 27 This view would be much easier to embrace if it were not 28 for several factors, such as the striking similarity

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1 between Parra and this action.

The present Charge is

2 "from at least May 2004," whereas at least as to the pay 3 claim, April 2004 is the cut-off date in the Parra action. 4 Manget Aff. (doc. 2-2), attach. 1 thereto.

Other than

5 that, this Charge is practically indistinguishable from 6 the allegations in Parra.

Also, there is the fact that

7 for some inexplicable reason, the EEOC did not intervene 8 in Parra. 9

Moreover, as highlighted below, the EEOC has not been

10 continuously and actively pursuing this investigation. 11 Ordinarily the EEOC would have the prerogative to decide 12 at what pace and how vigorously to pursue a given 13 investigation, and it would be of little or no consequence 14 to the court.

Under the unique circumstances of this

15 case, however, and taking into account the extremely close 16 link between this action and Parra, the court cannot 17 disregard the manner in which the EEOC has conducted this 18 investigation.

For months at a time the EEOC allowed this Then, when the Parra

19 investigation to lay dormant.

20 plaintiffs have sustained a setback, seemingly the EEOC 21 has a renewed interest in pursuing this investigation. 22

With the advantage of full briefing on the OSC and the

23 recent hearing, the court finds that Bashas' has made the 24 requisite showing so as to justify limited discovery. 25 primary basis for this finding is timing - not just the 26 timing of the OSC vis-a-vis this court's February, 2, 2009 27 ruling precluding discovery, but the timing of this EEOC 28 investigation more generally.

The

The timing of the EEOC's

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1 actions which eventually resulted in the filing of this 2 OSC take on even greater import when viewed in conjunction 3 with the Parra action. 4 this court's

Motive, too, is a consideration in

finding that Bashas' may proceed with The EEOC's motives for filing this

5 limited discovery.

6 Charge and enforcement action become questionable when, 7 again, they are viewed in the larger context of Parra and 8 the UFCW's unionization efforts aimed at Bashas'. 9

Turning first to the Charge, both its timing and its

10 content raise concerns as to the EEOC's underlying purpose 11 and motive.

The Charge is dated May 9, 2007, which, Mr.

12 Tucek testified, was at the "height of the UFCW's campaign 13 against Bashas[.]" Audio Tr. (Sept. 21, 2009) at 10:18:2314 10:18:29 a.m. 15 of that Charge.

Of equal if not more import is the content Not only does it substantially mirror the

16 Parra allegations, but it seems that its scope was largely 17 attributable to the Parra's April, 2004 time limitation on 18 discovery of Bashas' wage data. 19

During the hearing, the EEOC candidly admitted that it Id. at

20 "certainly does not operate totally in a vacuum." 21 1:57 - 2:00 p.m.

As an agency, it is "aware" of other Id. at 2:00:32 p.m.

22 cases that are being litigated.

23 Potentially significant here is the EEOC's indication that 24 it communicates with other plaintiffs' counsel.

As the

25 EEOC describes it, it is "in touch with what is going on 26 in the litigation field."

Id. at 2:02 p.m.

So, "if the

27 Commissioner has an interest in an area" that is "being 28 litigated[,]" the EEOC "will often field questions[.]"

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1 Id. 2:02:25-34.

Moreover, although the EEOC vehemently

2 denies that it publicly discusses a charge prior to its 3 filing, it readily conceded that the existence of EEOC 4 charges may become known in the community through 5 witnesses, intervening charging parties, or the 6 respondents themselves.

See id. at 2:05:42-2:06:00 p.m.

7 Given this undoubtedly realistic depiction of how the EEOC 8 operates, it stands to reason that the EEOC could not 9 assure the court that the temporal scope of discovery in 10 Parra "did not have an effect on the time periods" set 11 forth in the Charge. 12 (emphasis added). 13

Id. at 2:00:53-2:01:15 p.m.

Shifting to the OSC, the court remains skeptical,

14 despite the EEOC's repeated assurances, that it is simply 15 coincidental that on February 2, 2009 - "the same day this 16 court denied discovery in Parra as to Bashas' post-April 17 2004 pay policy, the EEOC decided to file an OSC to 18 enforce a subpoena encompassing such pay data, a subpoena 19 which had been served over eight months earlier." 20 E.E.O.C. I, 2009 WL 1783437, at *7.

See

This skepticism

21 stems, in part, from the EEOC's candid responses to the 22 court's inquiries during the hearing. 23

As the EEOC explained it, the trial attorney

24 responsible for drafting this OSC completed it in October, 25 2008.

Audio Tr. (Sept. 21, 2009) at 2:03:14 p.m.

