Equal Employment Opportunity Commission v. DolGenCorp LLC

Filing 111

MEMORANDUM Opinion and Order Signed by the Honorable Andrea R. Wood on 5/5/2015. Mailed notice(ef, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
U.S. EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION,
Plaintiff,
v.
DOLGENCORP, LLC d/b/a DOLLAR
GENERAL,
Defendant.

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No. 13-cv-04307
Judge Andrea R. Wood

MEMORANDUM OPINION AND ORDER
Plaintiff U.S. Equal Employment Opportunity Commission (“EEOC”) has brought this
lawsuit challenging the use of criminal background checks for potential employees by Defendant
Dolgencorp, LLC (“Dollar General”) under Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e et seq. Specifically, the EEOC alleges that Dollar General’s use of criminal background
checks has a disparate impact on African-American job applicants. Now before the Court are (1)
the EEOC’s Motion to Compel Production of Documents and Responsive Data (“EEOC’s
Motion”), and (2) Dollar General’s Motion to Compel Discovery (“Dollar General’s Motion”).
(Dkt. Nos. 61, 63.) For the reasons set forth below, the Court grants the EEOC’s Motion and
grants Dollar General’s Motion in part.
DISCUSSION
The Federal Rules of Civil Procedure allow parties to “obtain discovery regarding any
nonprivileged matter that is relevant to any party’s claim or defense.” See Fed. R. Civ. P.
26(b)(1). Evidence is relevant if it has any tendency to make the existence of any fact of
consequence to determining the action more probable or less probable than it would be without
the evidence. Fed. R. Evid. 401. “Relevant information need not be admissible at the trial if the

discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Fed. R.
Civ. P. 26(b)(1). The objecting party bears the burden of establishing why a particular discovery
request is improper. Kodish v. Oakbrook Terrace Fire Prot. Dist., 235 F.R.D. 447, 450 (N.D. Ill.
2006).
I.

The EEOC’s Motion
The EEOC’s Motion seeks to compel Dollar General to produce (1) electronically-stored

information (“ESI”) containing personal information of Dollar General’s conditional hires, such
as their names, social security numbers, addresses, and telephone numbers; and (2) complete
versions of documents that Dollar General previously produced with portions redacted due to
purported lack of relevance. The Court addresses each of these requests in turn.
A.

Personal Information of Dollar General Conditional Hires

The EEOC seeks production from Dollar General of ESI containing personal information
regarding Dollar General’s conditional hires, including certain data fields that the EEOC argues
are necessary to conduct its disparate impact analysis and to identify employees impacted by the
background check policy. Dollar General has provided some of the requested information to the
EEOC, but it has refused to provide the names, complete social security numbers, addresses,
phone numbers, and complete dates of birth of its conditional hires. The EEOC claims that it
requires the information being withheld to link separate databases maintained by Dollar General
and two of its vendors, to submit the information to an expert who will then analyze whether any
statistical effect observed is due to race or other demographic factors, and to contact potential
class members and witnesses. In response, Dollar General argues that the personal information
sought by the EEOC is irrelevant and not necessary for any of the cited purposes. The Court
finds the EEOC to have the better argument.

