Equal Employment Opportunity Commission v. DISH Network, LLC

Filing 27

ORDER Order to Show Cause 7 as to Item 14 in subpoena 1 is made absolute. DISH shall provide to the EEOC full and complete responses to Item 14 in subpoena 1 within the scope of paragraph 4 in this order, on or before 4/18/2014. Each party shall pay their own attorney fees and costs. By Magistrate Judge Michael J. Watanabe on 3/17/2014. (mjwcd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-03294-WJM-MJW
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,
v.
DISH NETWORK, LLC,
Defendant.

ORDER REGARDING
ORDER TO SHOW CAUSE CONCERNING ITEM 14 OF SUBPOENA 1
(Docket No. 7)

MICHAEL J. WATANABE
United States Magistrate Judge

This matter was before the court on March 4, 2014, for hearing on an Order to
Show Cause (docket no. 7, filed December 1, 2013). At this hearing, this court entered
a number of Orders concerning subpoena 1 and subpoena 2 that were served upon
Defendant DISH Network, LLC [“DISH”], by the Equal Employment Opportunity
Commission [“EEOC”]. See docket no. 19 for Orders entered on the record by
Magistrate Judge Watanabe. In addition, this court took under advisement Item 14 of
subpoena 1 and allowed both sides to submit supplemental legal briefs. See docket no.
19.
The parties have filed their supplemental legal briefs with the court. The EEOC
has filed its Reply in Favor of EEOC’s Application to Show Cause Why Administrative
Subpoenas Should Not be Enforced (docket no. 25). DISH has also filed the Defendant

2
DISH Network, LLC’s Post-Hearing Reply to Plaintiff EEOC’s Application for Order to
Show Cause (docket no. 24). The court has reviewed these supplemental legal briefs
(docket nos. 24 and 25). The court has further considered the arguments concerning
Item 14 in subpoena 1 during the hearing on March 4, 2014. In addition, the court has
taken judicial notice of the court’s file and has considered applicable Federal Rules of
Civil Procedure and case law. The court now being fully informed makes the following
findings of fact, conclusions of law, and order.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The court finds:
1.

That I have jurisdiction over the subject matter and over the parties
to this lawsuit;

2.

That venue is proper in the state and District of Colorado;

3.

That each party has been given a fair and adequate opportunity to
be heard;

4.

That the only remaining dispute is whether DISH should be required
to produce the names and contact information for individuals who
successfully completed the test, were hired by DISH, and are
current employees of DISH;

5.

That as to Item 14 in subpoena 1, the EEOC argues that it is
entitled to the contact information being requested in Item 14 of the
individuals described in paragraph 4 above, since only these
individuals can describe how the online process worked for
successful applicants. The individuals [i.e., potential witnesses]

3
also have indispensable information necessary to test the
legitimacy of DISH’s defenses, including: (a) whether or not there
really were effective ways to request an accommodation and
engage in the interactive process during the online applications
phase; (b) the extent to which the question of DISH’s online
application corresponds with the day-to-day operations and job
duties for which the application is prerequisite hence making them
job-related and consistent with business necessity; and, (c) whether
DISH provides or can provide scheduling accommodations for
people with disabilities who cannot work all shifts as the company
only just recently claims;
6.

That DISH argues first that the EEOC procedurally did not follow
and comply with its compliance manual. In particular, DISH argues
that the EEOC is in non-compliance in the serving and enforcing of
the subject subpoena 1 and 2. Secondly, DISH argues that the
requested contact information sought in Item 14 in subpoena 1 is
irrelevant;

7.

That DISH [Employer] has waived its objections to the enforcement
of subpoenas 1 by failing to file a timely petition. See EEOC v.
Aerotek, Inc., 498 Fed. Appx. 645, 649 (7th Cir. 2013). In this case,
DISH received the EEOC’s subpoena on July 2, 2013, at 10:30
a.m. (docket no. 3-10) and failed to timely file any petition to modify
or revoke the subpoena;

4
8.

That the only requirements on the EEOC when serving or enforcing
a subpoena are those provided for by law and/or federal regulation.
“[T]he EEOC need not follow the procedures outlined in its
compliance manual in every case. The manual’s provisions are
discretionary in this respect . . . .” EEOC v. University of Pittsburgh,
643 F.2d 983, 986 n.4 (3rd Cir. 1980); and

9.

That the names and contact information sought in Item 14 in
subpoena 1 are relevant to the charge being investigated by the
EEOC. The names and contact information are relevant to the
EEOC’s investigation of alleged unlawful testing and failure to
provide reasonable accommodation to applicants with disabilities.
Lastly, the EEOC is not seeking the names and contact information
from DISH for an improper motive or in bad faith.
ORDER

WHEREFORE, based upon these findings of fact and conclusions of law this
court ORDERS:
1.

That the Order to Show Cause (docket no. 7, filed December 11,
2013) as to Item 14 in subpoena 1 is made absolute. DISH shall
provide to the EEOC full and complete responses to Item 14 in
subpoena 1 within the scope of paragraph 4 above on or before
April 18, 2014; and

2.

That each party shall pay their own attorney fees and costs.

5
Done this 17th day of March 2014.
BY THE COURT
s/Michael J. Watanabe
MICHAEL J. WATANABE
U.S. MAGISTRATE JUDGE