Equal Employment Opportunity Commission v. University of Chicago Medical Center

Filing 20

WRITTEN Opinion entered by the Honorable Virginia M. Kendall on 4/16/2012:For the reasons stated above, the Court grants the Order to Show Cause Why an Administrative Subpoena Should Not Be Enforced. Entered by the Honorable Virginia M. Kendall on 4/16/2012.Mailed notice(tsa, )

Order Form (01/2005)

United States District Court, Northern District of Illinois
Name of Assigned Judge
or Magistrate Judge

Virginia M. Kendall

CASE NUMBER

11 C 6379

CASE
TITLE

Sitting Judge if Other
than Assigned Judge

DATE

4/16/2012

Equal Employment Opportunity Commission v. University of Chicago Medical Center

DOCKET ENTRY TEXT

For the reasons stated above, the Court grants the Order to Show Cause Why an Administrative Subpoena
Should Not Be Enforced.

O[ For further details see text below.]

Docketing to mail notices.

STATEMENT
Recently, one of the parties contacted the Court to determine the status of a pending motion in this
matter and to determine if the parties were required to submit any further briefing. A review of the docket
reflects that through some clerical error, the suit was inadvertently terminated on September 14, 2011. As
such, the pending motion was removed from the list of pending motions that the Court relies on to file its
rulings. Since the case was terminated, all motions in this case were erased from the Court’s pending motions
list –a list which numbers over 100 on any given day of the week – and therefore the motion had never been
addressed by the Court. Had the issue been brought to the Court’s attention earlier, most certainly the Court
would have addressed it before now. Parties, however, fear offending a busy district court judge by pestering
her with the need for their rulings. Unfortunately here, that meant that the Court never even knew it was
being dilatory. Regardless, the case is now back on the docket, the motion is now fully briefed and the Court
has a ruling for the parties with an apology for having the motion slip through the cracks, and a direction not
to be timid in the future and freely notify the Court of any motions pending more than three months.
The Equal Employment Opportunity Commission made an application for an Order to Show Cause
Why an Administrative Subpoena Should Not Be Enforced. The EEOC describes their application as an
action for enforcement of a subpoena issued to The University of Chicago Medical Center pursuant to
Section 107(a) of the Americans with Disabilities Act. See 42 U.S.C. §12117(a). For the following reasons,
the Court grants the Order to Show Cause Why an Administrative Subpoena Should Not Be Enforced.
BACKGROUND
The EEOC is currently investigating allegations of discrimination filed against the University of
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STATEMENT
Chicago Medical Center (“UCMC”). These charges arise under the ADA, and include allegations of
discrimination based on disability, race, age and retaliation. The EEOC states that its investigation to date
has shown that UCMC may maintain a blanket leave policy under which employees are summarily
discharged after 12 weeks of leave. Such a policy would violate the ADA. Based on that understanding, the
EEOC issued a request for information on May 26, 2010. This request required UCMC to provide
information to the EEOC by June 11, 2010. UCMC partially responded to the EEOC’s request on July 12,
2010. UCMC expressed concerns about divulging confidential medical information in violation of HIPAA
and its more restrictive Illinois law counterpart, IMHA. UCMC asked that the parties pressing charges with
the EEOC execute releases of their medical files. On July 14, 2010, the EEOC issued the subpoena that is
currently in controversy. This administrative subpoena requires UCMC to produce to the EEOC:
1. The complete medical files of the parties charging discrimination with the EEOC.
2. A document identifying all employees who were employed at any time from May 1, 2009,
to the present, who have requested any type of absence due to a medical condition, at any
time during their employment. For each individual, provide their: name, race, age, date of
birth, position title(s), type of absence requested, reason for requested absence, beginning
and anticipated ending date of absence, actual ending date of absence, date and reason for
discharge (if applicable), current or last known home address(es) and all known telephone
number(s).
3. For all employees who were employed at any time from May 1, 2009, to the present, all
documentation of their requests to extend a leave of absence due to a medical condition.
