v. City of Richmond

Filing 5

ORDER ENFORCING ADMINISTRATIVE SUBPOENA. Signed by Magistrate Judge Jacqueline Scott Corley on 1/2/2015. (ahm, COURT STAFF) (Filed on 1/2/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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U.S. EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION,
Plaintiffs,

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United States District Court
Northern District of California

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Case No. 14-mc-80345-JSC
ORDER ENFORCING
ADMINISTRATIVE SUBPOENA

v.
CITY OF RICHMOND,

Re: Dkt. No. 1

Defendant.

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In this administrative enforcement proceeding, applicant U.S. Equal Employment

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Opportunity Commission (“EEOC”) seeks an order enforcing an investigatory subpoena directed

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to respondent City of Richmond (the “City”) and seeking to recover attorneys’ fees and costs of

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enforcing the subpoena. (See Dkt. No. 1.) According to the EEOC, the subpoena is necessary to

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obtain information concerning a City employee’s charge of ongoing discrimination based on

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gender, race, religion, and age; unlawful disclosure of confidential medical information; failure to

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accommodate a disability; and retaliation. (Id. at 6; Dkt. No. 4 ¶ 3.)

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As applied through 29 U.S.C. § 209, “the district courts of the United States shall have

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jurisdiction to issue writs of mandamus commanding any person, partnership, or corporation to

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comply with this Act or any order of the [EEOC] made in pursuance thereof.” 15 U.S.C. § 49.

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However, “[t]he scope of judicial inquiry in an agency subpoena enforcement proceeding is

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narrow.” Harris v. Abbas, No. 5:13-mc-80030 EJD, 2013 WL 1089911, at *1 (N.D. Cal. Mar. 15,

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2013). A court will enforce an administrative subpoena only if the agency demonstrates that (1)

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the subpoena is within the agency’s authority; (2) the agency has satisfied its own procedural (due

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process) requirements; and (3) the information sought is relevant to its investigation. EEOC v.

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Shell Oil Co., 466 U.S. 54, 72 n.6 (1984); EEOC v. Children’s Hosp. Med. Ctr., 719 F.2d 1426,

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1428 (9th Cir. 1983) (en banc), abrogated on other grounds by Gilmer v. Interstate/Johnson Lane

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Corp., 500 U.S. 20 (1991). An affidavit from an agency official is sufficient to establish a prima

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facie showing that these requirements have been met. FDIC v. Garner, 126 F.3d 1138, 1143 (9th

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Cir. 1997). Once the agency makes that showing, the court must enforce the administrative

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subpoena unless the party under investigation can prove that the subpoena is unduly burdensome

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or otherwise unenforceable. Okla. Press Publ’g v. Walling, 327 U.S. 186, 217 (1946).

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Here, through the sworn declarations of agency employees (including the EEOC’s regional

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director, an attorney, and a staff member), the EEOC has established each of the above elements—

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authority, procedure, and relevance. (See generally Dkt. Nos. 2-4.) First, the EEOC has statutory
authority to issue administrative subpoenas during the course of investigations into charges of

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United States District Court
Northern District of California

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discrimination and retaliation under Title VII, the ADA, and the ADEA. See ADA Section 107,

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42 U.S.C. § 12117 (providing that the EEOC has the right to obtain access to records “relating to

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any matter under investigation” under the ADA), incorporating Section 709 of Title VII, id. §

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2000e-8 (authorizing the EEOC to investigate charges of discrimination); ADEA Section 7(a), 29

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U.S.C. § 626(a) (giving the EEOC “power to make investigations and require the keeping of

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records”), incorporating Fair Labor Standards Act Section 9, 29 U.S.C. § 209 (providing the

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EEOC the “power to require by subpoena . . . the production of all such documentary evidence

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relating to any matter under investigation”).

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Second, based on the information set forth in the EEOC’s application, it has complied with

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all procedural requirements set forth in agency regulations, most of which pertain to the inclusion

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of certain information in the subpoena itself. (Dkt. No. 1 at 12-13 (citations omitted).)

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Finally, the EEOC has also established that the evidence sought—notably, personnel

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records and documents reflecting the City of Richmond’s policies and procedures, disciplinary

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records, and employee complaint records—are relevant to the discrimination and retaliation charge

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that the agency is investigating. (Id. at 13-15.) Indeed, the EEOC’s description of the City of

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Richmond’s response to the agency’s repeated requests for documents suggests that the City

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concedes the documents’ relevance. (See, e.g., Dkt. No. 2 ¶¶ 4-5.)

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The EEOC has thus demonstrated that it has authority to issue the administrative subpoena,
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has followed the necessary procedural requirements, and that the subpoena itself seeks documents

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relevant to the discrimination investigation; thus, the administrative subpoena is enforceable. See

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Garner, 126 F.3d at 1143. The burden now shifts to the City to provide any justification for its

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failure to comply with the subpoena or to demonstrate that the subpoena is unduly burdensome or

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otherwise unenforceable. See Walling, 327 U.S. at 217.

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Accordingly, it is hereby ORDERED that the City shall file by January 20, 2015, a

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response to the application that sets forth the cause, if there be any, why the application should not

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be granted with respect to the agency’s requests for (1) an order enforcing the administrative

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subpoena; and (2) an award of fees and costs incurred in connection with the instant motion to
enforce. The City’s failure to respond may be deemed as a concession of the motion. It is further

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United States District Court
Northern District of California

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ORDERED that the EEOC shall timely serve copies of this Order and a copy of the application

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and supporting documents on the City.

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IT IS SO ORDERED.

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Dated: January 2, 2015
______________________________________
JACQUELINE SCOTT CORLEY
United States Magistrate Judge

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