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The EEOC has established that the personal information it seeks is relevant to this
litigation. The requested data fields are unquestionably calculated to lead to the discovery of
admissible evidence by permitting the EEOC and its experts more effectively to analyze the
statistical impact of Dollar General’s use of criminal background checks. As explained above,
the information sought will be used to link several large databases together, allowing the EEOC
to perform its disparate impact analysis.1 It will also permit the EEOC’s experts to analyze
whether non-racial demographic factors may have caused a statistical impact. In this respect, this
case differs from EEOC v. McLane Co., Inc., No. CV-12-615-PHX-GMS, 2012 WL 1132758
(D. Ariz. April 12, 2012), which Dollar General cites. In that action to enforce an investigative
subpoena, the district court found that the EEOC had not explained how the detailed employee
information it requested would be relevant to its investigation. Id. at *5.
Dollar General also argues that producing the requested information would infringe upon
the privacy of its conditional hires. Although Dollar General cites case law to support the
argument that it has a privacy interest in the personal information of its employees, all of the
cases it cites acknowledge that this type of information is nonetheless discoverable when
sufficiently relevant to the litigation. Additionally, the Court notes that there is a confidentiality
order in place in this case that expressly prohibits the use or disclosure of personal information
except as necessary for purposes of this litigation. Given the relevance of the information sought
and the protection provided by the confidentiality order, the Court finds that Dollar General has
failed to establish that the EEOC’s request is improper or otherwise justify withholding the
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Dollar General represents that, in lieu of providing the requested personal information, it can assign a
unique identifying number to each conditional hire that will just as easily allow the EEOC to link the
separate databases. However, given the utility of the requested personal information to the EEOC’s
statistical analysis, as well as concerns regarding whether the linking process can be performed in a
verifiably accurate manner, Dollar General’s proposed approach would likely engender additional
discovery disputes and frustrate resolution of this case.

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information. Thus, Dollar General is directed to produce the requested personal information
regarding conditional hires.
B.

Unredacted Versions of Documents

The EEOC next complains that Dollar General has produced documents with pages
pulled and text redacted on the basis of relevance, and it asks the Court to compel Dollar General
to produce complete versions. As an example, as part of its production of an operations manual,
Dollar General has produced a page entitled “Background Checks,” which includes a description
of its background check policy, but half of the page is redacted. Dollar General claims that the
redacted portions of this and the other documents are irrelevant and not responsive to the
EEOC’s document requests.
Although Dollar General cites a number of cases where courts have allowed a party to
redact non-relevant portions of documents, redaction of otherwise discoverable documents is the
exception rather than the rule. What constitutes relevant information is often a matter of
judgment, and even “irrelevant information within a document that contains relevant information
may be highly useful to providing context for the relevant information.” Bartholomew v. Avalon
Capital Grp., Inc., 278 F.R.D. 441, 451 (D. Minn. 2011); see also In re State St. Bank & Trust
Co. Fixed Income Funds Inv. Litig., Nos. 08-1945, 08-333, 2009 WL 1026013, at *1 (S.D.N.Y.
Apr. 8, 2009) (“[Unilateral] redactions are generally unwise. They breed suspicions, and they
may deprive the reader of context.”). Moreover, the cases cited by Dollar General generally
involve redaction of sensitive financial or personal information that is also irrelevant to the
litigation. See, e.g., Diak v. Dwyer, Costello & Knox, P.C., 33 F.3d 809, 813 (7th Cir. 1994)
(upholding district court’s denial of request for unredacted tax returns after finding that redacted
material was irrelevant to issues at hand); Kirsch v. Brightstar Corp., No. 12 C 6966, 2014 WL

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4560978, at *6 (N.D. Ill. Sept. 11, 2014) (ordering production of unredacted documents “where
there does not appear to be any information that is sufficiently sensitive to warrant redaction”);
RBS Citizens, N.A. v. Husain, 291 F.R.D. 209, 222-23 (N.D. Ill. 2013) (allowing the redaction of
“business and financial information” relating to non-party clients of the plaintiff).
In this case, Dollar General has failed to establish that the information it redacted is
sufficiently sensitive to warrant redaction on the basis of relevance. This is especially true in
light of the confidentiality order in place in this case. At oral argument, Dollar General described
the type of commercially sensitive information that it has redacted as including “how to stage the
back room” and “where to put the green beans.” While the Court does not wish to minimize the
commercial importance of this sort of information to Dollar General, such information does not
seem to be particularly susceptible to misuse by the EEOC and any concerns that it might be
disclosed to third parties are adequately addressed by the confidentiality order. Thus, the Court
directs Dollar General to produce unredacted versions of the materials previously produced in
redacted form.
II.