(emphasis added). UCMC petitioned to modify the subpoena as overly broad. UCMC argued that the
subpoena required documentation of employees who missed just one day of work, among other things. The
EEOC denied UCMC’s request on November 30, 2010. To date, UCMC states that it has complied with the
first part of the subpoena by producing the requested medical files. It acknowledges that it has substantially
complied with the second part of the subpoena by supplying a document identifying employees who
requested medical absence during the relevant time period. And it claims that it has worked with the EEOC
to narrow and answer the third part of the subpoena.
The present issue is whether UCMC must comply with the EEOC’s subpoena by providing the
balance of the information sought within the second request of the subpoena. Specifically, UCMC does not
wish to disclose to the EEOC the contact information for two former employees. These two former
employees, Susan Slaviero and Cynthia St. Aubin, were UCMC’s Employee/Labor Relations Manager and
UCMC’s Director of the Recruitment and Nursing Career Center, respectively. Before St. Aubin became
Director of the Recruitment and Nursing Career Center she was Director of the Nursing Career Center. In
furtherance of Slaviero’s role, she had conferences with in-house and outside counsel regarding UCMC’s
disability and leave policies and practices. In this capacity, she sought legal advice on how to handle specific
employees’ leave situations. St. Aubin oversaw requests from employees to return from leave and evaluated
their qualifications to do so.
LEGAL STANDARD
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STATEMENT
Subpoena enforcement proceedings “‘are designed to be summary in nature.’” EEOC v. United Air
Lines, Inc., 287 F.3d 643, 649 (7th Cir. 2002) (quoting EEOC v. Tempel Steel Co., 814 F.2d 482, 485 (7th
Cir. 1987)). A district court must enforce an administrative subpoena “[a]s long as the investigation is within
the agency’s authority, the subpoena is not too indefinite, and the information sought is reasonably relevant .
. . .” Tempel Steel Co., 814 F.2d at 485. Yet an agency’s subpoena power is not limitless. E.E.O.C. v. Shell
Oil Co., 466 U.S. 54, 72 (1984).
Privileges are governed by the principles of the common law as they may be interpreted by the courts in the
light of reason and experience. See Fed. R. Evid. 501. However, in a civil action, with respect to an element
of a claim or defense to which State law supplies the rule of decision, the privilege is determined under State
law. Id. In this case, the EEOC is conducting its investigation pursuant to the ADA, and consequently the
privilege is determined by federal law. The Rules of Professional Conduct for the Northern District of
Illinois are identical to the ABA Model Rules. ABA Model Rule 4.2 states:
During the course of representing a client a lawyer shall not communicate or cause another to
communicate on the subject of the representation with a party the lawyer knows to be
represented by another lawyer in that matter unless the first lawyer has obtained the prior
consent of the lawyer representing such other party or as may otherwise be authorized by law.
ABA Model Rule 4.2 Comment 7 states that those who are considered represented are (a) employees who
supervise, direct or regularly consult with the corporation’s lawyer regarding the matter; (2) employees who
are authorized to obligate the corporation with respect to the matter; and (3) employees whose acts or
omissions in connection with the matter may be imputed to the organization for purposes of civil or criminal
liability; and notes that:
In the case of a represented organization, [Rule 4.2] prohibits communications with a
constituent of the organization who supervises, directs or regularly consults with the
organization’s lawyer concerning the matter or has authority to obligate the organization with
respect to the matter or whose act or omission in connection with the matter may be imputed
to the organization for purposes of civil or criminal liability. Consent of the organization’s
lawyer is not required for communication with a former constituent. If a constituent of the
organization is represented in the matter by his or her own counsel, the consent by that
counsel to a communication will be sufficient for purposes of this Rule. Compare Rule 3.4(f).
In communicating with a current or former constituent of an organization, a lawyer must not
use methods of obtaining evidence that violate the legal rights of the organization. See Rule
4.4.
(emphasis supplied).

