Equal Employment Opportunity Commission v. DolGenCorp LLC
Filing
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MEMORANDUM Opinion and Order Signed by the Honorable Andrea R. Wood on 6/19/2015. 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 challenged
Defendant Dolgencorp LLC’s (“Dollar General”) use of criminal background checks in
considering potential employees. According to the EEOC, this practice has a disparate impact on
African-American job applicants and thus violates Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e et seq. As part of the extensive and contentious discovery process in this case,
the Court resolved cross-motions to compel in a Memorandum Opinion and Order dated May 5,
2015 (“May 5 Order”). (Dkt. No. 111.) Dollar General now challenges several aspects of the
May 5 Order in its Motion for Reconsideration of the Court’s Ruling on the Parties’ CrossMotions to Compel (“Motion to Reconsider”). (Dkt. No. 126.) Dollar General has also
simultaneously filed a Motion to Stay Enforcement of the Court’s Ruling Requiring Dollar
General to Produce the Personal Identifying Information of its Conditional Hires (“Motion to
Stay”). (Dkt. No. 128.) The Motion to Stay asks the Court to stay implementation of the May 5
Order to the extent it requires Dollar General to produce electronic information relating to its
conditional hires until the Court resolves the Motion to Reconsider. For the reasons set forth
below, the Court grants the Motion to Stay but denies the Motion to Reconsider.
BACKGROUND
Dollar General’s Motion to Reconsider asks the Court to revisit three aspects of the May
5 Order. First, Dollar General seeks reconsideration of the May 5 Order to the extent it requires
Dollar General to produce electronically-stored information (“ESI”) containing personal
identifying information (“PII”) of Dollar General’s conditional hires, such as their names, social
security numbers, addresses, and telephone numbers. Second, Dollar General asks the Court to
reconsider the portion of the ruling in which it declined to require the EEOC to produce
information relating to the agency’s own use of background checks and criminal history records
when making employment decisions. Finally, Dollar General seeks reconsideration of the denial
of Dollar General’s motion to compel the EEOC to produce information and documents
regarding other employers whose criminal background checks and policies have previously been
found to be reasonable.
DISCUSSION
Motions to reconsider serve a limited function: “to correct manifest errors of law or fact
or to present newly discovered evidence.” Caisse Nationale de Credit Agricole v. CBI Indus.,
Inc., 90 F.3d 1264, 1269 (7th Cir. 1996). Put another way, “[a] district court may reconsider a
prior decision when there has been a significant change in the law or facts since the parties
presented the issue to the court, when the court misunderstands a party’s arguments, or when the
court overreaches by deciding an issue not properly before it.” United States v. Ligas, 549 F.3d
497, 501 (7th Cir. 2008). “A ‘manifest error’ is not demonstrated by the disappointment of the
losing party. It is the wholesale disregard, misapplication, or failure to recognize controlling
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precedent.” Oto v. Metro. Life Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000) (internal quotation
omitted).
I.
Production of PII of Conditional Hires
In ordering the production of the PII, the Court considered the EEOC’s arguments that it
required that information (1) to link separate databases maintained by Dollar General and two of
its vendors, and (2) to analyze whether any statistical effect observed is due to race as opposed to
other demographic factors. In the Motion to Reconsider, Dollar General argues that the Court
erred in “going outside the evidence” by purportedly rejecting the sworn affidavit of Douglas
Owens, an economist and consultant, in which he claims that the relevant databases could be
“easily” linked without the PII. (Mot. to Recons. at 3-4, Dkt. No. 126.) Specifically, in his
affidavit, Owens states that linking the relevant databases could be accomplished using “the last
four digits of candidates’ Social Security Numbers, the city and state of candidates’ residence,
the month and day of candidates’ birth, and a unique identification number for each candidate.”
