Equal Employment Opportunity Commission v. Nestle Prepared Foods
Filing
19
MEMORANDUM OPINION & ORDER: (1) ACCEPTING IN PART & REJECTING IN PART Mag Judge Wier's 17 Report and Recommendations; (2) that the EEOC's 1 Motion for enforcement of subpoena is DENIED; (3) this order is final & appealable. Signed by Judge Joseph M. Hood on 5/23/12.(KJR)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION,
)
)
)
) No. 5:11-mc-358-JMH-REW
)
)
)
) MEMORANDUM OPINION AND ORDER
)
)
)
Petitioner,
v.
NESTLE PREPARED FOODS,
Respondent.
**
This
matter
**
is
**
before
**
the
**
Court
upon
Disposition of Magistrate Judge Robert E. Wier.
the
Recommended
[DE 17].
Said
action was referred to the Magistrate Judge for the purpose of
evaluating the Equal Employment Opportunity Commission’s (“EEOC”
or “Commission”) motion to enforce an administrative subpoena.
[DE 1].
Having considered the parties’ briefs, an amici curiae
brief filed in support of Nestle, and the parties’ arguments
during a show cause hearing, Magistrate Judge Wier recommends
that
the
EEOC’s
granted.
Disposition.
motion
for
has
filed
Nestle
[DE 18].
enforcement
of
objections
to
the
the
subpoena
be
Recommended
The Court has carefully considered this
matter and concludes that it will accept and adopt in part the
Magistrate
Judge’s
recommendation.
largely
well-reasoned
and
articulated
Ultimately, however, the Court finds that the
information sought by the EEOC is not relevant to the specific
charge at issue, and thus, the administrative subpoena will not
be enforced.
I.
BACKGROUND
The undisputed facts relevant to the Court’s resolution of
this matter are as follows:
On June 8, 2010, Nestle sent its
employee,
a
Michael
Peel,
to
private
physician,
McLaughlin, for a fitness-for-duty evaluation.
Dr.
Paul
As part of the
evaluation, Dr. McLaughlin had Peel fill out a family-medicalhistory
questionnaire
concerning
his
family
in
which
history
Peel
of
provided
certain
medical
information
conditions.
Peel’s employment with Nestle was terminated later that month,
purportedly
shifts.
because
Peel
took
excessive
breaks
during
work
Peel filed a charge of discrimination with the EEOC on
June 29, 2010, alleging that Nestle had discriminated against
him
based
on
information.”
“retaliation,”
“disability,”
and
“genetic
In the narrative portion of Peel’s EEOC charge,
he did not discuss the particulars regarding his allegation of
“genetic information” discrimination, but it has become clear
that that portion of the charge relates to Dr. McLaughlin’s
acquisition of Peel’s family medical history.
Based
on
Peel’s
allegation
of
“genetic
information”
discrimination, the EEOC issued Subpoena No. IN-11-51S, which
directs Nestle to produce:
2
1.
Documents that show the full name, address,
and telephone number of each physician to whom Nestle
referred
individuals
for
physical
or
medical
examinations (i.e., fitness for duty exams, post-offer
exams) for positions at the facility from January 1,
2010 to the present.
2.
Documents that show the full name, date of
application, if hired, date of hire, if not hired,
reason(s) why, and if terminated, reason(s) for
termination for each individual who submitted to a
physical or medical examination at Nestle’s request
for positions at the facility from January 1, 2010 to
the present, as well as the date of each exam and the
name of the physician who conducted the exam. 1
Nestle refused to produce the requested information
and filed a petition to revoke the subpoena.
refused
the
Commission’s
request
that
it
After Nestle
withdraw
its
petition to revoke, the Commission denied the petition and
ordered Nestle to comply with the subpoena.
When Nestle
did not comply, the Commission filed the application for
enforcement that is currently before the Court.
II.
STANDARD OF REVIEW
Federal
with
respect
Rule
to
of
Civil
dispositive
Procedure
motions,
72(b)(3)
that
the
provides,
district
judge must determine de novo any part of the magistrate
judge’s disposition to which proper objections have been
made.
Because the EEOC’s motion to enforce the subpoena
sets forth all of the relief requested in this matter, the
1
The EEOC originally requested information that included copies of all
medical questionnaires completed by individuals who submitted to medical
exams.
See DE 8-5.
Nestle objected and the EEOC ultimately narrowed the
scope of its request, issuing Subpoena IN-11-51S on June 30, 2011.
3
Court views it as a dispositive motion and will, therefore,
review de novo the portions of the recommended disposition
to which Nestle has objected.
See Aluminum Co. of America,
Badin Works, Badin, N.C. v. U.S. Envtl. Prot. Agency, 663
F.2d 499, 501 (4th Cir. 1981); see also EEOC v. Schwan’s
Home Serv., 707 F. Supp. 2d 980, 987 (D. Minn. 2010)(“[A]n
application
to
enforce
an
administrative
subpoena
duces
tecum, where there is no pending underlying action before
the
Court,
therefore,
is
when
application,
generally
a
the
a
dispositive
Magistrate
district
Judge
court
matter,
considers
reviews
the
such
and
an
Magistrate
Judge’s determinations de novo.”)
III. DISCUSSION
Nestle raises several objections to Magistrate Judge
Wier’s
contends
recommended
that
the
disposition.
Magistrate
Specifically,
Judge
erred
in
Nestle
failing
to
consider the merits of the EEOC’s agency argument and in
finding that Nestle had notice of its obligations under the
Genetic
Information
U.S.C. § 2000ff-1.
