Equal Employment Opportunity Commission v. AMAZON.COM SERVICES LLC

Filing 31

ORDER AND OPINION re: 29 LETTER MOTION for Leave to File Sur-Reply addressed to Judge Lorna G. Schofield from Jason C. Schwartz dated May 10, 2024. filed by AMAZON.COM SERVICES LLC. For the foregoing reasons, the Petition to enfor ce the Subpoena is GRANTED. Respondent shall produce all documents and information responsive to Subpoena No. NY-A24-007 issued by New York District Office Acting Director Timothy Riera by August 9, 2024. If Petitioner seeks reasonable costs expend ed in this action, Petitioner shall submit a supplemental affidavit regarding costs by July 24, 2024. Respondent may file a response by July 31, 2024. No reply shall be filed unless requested by the Court. Respondent's motions for leave to file a sur-reply at Dkt. 29 and for oral argument at Dkt. 26 are DENIED as moot. The Clerk of Court is respectfully directed to close the motion at Dkt. 29. (Signed by Judge Lorna G. Schofield on 7/11/2024) (tg)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
EQUAL EMPLOYMENT OPPORTUNITY
:
COMMISSION,
:
Petitioner, :
:
-against:
:
AMAZON.COM SERVICES LLC,
Respondent. :
:
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LORNA G. SCHOFIELD, District Judge:

24 Misc. 125 (LGS)
ORDER & OPINION

Petitioner the United States Equal Employment Opportunity Commission (“EEOC”)
commenced this action with a petition (the “Petition”) to require Respondent Amazon.com
Services LLC to comply with the administrative subpoena (the “Subpoena”) issued by Petitioner
on December 13, 2023. For the reasons below, the Petition is granted.
BACKGROUND
Respondent is headquartered in Seattle, Washington, and operates fulfillment centers
across the country. During 2020 and 2021, Charging Parties Cristina Rios, Daisy Leon, Natalia
Little, Tanaisha Harris-Harper and Aniyah Johnson each filed charges of discrimination with
Petitioner against Respondent, alleging sex and/or disability discrimination based on their
pregnancies during their employment at Respondent’s fulfillment centers. Specifically, the
charges allege that Respondent discriminated against the Charging Parties by failing to
accommodate their pregnancies or engage in a meaningful interactive process and by forcing
them to take unpaid leaves of absence in violation of the Americans with Disabilities Act
(“ADA”), and Title VII of the Civil Rights Act (“Title VII”). Respondent submitted statements
of position in response, denying any discrimination.

Following receipt of these charges, the EEOC began a systemic investigation into
whether Respondent discriminates against pregnant employees at its fulfillment centers in
violation of the ADA and Title VII. On April 25, 2023, the EEOC requested data from
Respondent regarding employees who sought light duty or a job modification as an
accommodation for injury, disability and pregnancy from January 1, 2020, onwards in New
Jersey, Connecticut, North Carolina and California -- the states in which the Charging Parties
were employed.
Respondent objected to the request. The parties engaged in negotiations over several
months, during which the EEOC repeatedly narrowed the scope of its request, including the
targeted timeframe, facility, accommodation requested and job title. Respondent still refused to
comply. In November 2023, Respondent proposed that it produce files from its underlying
database, consisting of hundreds of thousands of pages, rather than produce the requested
information. Among other issues, Respondent disputed the request to state whether an
accommodation request was granted or denied, arguing that “there is too much subjectivity
required.” The EEOC responded, clarifying the scope of the request. Respondent still refused to
produce the requested information.
On December 13, 2023, the EEOC issued the Subpoena reflecting its request for
information, as narrowed through negotiations with Respondent. On December 21, 2023,
Respondent served on the EEOC a petition to revoke or modify the Subpoena, arguing inter alia
that the Subpoena required Respondent to summarize the case files “in a manner that is
subjective, incomplete, and/or non-meaningful and does not correlate to how the information is
kept in the ordinary course of business” by marking each responsive accommodation request as
granted, granted in part or denied. Respondent stated that it “also has agreed to provide the