(Ex. A to Resp. to Mot. to Compel ¶ 5, Dkt. No. 67-1.) Dollar General misreads the May 5
Order, however. Although the Court acknowledged in a footnote that it had “concerns regarding
whether the linking process can be performed in a verifiably accurate manner” (Memo. Op. and
Order at 3 n. 1, Dkt. No. 111), this concern was secondary to the Court’s belief that, as discussed
below, the additional information comprised by the PII was itself relevant.1 (Id. at 3.)
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Furthermore, although Dollar General characterizes the Court’s concerns over Owens’s proffered
methodology as “whether the linking process could be done accurately,” in fact the Court plainly
expressed that its concern was whether this linking could be done in a verifiably accurate manner. Dollar
General’s proposed approach would involve Dollar General unilaterally (1) withholding identifying
information from its production, and (2) assigning purportedly random identification numbers to each job
candidate. The Court remains concerns that allowing Dollar General to use this technique would
needlessly “engender additional discovery disputes and frustrate resolution of this case.” (May 5 Order at
3 n. 1, Dkt. No. 111.)
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Dollar General next argues that the EEOC is not entitled to undertake an analysis of nonracial demographic factors and thus the Court’s reliance on the EEOC’s need to do so was a
manifest error that requires reversal. On this point, Dollar General first argues that the EEOC did
not exhaust its administrative remedies with respect to non-racial demographic factors. This
argument was not raised in Dollar General’s initial briefing and therefore is not properly raised
on a motion to reconsider. CBI Indus., Inc., 90 F.3d at 1270 (it is inappropriate to raise new legal
theories in a motion to reconsider when they could have been heard during the pendency of the
previous motion).
Furthermore, Dollar General once again misreads the May 5 Order: when the Court noted
that the full PII would allow the EEOC to determine “whether non-racial demographic factors
may have caused a statistical impact” (May 5 Order at 3, Dkt. No. 111), the Court was not giving
the EEOC leave to make new or different discrimination claims. Rather, the Court was simply
indicating that the additional PII data fields could be used as controls in conducting an analysis
of the disparate impact on African Americans of Dollar General’s criminal background check
policy. Dollar General’s unsupported assertion that “neither a name, a complete social security
number, an address, nor a phone number can have a possible effect on the statistical analysis the
EEOC is required to perform” (Mot. to Recons. at 6, Dkt. No. 126) was previously raised,
considered, and rejected by the Court, and Dollar General fails to cite any controlling law that
would dictate to the contrary. Thus, Dollar General fails to establish that the Court’s conclusion
regarding the relevance of the PII was “manifest error.” CBI Indus., Inc., 90 F.3d at 1270
(“Reconsideration is not an appropriate forum for rehashing previously rejected arguments.”).
Dollar General also contends that the Court “misunderstood” its argument that producing
the PII would infringe upon the privacy of the conditional hires. Again, Dollar General engages
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in a selective reading of the May 5 Order by focusing only upon the Court’s statement 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.” (May 5 Order at 3, Dkt.
No. 111.) It ignores the fact that the Court also considered the argument that Dollar General has
a privacy interest even in producing the personal information of its employees to the EEOC. (Id.)
In the May 5 Order, the Court noted that the case law identified by Dollar General acknowledges
that this privacy interest may be overridden when the information at issue is sufficiently relevant
to the litigation. (Id.) The only additional case law cited by Dollar General in its Motion to
Reconsider acknowledges this very same principle. See Onwuka v. Fed. Express Corp., 178
F.R.D. 508, 517 (D. Minn. 1997) (discovery of personnel information in an employment
discrimination case is allowed where value of the information sought would outweigh the
privacy interests). The Court did not misunderstand Dollar General’s arguments; rather, it found
that the relevancy of the PII was sufficient to overcome the applicable privacy interest.
Accordingly, the Motion to Reconsider is denied to the extent it asks the Court to revisit
its decision requiring Dollar General to produce the requested PII.
II.
The EEOC’s Use of Background Checks and Criminal History Records
Dollar General also seeks reconsideration of the May 5 Order to the extent it held that the
EEOC need not produce information regarding its own use of background checks and criminal
history records when making employment decisions. According to Dollar General, this
conclusion was a manifest error of law.