Dollar General’s Motion
Dollar General’s Motion seeks to compel the EEOC to produce (1) information relating

to the EEOC’s pre-suit analysis of the disparate impact allegedly caused by Dollar General’s
hiring policies; (2) the EEOC’s policies regarding its own use of background checks and criminal
history records when making employment decisions; (3) information relating to background
check policies that the EEOC has found to be permissible in other cases; and (4) supplemental

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responses to interrogatories to which the EEOC originally responded by directing Dollar General
to its administrative investigative file.2
A.

The EEOC’s Analyses of Disparate Impact

Dollar General’s Interrogatory No. 2 requests that the EEOC:
Identify the name of any person(s) who provided the statistical analysis to support
the allegation contained in Paragraphs 10-21 of the Complaint that Defendant’s
background check policy had/has a disparate impact upon African Americans, and
for each person, identify all of his/her working papers, what program(s) and
methodology he/she used to conduct the statistical analysis, any regressions
he/she used, and any factor or factors he/she considered, including but not limited
to the nature or type of crime, the location, and/or the date of the crime as
compared to the date of the conditional offer.
In response, the EEOC identified the person who provided the statistical analysis to support its
allegations in the complaint but objected to answering the remainder of the interrogatory on the
ground that it calls for information protected from disclosure by the government deliberative
process privilege. Similarly, Dollar General’s Request for Production No. 3 requests: “All
studies, reports, findings, or analyses of disparate impact regarding Defendant’s background
check policy or process that are in the possession of, utilized by, or prepared by the EEOC.” In
response to this request, the EEOC claimed to have produced nonprivileged portions of its
administrative file but refused to turn over additional responsive information on relevancy
grounds, as well as based on the government deliberative process privilege and attorney work
product protection.
The “deliberative process privilege protects communications that are part of the decisionmaking process of a governmental agency.” United States v. Farley, 11 F.3d 1385, 1389 (7th Cir.
1993). The privilege “does not justify the withholding of purely factual material, nor of

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Dollar General also moved to compel additional discovery responses to their Interrogatories No. 11 and
No. 17. (Def.’s Mot. at 11-13, Dkt. No. 63.) In its reply, however, Dollar General dropped its requests for
relief with respect to these interrogatories. (Def.’s Reply at 4 n.1, Dkt. No. 70.)

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documents reflecting an agency’s final policy decisions, but it does apply to predecisional policy
discussions, and to factual matters inextricably intertwined with such discussions.” Enviro Tech
Int’l, Inc. v. U.S. E.P.A., 371 F.3d 370, 374-75 (7th Cir. 2004). “[I]n order to qualify for the
privilege, a document must be both [1] predecisional in the sense that it is actually antecedent to
the adoption of an agency policy, and [2] deliberative in the sense that it is actually . . . related to
the process by which policies are formulated.” Id. at 375 (citations, quotation marks, and
alterations omitted). A party seeking documents within the scope of the deliberative process
privilege may require the government to produce the documents by showing that the party’s need
for the documents outweighs the government’s interest in not disclosing them. Farley, 11 F.3d at
1389-90.
The EEOC also invokes attorney work product protection to avoid producing the
responsive materials. This doctrine shields documents prepared by attorneys in anticipation of
litigation for the purpose of analyzing and preparing a client’s case. See Fed. R. Civ. P. 26(b)(3);
Sandra T.E. v. S. Berwyn Sch. Dist. 100, 600 F.3d 612, 618 (7th Cir. 2010). The threshold
determination for protectable work product generally is “whether, in light of the nature of the
document and the factual situation in the particular case, the document can fairly be said to have
been prepared for or obtained because of the prospect of litigation.” N. Shore Gas Co. v. Elgin,
Joliet & E. Ry. Co., 164 F.R.D. 59, 61 (N.D. Ill. 1995) (quoting Binks Mfg. Co. v. Nat’l Presto
Indus., Inc., 709 F.2d 1109, 1119 (7th Cir. 1983)).
According to the EEOC, members of its staff prepared certain statistical analyses during
the EEOC’s investigation to determine whether to issue a reasonable cause determination of
discrimination. The EEOC further claims that an EEOC attorney provided an EEOC investigator
with a statistical analysis. These statistical analyses—identified in the EEOC’s privilege log by