After

26 that, the OSC remained in the office of the supervisory 27 trial attorney for a "long time[.]" 28 p.m.

Id. at 2:03:15-26

Based upon the foregoing, the EEOC insists that the

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1 February 2, 2009 filing of this OSC "really" was just a 2 "coincidence[.]" 3

Id.

at 2:03:27 p.m.

Querying the EEOC, it readily acknowledged the court's

4 concern, but stressed that as an agency it would not delay 5 the filing of a court document.

Id. at 2:03:34-37 p.m.

6 The EEOC strongly suggests that the "coincidental" timing 7 of the filing of the OSC came about because of the EEOC's 8 workload priorities.

Litigation takes precedence over

9 subpoena enforcement matters, so there is "often a long 10 lapse" between the issuance of a subpoena and its 11 enforcement. 12

Id. at 2:03:43-46 p.m.

While the EEOC's explanation is plausible, like the It, too,

13 EEOC, this court does not operate in a vacuum.

14 must take into account "the broader context[.]" See 15 E.E.O.C. I, 2009 WL 1783437, at *11.

When the court does

16 that, the fact that, with the exception of a supervisor's 17 review, the OSC was complete in October, 2008, undermines 18 the EEOC's position.

If the OSC was essentially complete,

19 it strikes the court as odd that the EEOC would not have 20 filed this action sooner, especially if, as it professes, 21 it has an interest in eradicating workplace 22 discrimination. 23

The delay also cannot be justified based upon the The OSC itself is three pages of The supporting affidavit is

24 content of the OSC. 25 boilerplate language.

26 similarly terse and does not include voluminous exhibits. 27 Lastly, the EEOC's memorandum of law also is rather 28 cursory.

Thus, it strains credulity that even with

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1 limited institutional resources, this particular OSC could 2 not have been reviewed and filed until eight months after 3 service of the subpoena. 4

Apart from the OSC, the issue of timing continues to

5 be "troublesome" because the EEOC never sought to enforce 6 the three preceding subpoenas. 7 1783437, at *8.

See E.E.O.C. I, 2009 WL

The first subpoena, in the matter of

8 eight individuals including plaintiffs Parra and Estrada, 9 is dated May 11, 2006, slightly more than eight weeks 10 after this court denied the Parra plaintiffs' motion for 11 reconsideration on the issue of certifying a class as to 12 the pay claim.

That timing alone is curious.

13 Furthermore, the EEOC never responded to Bashas' petition 14 to revoke that subpoena.

In that petition, among other

15 grounds, Bashas' asserted that the May 2006 subpoena was 16 based upon the improper re-opening of the Parra and 17 Estrada charges.

See Doc. 25-3 at 79-81.

Instead of

18 responding to that petition, the EEOC "re-opened" the 19 charges of those individuals, which it had closed in 2002 20 after the filing of Parra. 21

Lastly, the court is well aware that the EEOC denies

22 that there is anything improper in its having 23 communication with third-parties. 24 2009) at 2:2:54-2:03:07 p.m.

Audio Tr. (Sept. 21,

Assuming, as the EEOC

25 assured the court, that it abides by its confidential 26 obligations, in the abstract the court would agree that 27 such communications are not improper.

The court is not

28 concerned with some theoretical communication between the

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1 EEOC and third-parties, however.

Here, the concern arises

2 because on this record the court can "infer a possibility 3 of some wrongful conduct" by the EEOC in terms of its 4 outside communications and motives.

E.E.O.C. I, 2009 WL

5 1783437, at *7 (internal quotation marks and citation 6 omitted) (emphasis in original).

For that reason, among After the

7 others, limited discovery is needed here.

8 completion of discovery, it may be that the court finds 9 that the EEOC has acted with a legitimate purpose in 10 filing this Charge and enforcement action.

That

11 determination cannot be made in a factual vacuum, however. 12

To conclude, in E.E.O.C. I this court found that,

13 "without more, . . . timing was not a sufficient basis for 14 allowing . . . discovery."

Id. at *8 (emphasis added).

15 Now, however, the timing factor tips decidedly in favor of 16 allowing Bashas' to conduct limited discovery.

Likewise,

17 the motive factor also augurs in favor of allowing such 18 discovery.

That is so because on the record as presently

19 constituted, Bashas' has made "a preliminary and 20 substantial demonstration of abuse[]" so as to justify 21 limited discovery on the issue of whether the EEOC has 22 filed this Charge and enforcement action for a legitimate 23 purpose. See id. at *6 (internal quotation marks and 24 citation omitted) (emphasis in original).

Although not

25 determinative, the court has taken into account, as 26 Bashas' put it, the "reality" under which it is 27 "operating" in that currently it has access to a "limited 28 amount of evidence[.]" Audio Tr. (Sept. 21, 2009) at

- 31 -

1 10:04:23-29 a.m.