As an initial matter, Dollar General mischaracterizes the Court’s decision as analyzing
the admissibility, rather than the relevance, of the EEOC’s use of background checks. (See Reply
in Supp. of Mot. to Recons. at 9, Dkt. No. 137). The May 5 Order did not turn on the
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admissibility of the EEOC’s hiring practices; rather, it explicitly addressed the relevance (or lack
thereof) of this information. Furthermore, Dollar General fails to establish that the Court’s
assessment of the relevance of the EEOC’s hiring practice was a manifest error of law. The
Court found that because the business necessity defense applies only where “the challenged
practice is job related for the position in question,” any practices utilized by the EEOC are
irrelevant to Dollar General’s business necessity defense. (May 5 Order at 9, Dkt. No. 111 (citing
42 U.S.C. § 2000e-2(k)(1)(A)(i))). In its Motion to Reconsider, Dollar General argues that the
EEOC has employees in similar positions with similar responsibilities as it does, and that it was a
manifest error of law for the Court to conclude that there was no overlap between the EEOC’s
and Dollar General’s “position[s] in question.” The Court considered and rejected this argument,
and the only support Dollar General offers for its assertion that the Court’s ruling was manifestly
erroneous is non-controlling case law that was rejected as unpersuasive in the May 5 Order.
Dollar General also argues that the Court misconstrued Johnson v. Mayor & City Council
of Baltimore, 472 U.S. 353 (1985). First, although Dollar General refers to the Court’s
interpretation of Johnson as “flawed” and claims that the Court “violates the spirit” of Johnson,
Dollar General stops short of arguing that the Court made a manifest error of law in its
interpretation of the case that would justify reconsideration of the May 5 Order. And although
Dollar General is correct that the Supreme Court’s opinion in Johnson considered an appeal from
a summary judgment ruling (rather than a discovery matter), the case can be read more broadly
to indicate that federal courts need not give weight to federal employment requirements in
addressing employment discrimination cases. See 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.”).
Accordingly, the Court declines to reconsider its ruling denying Dollar General’s request
to compel production of information relating to the EEOC’s own employment practices.
III.
Other Employers’ Use of Background Checks and Criminal History Records
Dollar General also asks the Court to reconsider its conclusion that the EEOC need not
produce information related to other employers in specific cases because that information is
irrelevant and, to the extent such information relates to non-public investigations, the EEOC is
prohibited from disclosing it by law. As with its contention that the Court erred in denying its
motion to compel the production of the EEOC’s hiring information, Dollar General again argues
that other employers’ practices are relevant to its own business necessity defense. According to
Dollar General, “[t]here may be overlap in positions covered, and the same reasons and rationale
supporting why those policies are procedures were found to be justified and consistent with
business necessity may be applicable here.” (Mot. to Recons. at 14, Dkt. No. 137.) Again, the
Court already considered and rejected this argument, and Dollar General cites no controlling
authority that contradicts the Court’s conclusion. Thus, it was not manifest error for the Court to
have rejected this argument. Oto, 224 F.3d at 606. Accordingly, the Court declines to reconsider
the May 5 Order to the extent it denied Dollar General’s motion compel the EEOC to produce
information relating to other employers’ employment practices.2
CONCLUSION
For the foregoing reasons, the Court denies Dollar General’s Motion to Reconsider. (Dkt.
No. 126.) Dollar General’s Motion to Stay (Dkt. No. 128) is granted. Dollar General shall
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Dollar General also asks the Court to compel the EEOC to collect and produce publicly-available
information in the EEOC’s possession that relates to other employers’ hiring practices. Because the Court
finds that this information is not relevant to the instant case, this request is denied.
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produce the requested personal data regarding its conditional hires within 21 days of the entry of
this Order.
ENTERED:
Dated: June 19, 2015
__________________________
Andrea R. Wood
United States District Judge
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