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the Bates ranges E0000644-50, E0000813-816, E0000817-21, and E0000654—were relied upon
by the agency in deciding to issue a reasonable cause determination and, later, by agency
attorneys in making the decision to sue.
The Court is unable to determine the legitimacy of the EEOC’s deliberative process and
attorney work product assertions without reviewing the documents in question. Accordingly, the
Court orders the EEOC to deliver copies of the withheld documents to the magistrate judge (who
is now responsible for supervising discovery) for in camera review. Upon reviewing the
documents along with the EEOC’s privilege log, the magistrate judge will determine the
applicability of the asserted privileges in light of the governing legal principles. As part of her
review of the deliberative process issue, the magistrate judge will also consider the arguments
raised in Dollar General’s motion to strike the declaration submitted by EEOC Chair Jenny R.
Yang in support of the agency’s deliberative process claims.
B.

The EEOC’s Policies and Procedures

In its Requests for Production No. 36 through No. 39, Dollar General seeks the EEOC’s
policies regarding its own use of background checks and criminal history records when making
employment decisions, including any “hiring matrix” that demonstrates how the EEOC considers
various crimes. Similarly, in its Interrogatories No. 12 through No. 14, Dollar General asks the
EEOC to identify various facts relating to its use of background checks and criminal history in
making hiring decisions. According to Dollar General, information regarding the EEOC’s
background checks is discoverable because it is relevant to Dollar General’s business necessity
and estoppel defenses. The Court disagrees.
Despite Dollar General’s assertions to the contrary, the requested information is not
relevant to its business necessity defense. Under a disparate impact theory of employment

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discrimination, once a plaintiff shows that a challenged employment practice has a disparate
impact, the burden shifts to the employer to show that “the challenged practice is job related for
the position in question and consistent with business necessity.” 42 U.S.C. § 2000e-2(k)(1)(A)(i)
(emphasis added); see also Price v. City of Chicago, 251 F.3d 656, 659 (7th Cir. 2001). Dollar
General is a retail operation, and there is no indication that the functions performed by its
employees are in any way comparable to those undertaken by the EEOC’s employees. See, e.g.,
EEOC v. JBS USA, LLC, No. 8:10 cv 318, 2012 WL 169981, at *6 (D. Neb. Jan. 19, 2012)
(finding testimony on the EEOC’s policies regarding religious accommodations to be irrelevant);
United States v. N.Y. Metro. Transp. Auth., No. CV 2004-4237(SLT) (MDG), 2006 WL 708672,
at *1-3 (E.D.N.Y. Jan. 12, 2006) (government policies on religious accommodations irrelevant
where defendant failed to show factual similarities between it and the government agency).
Dollar General cites several cases from other districts in which courts have found that a
government agency’s own employment policies were relevant to a defendant’s business
necessity defense. However, the Court finds these cases unpersuasive in light of the plain
language of 42 U.S.C. § 2000e-2, as well as the U. S. Supreme Court case Johnson v. Mayor &
City Council of Baltimore, 472 U.S. 353 (1985). That case considered an issue similar to the one
here: whether a federal statute requiring federal firefighters to retire at age 55 established that
age was a bona fide occupational qualification for nonfederal firefighters under the Americans
with Disability Act. Id. at 358-59. The Supreme Court ultimately found that the federal
retirement age was irrelevant to the plaintiffs’ claims and that “it would be error for a court” to
give such evidence “any weight.” Id. at 370. See also EEOC v. Illinois, No. 86 C 7214, 1991 WL
259027, at *4 (N.D. Ill. Nov. 29, 1991) (“[I]n determining whether an employer’s employment