Bashas' ability to conduct such

2 discovery will be fairly circumscribed, however, as set 3 forth in the next section. 4 5

D.

Sufficiency of Notice

Before delineating the scope of discovery, the court

6 recognizes that Bashas' also contends that this court 7 lacks jurisdiction to enforce the May 28, 2008 subpoena 8 because the Charge does not provide Bashas' with 9 sufficient notice of the allegations against it. 10 argument need not detain the court for long. 11

This

In E.E.O.C. v. Shell Oil Co., 466 U.S. 54, 104 S.Ct.

12 1621, 80 L.Ed.2d 41 (1984), the Court held that an EEOC 13 charge must meet the requirements of 42 U.S.C. § 2000e14 5(b), which "is a jurisdictional prerequisite to judicial 15 enforcement of a subpoena issued by the EEOC." 16 (footnote omitted).

Id. at 65

The court adopted the following

17 standard in the "pattern-and practice" context:7 18 19 20 21 22

Insofar as he is able, the Commissioner should identify the groups of persons that he has reason to believe have been discriminated against, the categories of employment positions from which they have been excluded, the methods by which the discrimination may have been effected, and the periods of time in which he suspects the discrimination to have been practiced. Especially given the

23 Id. at 73 (emphasis added).

24 prefatory phrase, "[i]nsofar as he is able," that standard 25 26 27 28
The Charge itself does not allege a "pattern and practice" of discrimination by Bashas', but that is a reasonable construction. And, evidently that is how Bashas' is construing the Charge as it invokes the Shell Oil standard, which expressly applies to pattern and practice allegations. Moreover, the EEOC has not disputed that characterization or Bashas' reliance upon that standard. Accordingly, for now, the court will adopt construction which the EEOC advances and apply the Shell Oil standard.
7

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1 is fairly lenient by any measure. 2

The Commissioner's Charge against Bashas' satisfies It identifies "Hispanics" as the "group of

3 that standard.

4 persons" the Commissioner "has reason to believe have been 5 discriminated against." 6 attach. 1 thereto.

See Manget Aff. (doc. 2-2),

The Charge also sets forth the alleged

7 methods of discrimination, i.e., "failing to pay Hispanic 8 employees comparable wages to non-Hispanic employees and 9 failing to promote Hispanics into Management positions." 10 Id.

Further, that Charge includes a time frame - "since Id.

11 at least May 2004[.]" 12

The Charge does not, however, as Bashas' emphasizes,

13 "identify the categories of employment positions 14 effected[.]" See id.

At this point in the proceeding, the

15 court does not find that that omission renders the Charge 16 jurisdictionally defective, especially given that a charge 17 "is not the equivalent of a complaint initiating a 18 lawsuit."

See id. at 68.

The function of a charge

19 differs from that of a complaint in an adversary 20 proceeding.

A Title VII charge "place[s] the EEOC on

21 notice that someone (either a party claiming to be 22 aggrieved or a Commissioner) believes that an employer has 23 violated the title."

Id.

The Commissioner's Charge

24 against Bashas' serves that function. 25

Likewise, there is no merit to Bashas' suggestion that

26 the Charge should have "indicat[ed] . . . which of 27 [Bashas'] 41,000 individuals have allegedly been subjected 28 to discrimination."

Resp. (doc. 25) at 11:20-21.

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1 Imposing a duty on the Commissioner to, among other 2 things, "specify the person discriminated against, . . . 3 would radically limit the ability of the EEOC to 4 investigate allegations of patterns and practices of 5 discrimination."

Shell Oil, 466 U.S. at 70.

Such a

6 specificity requirement, along with other requirements, 7 "would cut short most of [the EEOC's pattern and practice] 8 investigations[,]" which, as the Shell Oil Court found, 9 "would be manifestly inconsistent with Congress' intent." 10 Based upon the Shell Oil rationale, the court finds that 11 the Charge at issue herein is not jurisdictionally 12 defective because it does not specify the individuals 13 alleged to have been the subject of discrimination by 14 Bashas'.

In short, the court is convinced that this Consequently, there

15 Charge meets the Shell Oil standard.

16 is no merit to Bashas' assertion that this court does not 17 have jurisdiction to enforce the May 28th subpoena because 18 the Charge does not provide it with adequate notice of the 19 allegations against it. 20 21

E.

Relevancy

Lastly, Bashas' contends that the subpoena "seeks

22 information that is completely irrelevant to the 23 allegations of the Charge." 24 (emphasis omitted).