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underlying case files from which all of the information that the EEOC seeks may be derived.”
Respondent then produced a “fourth and final production,” consisting of nearly 70,000 separate
files from the underlying database totaling 205,247 pages of documents. The EEOC denied
Respondent’s petition to revoke the Subpoena and set a compliance date of February 22, 2024.
Respondent then re-produced a text-searchable version of the more than 200,000 pages of
documents it produced in its “fourth and final production” but refused to produce the requested
information.
On March 15, 2024, the EEOC filed this Petition to enforce the Subpoena. The Petition
seeks an order (1) compelling Respondent to produce, on a date to be fixed by this Court, all
documents and information responsive to Subpoena No. NY-A24-007; (2) granting Petitioner its
costs expended in this action and (3) ordering any other such relief as may be necessary and
appropriate.
STANDARD
Under Title VII, the EEOC is required to investigate charges of discrimination to
determine whether there is reasonable cause to believe that an employer is engaged in an
unlawful employment practice, see 42 U.S.C. § 2000e–5(b), and may issue subpoenas in
connection with its investigation, id. § 2000e–9. In order “to enable the EEOC to make informed
decisions at each stage of the enforcement process, Title VII confers a broad right of access to
relevant evidence.” McLane Co. v. EEOC, 581 U.S. 72, 76 (2017). 1 The EEOC is entitled to
“any evidence of any person being investigated . . . that relates to unlawful employment practices
covered by [Title VII] and is relevant to the charge under investigation.” 42 U.S.C. § 2000e–

1

Unless otherwise indicated, in quoting cases, all internal quotation marks, footnotes and
citations are omitted, and all alterations are adopted.
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8(a). The Pregnancy Discrimination Act is included within Title VII, and discrimination based
on sex includes discrimination “because of or on the basis of pregnancy, childbirth, or related
medical conditions.” Id. § 2000e(k). Employers are required to treat “women affected by
pregnancy . . . the same for all employment-related purposes . . . as other persons not so affected
but similar in their ability or inability to work . . . .” Id.
“Congress has directed the EEOC to exercise the same enforcement powers, remedies,
and procedures that are set forth in Title VII . . . when it is enforcing the ADA’s prohibitions
against employment discrimination on the basis of disability.” EEOC v. Waffle House, Inc., 534
U.S. 279, 285 (2002); see 42 U.S.C. § 12117(a) (incorporating sections 2000e–4, 2000e–5,
2000e–6, 2000e–8 and 2000e–9 of Title VII). “Accordingly, the provisions of Title VII defining
the EEOC’s authority provide the starting point for [an ADA] analysis.” Waffle House, Inc., 534
U.S. at 285-86.
The district court’s “role in a proceeding to enforce an administrative subpoena is
extremely limited.” EEOC v. United Parcel Serv., Inc., 587 F.3d 136, 139 (2d Cir. 2009);
accord Walsh v. Upright, No. 22 Misc. 247, 2023 WL 2207604, at *3 (S.D.N.Y. Feb. 23, 2023).
“A district court is not to use an enforcement proceeding as an opportunity to test the strength of
the underlying complaint. Rather, a district court should satisfy itself that the charge is valid and
that the material requested is relevant to the charge.” McLane Co., 581 U.S. at 76. “To obtain
enforcement of an administrative subpoena, an agency must show only [1] that the investigation
will be conducted pursuant to a legitimate purpose, [2] that the inquiry may be relevant to the
purpose, [3] that the information sought is not already within the agency’s possession, and [4]
that the administrative steps required have been followed.” United Parcel Serv., Inc., 587 F.3d
at 139; accord Walsh, 2023 WL 2207604, at *3. “A subpoena that satisfies these criteria will be

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enforced unless the party opposing enforcement demonstrates that the subpoena is unreasonable
or that compliance would be unnecessarily burdensome.” United Parcel Serv., Inc., 587 F.3d at
139; see McLane Co., 581 U.S. at 77.
DISCUSSION
The parties do not dispute that the investigation will be conducted pursuant to a
legitimate purpose, that the charges are valid or that the required administrative steps have been
followed. Petitioner has shown that the information is relevant and not already in the EEOC’s
possession. Respondent’s arguments to prevent enforcement are unavailing. As further
explained below, the Petition to enforce the Subpoena is granted.
A.