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policy is [a bona fide occupational qualification], federal provisions regarding employment
requirements are not persuasive.”).
The Court also rejects Dollar General’s argument that the EEOC’s hiring qualifications
are relevant in light of its affirmative defense of estoppel. The Supreme Court has “reversed
every finding of estoppel that [it has] reviewed” where the defense has been asserted against a
government agency attempting to enforce the law, and has remarked that the arguments in
support of a per se rule that estoppel may never lie against the government are “substantial.”
Office of Pers. Mgmt. v. Richmond, 496 U.S. 414, 422 (1990). Even if an estoppel defense may
properly be asserted against a government agency, a party seeking such a finding must prove
(and plead) the traditional elements of estoppel: that there was “(1) misrepresentation by the
party against whom estoppel is asserted, (2) reasonable reliance on that misrepresentation by the
party asserting estoppel, and (3) detriment to the party asserting estoppel.” Kennedy v. United
States, 965 F.2d 413, 417 (7th Cir. 1992). In addition, a party seeking to estop the government
from enforcing the law must show affirmative misconduct on the part of the government. Id.
Estoppel is an equitable defense that must be pleaded with the specific elements required to
establish the defense. See Reis Robotics USA, Inc. v. Concept Indus., Inc., 462 F. Supp. 2d 897,
907 (N.D. Ill. 2006).
Dollar General has failed to plead specific elements and instead has simply included
estoppel in a list of various equitable defenses, most of which have no apparent application to
this case:
EEOC’s claims on behalf of alleged aggrieved individuals for damages or other
relief on behalf of allegedly injured individuals are barred by the doctrines of
waiver, estoppel, res judicata, issue preclusion, and/or claim preclusion.

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(Compl. § IV ¶ 5, Dkt. No. 13.) The Court declines to allow discovery based on Dollar General’s
improper and conclusory pleading of its legally dubious estoppel defense.
In sum, Dollar General has failed to demonstrate the relevance to this case of documents
and information regarding the EEOC’s own use of background checks and criminal histories in
hiring decisions, and therefore the motion to compel production of such materials is denied.
C.

Information Regarding Background Check Policies the EEOC Deems Lawful

Dollar General’s Requests for Production No. 41 through No. 43 seek documents relating
to what the EEOC considers to be reasonable or acceptable criminal background check policies,
policies or processes the EEOC previously has found to be justified and consistent with business
necessity, and appropriate and less discriminatory alternative selection procedures that the EEOC
believes were available to Dollar General in lieu of the process challenged in this case. Similarly,
Dollar General’s Interrogatory No. 16 asks the EEOC to identify and describe any appropriate
and less discriminatory selection procedures it believes were available to Dollar General.
In its responses to these discovery requests, the EEOC directs Dollar General to its
Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment
Decisions Under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq. (April 25, 2012) (the “Guidance”). Dollar General complains that this response is “neither
specific nor exhaustive,” and that the Guidance is 55 pages long yet the EEOC does not direct
Dollar General to a specific portion that supports its answer. Dollar General also notes that the
Guidance does not list specific examples of background check policies that the EEOC has
previously found to be job-related and consistent with business necessity.
The EEOC argues that the question of what constitutes an acceptable background check
is irrelevant because that issue is specific to each employer, the jobs at that employer, the

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employer’s policy, and the nature of the business necessity justification for the policy. This is a
valid argument up to a point. If the EEOC establishes that Dollar General’s hiring practices
caused a disparate impact, however, Dollar General will have the opportunity to argue that there
was a reasonable business justification for its background check policy. Puffer v. Allstate Ins.
Co., 675 F.3d 709, 717 (7th Cir. 2012). Upon such a showing, the EEOC would then have to
establish that there were less discriminatory alternatives available. Id. To the extent the EEOC
will attempt to counter any asserted business justification with evidence of less discriminatory
alternatives, the EEOC must produce that evidence during discovery in order to avoid the perils
of trial by ambush. Accordingly, the EEOC is directed to respond to Dollar General’s Request
for Production No. 43 and Interrogatory No. 16. The EEOC shall also supplement its response to
Request for Production No. 41 to provide any additional non-confidential, general—i.e., not
employer specific—guidance published by the agency regarding the use of criminal background
check policies or process.3
Information relating to policies or processes previously found to be justified and
consistent with business necessity in other specific cases by the EEOC, experts, courts, or juries
are irrelevant, however, and that information need not be produced. In addition, the EEOC points
out that information it obtains through nonpublic investigations is prohibited from disclosure by
law. Dollar General disclaims any intent to compel EEOC to produce such information. (Def.’s
Reply at 13-14, Dkt. No. 70.) Accordingly, nothing in this Memorandum Opinion in Order shall
be construed as requiring EEOC to disclose information it obtained during confidential
investigations of discrimination at other companies.