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STATEMENT
DISCUSSION
The EEOC argues that its subpoena should be enforced because: (1) UCMC does not have any valid,
independent defense for non-compliance with the subpoena because it is valid and within the agency’s
authority; (2) compliance with the subpoena will not impose an undue burden on UCMC; and (3) UCMC has
no basis for conditioning compliance with the subpoena on the EEOC permitting UCMC to be present at
investigatory interviews with former manager. In response, UCMC argues that ABA Model Rule of
Professional Conduct 4.2 places a bar on ex parte communications with former managers about their past
managerial decision-making conduct, which could be imputed onto UCMC for liability purposes. Further,
UCMC argues that compliance with the subpoena creates a potential risk of disclosure of information
protected by attorney-client privileged. UCMC does not dispute that the subpoena is within the Agency’s
power or that compliance will not impose an undue burden on UCMC. The dispute between the parties
centers around the applicability of Rule 4.2 on former employees of UCMC.
The Seventh Circuit has not addressed the issue of whether former employees are excluded from the
protections of Rule 4.2. The Seventh Circuit has adopted the three-part test set out by the ABA in its
commentary to the Model Rules for determining whether a current employee is within the scope of the rule.
See Weibrecht v. Southern Illinois Transfer, Inc., 241 F.3d 875, 881 (7th Cir. 2001). Courts in this District
have held that the protections of Rule 4.2 do not attach to former employees, even those in managerial
positions. See, e.g., Thorn v. Sunstrand Corp, 1997 WL 627607, at *3 (N.D. Ill. Oct. 10, 1997) (“former
employees do not constitute parties ‘represented by another lawyer’ and, therefore, counsel is not restricted
from communicating with an adverse party’s former employees pursuant to Rule 4.2”) ; Orlowski, 937 F.
Supp. at 728 (“This Court finds that former employees, including former managers, are not encompassed by
Rule 4.2, and may freely engage in communications with Plaintiffs’ counsel.”); Shamlin v. Commonwealth
Edison Co., 1994 WL 148701 at *3 (N.D. Ill. Apr. 20, 1994) (“In addition, the majority of courts that have
addressed the issue of the application of Rule 4.2 to former employees of a corporate party, have held that
Rule 4.2 permits counsel to communicate with and interview any former employees of a corporate
adversary”). A number of opinions from other districts confirm that this is now the “majority view.” See,
e.g., Gianzero v. Wal-Mart Stores, Inc., 2011 WL 1740624, at *2-3 (D. Colo. May 5, 2011) (“the need to
inquire into the responsibilities and authority of a constituent does not apply to an organization’s former
constituents...consent of the organization’s lawyer is not required for communication with a former
constituent.”) (internal citations omitted); Arista Records LLC v. Line Group LLC, 784 F.Supp.2d 398, 416
(S.D.N.Y. May 2, 2011) (“A lawyer may have ex parte contact with the opposing party's former
employees.”); Hobson v. Commc’ns Unlimited, Inc., 2011 WL 414948, at *2 (N.D. Ga. Feb. 7, 2011)
(Moreover, th[e] protection [of Rule 4.1] does not apply to former managers”); Smith v. Kalamazoo
Ophthalmology, 322 F.Supp.2d 883, 888-891 (W.D. Mich. 2004) (“A majority of courts that have considered
the issue have held that Rule 4.2 does not bar ex parte communications with an adversary's former employees
who are not themselves represented in the matter.”).
The possibility that former employees may reveal damaging information is insufficient to implicate
Rule 4.2. See, e.g., Orlowski, 937 F. Supp. at 728 (citing Ahern v. Board of Educ. Of City of Chicago, 1995
WL 680476, at *1 (N.D. Ill. Nov. 14, 1995)). Former employees are outside the scope of Rule 4.2 because,
unlike current employees, former employees cannot bind the corporation. See id. (citing Brown v. St. Joseph
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STATEMENT
County, 148 F.R.D. 246, 252 (N.D. Ind. 1993)). Furthermore, Rule 4.2 does not prevent a plaintiff’s lawyer
from contacting former employees without the consent of the organization’s lawyer because statements by
former employees can no longer constitute admissions of the corporation or acts binding on the corporation,
since they are no longer agents of the corporation. See, e.g., Shamlin v. Commonwealth Edison Co., 1994 WL
148701 at *3 (N.D. Ill. Apr. 20, 1994). The Court concludes that the EEOC can contact former managers ex
parte for the purposes of this administrative investigation, prior to the potential commencement of a lawsuit.
However, former employees are barred from discussing with the EEOC any privilege information that they
may be privy to. See, e.g., Orlowski, 937 F. Supp. at 728.

CONCLUSION
For the reasons stated above, the Court grants the Order to Show Cause Why an Administrative
Subpoena Should Not Be Enforced.

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