Relevance of Information

The information sought by Petitioner is relevant. Showing relevancy in this context is a
low bar, and courts have given the term “relevant” a “generous construction,” allowing access to
“virtually any material that might cast light on the allegations against the employer.” McLane
Co., 581 U.S. at 76-77. In considering whether the information is relevant, courts are not to “test
the strength of the underlying complaint.” Id. at 76.
The Subpoena targets information squarely at the center of the EEOC’s investigation,
whether that investigation is systemic or limited to the five individual charges. The Subpoena
seeks inter alia the date of the accommodation request; the nature of the requested
accommodation (i.e., lifting restriction and/or additional breaks); whether the request for a lifting
restriction and/or additional breaks was granted, granted in part or denied; and the date of the
decision to grant, grant in part or deny the accommodation. The Subpoena is limited to the five
facilities at which the Charging Parties worked and to employees occupying the same positions
as the Charging Parties. How Respondent resolves requests for similar or identical

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accommodation requests from non-pregnant employees holding the same positions and working
in the same facilities as the Charging Parties is directly relevant to the question of whether
accommodation requests due to pregnancy are treated differently by Respondent, and therefore
whether the allegation of discrimination based on pregnancy -- either limited to the Charging
Parties or on a systemic level -- is substantiated.
Respondent’s argument that the charges do not specifically state that the Charging Parties
were treated less favorably than non-pregnant employees with similar medical restrictions
requires too much specificity from the charges; each charge properly states that Respondent
discriminated against the Charging Parties for their pregnancies, and the EEOC now seeks data
that is relevant to proving or disproving that alleged discrimination.
Respondent also argues that the five individual charges do not support a systemic
investigation and therefore Petitioner cannot access the information requested. Respondent is
incorrect. The EEOC received at least five charges alleging discrimination based on pregnancy
across several of Respondent’s facilities. The EEOC justifiably can seek data related to whether
Respondent has a pattern or practice of discriminating against its pregnant employee at the
identified facilities. See, e.g., EEOC v. Centura Health, 933 F.3d 1203, 1205-07 (10th Cir.
2019) (enforcing subpoena for pattern and practice information from identified facilities where
EEOC received multiple charges across multiple facilities). Respondent’s cited cases in which a
charge failed to justify nationwide data are inapposite because the EEOC does not seek
nationwide data here. Regardless of whether a systemic investigation is proper, as described
above, the information requested is sufficiently relevant to an investigation of the charges
themselves because the request is limited to the facilities, positions and similar types of

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accommodation requests as the Charging Parties’ and therefore relevant to whether Respondent
treated the Charging Parties differently than their similarly situated, non-pregnant peers.
Respondent also argues that the information sought by the disputed requests is legally
irrelevant. Respondent is incorrect. Each charge alleges violations of Title VII’s prohibition
against pregnancy discrimination. As amended by the Pregnancy Discrimination Act, Title VII
“requires courts to consider the extent to which an employer’s policy treats pregnant workers less
favorably than it treats nonpregnant workers similar in their ability or inability to work.” Young
v. United Parcel Serv., Inc., 575 U.S. 206, 210 (2015). For pregnancy discrimination claims, “a
jury may infer a discriminatory intent where the employer accommodates a large percentage of
nonpregnant workers while failing to accommodate a large percentage . . . of pregnant workers.”
Legg v. Ulster Cnty., 820 F.3d 67, 77 (2d Cir. 2016) (emphasis omitted). Petitioner seeks
information to compare how Respondent treated pregnant workers’ and non-pregnant workers’
requests for similar accommodations. Respondent cannot narrow the EEOC’s statutory rights
only to documents showing the final determination in an iterative accommodations process; the
context of interactions between the requesting employee and the employer are relevant,
particularly where the charges allege failure to engage meaningfully in the interactive process.
Finally, to the extent Respondent challenges the merits of the allegations of
discrimination, this enforcement action is not the proper forum to do so. “A district court is not
to use an enforcement proceeding as an opportunity to test the strength of the underlying
complaint.” McLane Co., 581 U.S. at 76.
B.