Wier’s
findings
relevance.
Non-Discrimination
Act
(“GINA”),
42
Additionally, Nestle objects to Judge
with
respect
to
judicial
estoppel
and
Upon reviewing these issues anew, the Court
finds the Magistrate Judge’s opinion to be well-reasoned
and
adopts
the
opinion
as
its
4
own,
save
the
portion
addressing the relevance of the information sought under
the administrative subpoena.
It is well established that the EEOC has broad access
to
evidence
that
investigated.
is
relevant
the
a
charge
being
See EEOC v. Roadway Exp., Inc., 261 F.3d
634, 637 (6th Cir. 2001).
stage,
to
relevance
Further, at the investigation
standard
is
to
be
construed
expansively, “afford[ing] the EEOC access to virtually any
material that might cast light on the allegations against
the
employer.”
EEOC
v.
Shell
Oil,
466
U.S.
54,
68-69
(1984); see also EEOC v. Cambridge Tile Mfg. Co., 590 F.2d
205, 206 (6th Cir. 1979).
Supreme
Court
relevance
with
has
And while the United States
approved
respect
to
a
far-reaching
EEOC
notion
investigations,
it
of
has
cautioned that limits must be imposed lest the requirement
of relevance become a nullity.
Shell Oil, 466 U.S. at 69.
Although the relevancy limitation does not prevent the EEOC
from investigating subject matter beyond the four corners
of a
specific charge, see EEOC v. Roadway Exp., Inc., 750
F.2d at 43, the Court is not persuaded that it has free
reign to conduct a broad, company-wide investigation based
upon
a
single
discrimination.
Judge
approved
allegation
of
an
isolated
act
of
While the cases cited by the Magistrate
investigations
that
5
reached
beyond
the
charges
involved,
each
case
involved
articulable
circumstances that suggested the existence of violations
beyond
those
specified
in
the
charges.
See
EEOC
v.
Cambridge Tile Mfg. Co., 590 F.2d at 206 (EEOC entitled to
investigate
employer’s
pattern
of
action
where
two
employees had filed charges of discrimination and there was
a
“strong
uncovered
possibility
during
a
of
sex
discrimination,
reasonable
investigation
which
of
was
specific
charges”); EEOC v. Roadway Exp., Inc., 750 F.2d 40 (6th
Cir. 1984)(investigation arose out of two separate charges
of race discrimination); Blue Bell Boots, Inc. v. EEOC, 418
F.2d 355 (investigation involved seven separate charges of
race discrimination, each relating a detailed and identical
account
of
alleged
discrimination);
EEOC
v.
Ford
Motor
Credit Co., 26 F.3d 44 (6th Cir. 1994)(investigation of
systemic
sex
preliminary
discrimination
on-site
permitted
investigation,
the
where,
EEOC
upon
found
a
“scarcity of women” occupying high-ranking positions).
During the show cause hearing before Magistrate Judge
Wier, counsel for the EEOC was questioned regarding the
relevance of the information sought.
how
looking
genetic
for
other
information
instances
would
be
[DE 10].
of
relevant
counsel responded:
6
the
to
When asked
acquisition
Peel’s
of
charge,
Mr. Peel’s charge, we feel that there is a
violation of the statute in regards to him. And then
flowing from there, looking for other class members .
. . . [I]f that is their practice, referring employees
to physicians for these types of exams without giving
any sort of guidance or notice to the physicians that
they are not supposed to collect this type of
information, it certainly is possible that if it was
done towards one employee from one physician that it
could be done towards other employees as well; so yes,
that is why I want to explore that.
[DE 10, p. 7].
When asked by Magistrate Judge Wier what
would suggest that systemic discrimination has occurred at
Nestle, counsel replied, “At this point we don’t know.
We
won’t know that until we have the information, and then we
can
determine
whether
or
not
that’s
the
case.
interviews have been conducted at this point.”
No
[DE 10, p.
8].
While the Court recognizes that it is important for
the
EEOC
to
have
the
ability
to
investigate
possible
patterns of discriminatory action, this does not mean that
every charge of discrimination justifies an investigation
of the employer’s facility-wide employment practices.
See
EEOC v. Burlington N. Santa Fe R.R., 669 F.3d 1154, 1157-58
(10th Cir. 2012).
To conclude otherwise would eviscerate
the relevance requirement and condone fishing expeditions,
against which the Sixth Circuit has warned.
See EEOC v. K-
Mart Corp., 694 F.2d 1055, 1066 (6th Cir. 1982).
Here, the
only alleged GINA violation arose from Peel’s EEOC charge
7
in which he checked the box for “genetic information.”
The
Court is aware of no other charges against Nestle alleging
GINA
violations,
information
it
and
has
the
EEOC
acquired
in
points
to
no
the
course
other
of
its
investigation of Peel’s charge that would suggest that any
other
violations
have
occurred.
Accordingly,
the
Court
finds that the information sought under Subpoena IN-11-51S
is irrelevant to the charge being investigated, and the
motion to enforce the subpoena is denied.
Having
considered
the
matter
de
novo
in
light
of
Nestle’s objections, IT IS ORDERED:
1)
that
Magistrate
Judge
Wier’s
Recommended
Disposition [DE 17] is ACCEPTED IN PART and REJECTED IN
PART;
2)
that
the
EEOC’s
motion
for
enforcement
of
Subpoena No. IN-11-51S [DE 1] is DENIED; and
3)
that this Order is FINAL AND APPEALABLE and there
is no just cause for delay.
This the 23rd day of May, 2012.
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