Resp. (doc. 25) at 12:11-12

Bashas' does not explicitly seek

25 denial of enforcement on that basis, although its response 26 could be so construed.

The court therefore is compelled

27 to at least comment upon that assertion. 28

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1

Most recently in Federal Express, the Ninth Circuit

2 reiterated, "[C]ourts must enforce administrative 3 subpoenas unless the evidence sought by the subpoena is 4 plainly incompetent or irrelevant to any lawful purpose of 5 the agency."

Federal Express, 558 F.3d at 854 (internal citations omitted)). Relevancy in

6 quotation marks and

7 this context "is determined in terms of the investigation 8 rather than in terms of evidentiary relevance." 9 (citation omitted).

Id.

"Moreover, the relevancy requirement Id. (quoting Shell Oil,

10 is `not especially constraining.'

11 466 U.S. at 68) "The term `relevant' is `generously 12 construed' to `afford[ ] the Commission access to 13 virtually any material that might cast light on the 14 allegations against the employer." 15 Oil, 466 U.S. at 68-69). 16

Id. (quoting Shell

Given the expansive definition of relevancy in this

17 context, at least at this juncture, the court is unable to 18 find that the May 28, 2008 subpoena should not be enforced 19 because it is seeking information which, assuredly, is not 20 relevant to its investigation.

Again, at least for the

21 moment, the court is satisfied that the subpoenaed 22 information, while perhaps "not necessarily relevant in an 23 evidentiary sense[,] . . .

will help the EEOC craft

24 additional information requests that may produce evidence 25 of discriminatory treatment." 26 27

See id.

F.

Scope of Discovery

Having found that Bashas' is entitled to conduct

28 limited discovery, the court will further define the scope

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1 of that discovery.

Bashas' expressly sought leave to

2 serve written discovery requests upon the following: 3 4 5 6

[T]he EEOC, the named plaintiffs and plaintiffs' counsel in the Parra action, including the Impact Fund and Davis, Cowell & Bowe, as well as Jocelyn Larkin, of the Impact Fund, and Elizabeth A. Lawrence, of Davis, Cowell & Bowell [sic] individually [firm] ... individually, and the UFCW[.]" Bashas' shall be allowed to

7 Mot. (doc. 10) at 11:12-15.

8 serve written discovery requests upon the foregoing 9 entities and individuals, but the court is limiting the 10 scope of those requests.

Bashas' seeks to obtain

11 "documents pertaining to any communications, information 12 or documents provided between the EEOC and these third 13 parties relating to this Commissioner's Charge or any 14 other charges currently under investigation by the EEOC." 15 Id. at 11:15-18 (emphasis added).

The documents which

16 Bashas' is seeking shall be limited to the Commissioner's 17 Charge dated May 9, 2007, which is the basis for the 18 EEOC's investigation and the issuance of the subpoena 19 which forms the basis for this enforcement action. 20 Bashas' shall not be allowed to obtain documents 21 pertaining to "any other charges currently under 22 investigation by the EEOC." 23

See id.

Bashas' also "seek[s] any documents relating to the

24 Parra litigation, which may or may not be subject to the 25 Parra court's confidentiality order, provided to the EEOC 26 by the Parra plaintiffs or their counsel." 27 20.

Id. at 11:18It will not,

The court will allow this discovery.

28 however, allow depositions without leave of court.

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1

Bashas' anticipates completing this discovery within Given that Bashas' is seeking discovery

2 six weeks. 3 against

multiple non-parties, the court will establish a

4 limitation on the time frame for service of discovery. 5 More specifically, Bashas' shall have twenty-five (25) 6 days from the date of entry of this order in which to 7 serve its written discovery requests.

Response to those

8 requests shall be in accordance with the Federal Rules of 9 Civil Procedure and all other applicable legal authority. 10 Accordingly, Bashas' has six weeks from the date of entry 11 of this order in which to complete the discovery which the 12 court is permitting. 13 14

Conclusion For the reasons set forth herein, the court hereby

15 ORDERS that: 16

(1) the "Application for an Order to Show Cause why an

17 Administrative Subpoena Should not be Enforced" (doc. 1) 18 filed by petitioner, the Equal Employment Opportunity 19 Commission, is DENIED without prejudice; and 20 21

IT IS FURTHER ORDERED that: (2) the "Motion for Leave to Conduct Limited

22 Discovery" (doc. 10) by respondent, Bashas', Inc. is 23 GRANTED. 24 / / / 25 26 27 28

Bashas' shall proceed with such discovery within

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1 the parameters set forth herein, including the six week 2 time frame, which commences on the entry date of this 3 order. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 Copies to counsel of record 18 19 20 21 22 23 24 25 26 27 28

DATED this 30th day of September, 2009.

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