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With respect to the Guidance, contrary to Dollar General’s protestations, the EEOC’s general reference
to that material without identifying specific portions is sufficient. The Guidance as a whole addresses the
topics covered by the discovery requests and the Guidance itself is not so long as to make it burdensome
for Dollar General to review it in its entirety.

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D.

Other Requests for More Specific EEOC Responses

Dollar General’s Interrogatory No. 19 asks the EEOC to identify the facts it contends
support its allegation that the “gross disparity in the rates at which Black and non-Black
conditional employees were discharged on account of Defendant’s background check policy is
statistically significant.” The EEOC responded to this interrogatory by referring Dollar General
to the EEOC’s administrative file, which the agency produced in response to Dollar General’s
First Set of Requests for Documents. Dollar General has asked the EEOC to specify the portions
of the administrative file containing the responsive information.
Pursuant to Federal Rule of Civil Procedure 33(d), a party may answer an interrogatory
by referring to its business records and “specifying the records that must be reviewed, in
sufficient detail to enable the interrogating party to locate and identify them as readily as the
responding party could.” Fed. R. Civ. P. 33(d). This rule requires the EEOC to provide a more
specific answer to Dollar General than simply referring generally to the administrative file,
which consists of hundreds of pages and no doubt contains much information unrelated to the
specific allegation addressed by this interrogatory. Accordingly, the Court orders EEOC to
provide a more specific response to Dollar General’s Interrogatory No. 19 that identifies
particular records or at least sections of the administrative file where Dollar General can find the
responsive information.
Dollar General also seeks similar relief with respect to its Interrogatory No. 20. That
interrogatory asks the EEOC to “describe with specificity each step Plaintiff made to investigate
the Charge(s) of Discrimination that formed the basis for this Lawsuit and the EEOC’s
subsequent and corresponding Determination(s), including, but not limited to, the persons
interviewed, documents and memoranda reviewed, and an identification of all person(s) who

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made the Determination.” As with Dollar General’s Interrogatory No. 19, EEOC responded to
this interrogatory by referring Dollar General to the entire the EEOC administrative file. In this
instance, however, the Court finds the EEOC’s response to be more than adequate. Dollar
General has asked a broad question regarding the entirety of the EEOC’s investigation; it should
not be surprised to receive a correspondingly broad response. This Court finds it wholly
appropriate for the EEOC to respond to a request seeking comprehensive information about its
investigative process by directing Dollar General to its administrative file. No further response
will be required to Interrogatory No. 20.
CONCLUSION
For the foregoing reasons, the Court grants the EEOC’s Motion and grants Dollar
General’s Motion in part. The parties shall supplement their discovery responses as set forth in
this Memorandum Opinion and Order by May 26, 2015. In addition, by May 12, 2015, the
EEOC shall deliver copies of the documents bates-numbered E0000644-50, E0000813-816,
E0000817-21, and E0000654 to the magistrate judge for in camera review. As part of her review
of the deliberative process privilege issue, the magistrate judge will also consider the arguments
raised in Dollar General’s motion to strike the declaration submitted by EEOC Chair Jenny R.
Yang in support of the agency’s deliberative process claims.

ENTERED:

Dated: May 5, 2015

__________________________
Andrea R. Wood
United States District Judge

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