Possession

The information at issue is not already within the EEOC’s possession. As noted above,
the Subpoena seeks inter alia the date of the accommodation request; the nature of the requested

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accommodation (i.e., lifting restriction and/or additional breaks); whether the request for a lifting
restriction and/or additional breaks was granted, granted in part or denied; and the date of the
decision to grant, grant in part or deny the accommodation. Respondent, on its own accord,
turned over more than 200,000 pages of documents that it extracted from its database and then
converted into PDF format. This unilateral production does not satisfy the Subpoena. First, the
Subpoena states that “[i]mage files and printed copies of the database do not satisfy this
[S]ubpoena” and specifically requires files to be produced in a sortable form, such as in
spreadsheets. Second, even if a production in PDF format could satisfy the Subpoena,
Respondent’s production still fails to provide information requested -- namely, whether the
request was granted, granted in part or denied and the date of such decision. Despite
Respondent’s argument to the contrary, any attempt by the EEOC to render a best guess
regarding the outcome of each accommodation request does not alleviate Respondent’s
responsibility to provide the requested information. Respondent -- not the EEOC -- is best
positioned to navigate its database and produce the information. Finally, Respondent cannot rely
on Federal Rule of Civil Procedure 81 to supersede the EEOC’s statutory right to “any evidence”
in connection with its investigation, see 42 U.S.C. § 2000e–8(a) (Title VII added); 42 U.S.C.
§ 12117(a) (ADA). Rule 81 expressly states that the federal rules apply in litigation over
subpoena enforcement “except as otherwise provided by statute.” Fed. R. Civ. P. 81(a)(5).
C.

Unnecessary Burden

The Subpoena does not impose an unnecessary burden on Respondent. A subpoena for
relevant information “will be enforced unless the party opposing enforcement demonstrates
that . . . compliance would be unnecessarily burdensome.” United Parcel Serv., Inc., 587 F.3d at
139; accord Walsh, 2023 WL 2207604, at *3. “[T]he decision whether a subpoena is overly

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burdensome turns on the nature of the materials sought and the difficulty the employer will face
in producing them.” McLane Co., 581 U.S. at 81. This is a “fact-intensive” inquiry. Id.
Respondent has not shown that “compliance threatens to unduly disrupt or seriously hinder
normal operations of [its] business.” NLRB. v. Am. Med. Response, Inc., 438 F.3d 188, 193 n.4
(2d Cir. 2006) (noting that the respondent abandoned its argument as to burden after conceding
the subpoenas at issue would not disrupt its operations). It appears from documents produced
regarding the Charging Parties’ accommodation requests that Respondent tracks the disputed
information. These produced documents reference the status of the accommodation request
and/or whether the manager was able to accommodate the request. Respondent has not shown
that compiling this responsive information would disrupt operations. The request seeks
information for approximately one thousand case files; Respondent has over one million
employees in the United States. See 2023 Employer Information Report (EEO-1 Component 1),
Amazon.com, Inc., at 2,
https://assets.aboutamazon.com/64/79/d3746ef14fd99cc6be94532c9db5/2023-eeo1-amazonreport.pdf [https://perma.cc/J752-EUMH] (identifying total U.S. workforce as 1,049,676).
Respondent’s argument that the Subpoena will require Respondent to disclose work
product also is unavailing. First, the filing on which Respondent relies for its argument was
struck from the docket and therefore is irrelevant for purposes of this action. Second, the
information sought is not protected from production. “[T]he purpose of the work product
privilege is to preserve a zone of privacy in which a lawyer can prepare and develop legal
theories and strategy with an eye toward litigation, free from unnecessary intrusion by his
adversaries.” New York Times Co. v. U.S. Dep’t of Just., 939 F.3d 479, 489 (2d Cir. 2019). The
Subpoena does not request information protected by the work-product doctrine, but rather

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requests factual information regarding the outcome of accommodation requests. That the
information must be compiled following an enforcement action does not render it work product.
CONCLUSION
For the foregoing reasons, the Petition to enforce the Subpoena is GRANTED.
Respondent shall produce all documents and information responsive to Subpoena No. NY-A24007 issued by New York District Office Acting Director Timothy Riera by August 9, 2024.
If Petitioner seeks reasonable costs expended in this action, Petitioner shall submit a
supplemental affidavit regarding costs by July 24, 2024. Respondent may file a response by
July 31, 2024. No reply shall be filed unless requested by the Court.
Respondent’s motions for leave to file a sur-reply at Dkt. 29 and for oral argument at Dkt.
26 are DENIED as moot.
The Clerk of Court is respectfully directed to close the motion at Dkt. 29.
Dated: July 11, 2024
New York, New York

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