Equal Employment Opportunity Commission v. Frontier Hot-Dip Galvanizing, Inc.

Filing 79

ORDER granting 65 Motion for Discovery. Signed by Hon. H. Kenneth Schroeder Jr. on 2/28/2022. (KER)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,
Plaintiff,
v.

16-CV-0691V(Sr)

FRONTIER HOT-DIP GALVANIZING, INC.,
Defendant.

DECISION AND ORDER
This matter was referred to the undersigned by the Hon. Lawrence J.
Vilardo, in accordance with 28 U.S.C. § 636(b), for all pretrial matters and to hear and
report upon dispositive motions. Dkt. #15.

The Equal Employment Opportunity Commission (“EEOC”), commenced
this action pursuant to Section 706(f)(1) and (3) of Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e-5(f)(1) & (3), and Section 102 of the Civil Rights Act of 1991,
42 U.S.C. § 1981a, against Frontier Hot-Dip Galvanizing, Inc. (“Frontier”), on behalf of
two black employees (one of whom is Haitian), and other similarly aggrieved black
employees who were subjected to racial and national origin discrimination and a hostile
work environment and terminated from their employment after complaining about their
work conditions to Frontier and the EEOC. Dkt. #1.

Currently before the Court is the EEOC’s motion to compel discovery. Dkt.
#65. Defendant generally objects to the scope of EEOC’s discovery demands, arguing

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that the scope of discovery should be limited to employees who were identified as
aggrieved during the EEOC’s investigation and who allege discrimination between May
25, 2013 (300 days prior to the filing of the charge of discrimination prompting the
EEOC’s investigation), through October 22, 2015 (the date that the EEOC issued its
letter of determination and demand for conciliation). Dkt. #68. The EEOC seeks
discovery from 2011 through the present, noting that the racially discriminatory conduct
is alleged to be ongoing and that the individuals alleged to have engaged in racially
discriminatory conduct remain employed by defendant. Dkt. #69.

Fed. R. Civ. P. 26(b)(1) provides, in relevant part:
Parties may obtain discovery regarding any nonprivileged
matter that is relevant to any party’s claim or defense and
proportional to the needs of the case, considering the
importance of the issues at stake in the action, the amount
in controversy, the parties’ relative access to relevant
information, the parties’ resources, the importance of the
discovery in resolving the issues, and whether the burden or
expense of the proposed discovery outweighs its likely
benefit. Information within the scope of discovery need not
be admissible in evidence to be discoverable.
Motions to compel are “entrusted to the sound discretion of the district court.” In re
Fitch, Inc., 330 F.3d 104, 108 (2d Cir. 2003), quoting United States v. Sanders, 211
F.3d 711, 720 (2d Cir.), cert. denied, 531 U.S. 1015 (2000).

Discovery of Employees
Before filing an action under Title VII, the EEOC must comply with the
following administrative obligations prescribed by statute: (1) it must receive a formal

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charge of discrimination against an employer; (2) provide notice of the charge to the
employer; (3) investigate the charge; (4) make and give notice of its determination that
there was reasonable cause to believe that a violation of Title VII occurred; and (5)
make a good faith effort to conciliate the charge. EEOC v. Sterling Jewelers Inc., 801
F.3d 96, 100 (2d Cir. 2015) (citing 42 U.S.C. § 2000e-5(b)), cert. denied, 137 S.Ct. 47
(2016). While the EEOC is required by statute to conduct an investigation, a lawsuit
commenced by the EEOC following such an investigation is not limited to employees
identified during the investigation. EEOC v. United Health Programs of Am., Inc., 213 F.
Supp.3d 377, 403-405 (E.D.N.Y. 2016); See EEOC v. Bass Pro Outdoor World, LLC,
826 F.3d 791 (5 th Cir. 2016) (rejecting employer’s argument that the EEOC failed to
comply with its administrative obligations because it did not name specific victims
during the investigation and conciliation process); Arizona ex rel. Horne v. Geo Group,
Inc., 816 F.3d 1189 (9 th Cir. 2016) (rejecting employer’s argument that the EEOC must
identify and conciliate on behalf of each individual aggrieved employee before filing a
lawsuit seeking recovery on behalf of a class), cert. denied, 137 S.Ct. 623 (2017).

The EEOC is permitted to identify new claimants, including individuals
who were discriminated against after the EEOC's investigation ended, so long as their
claims are within the scope of the claims that were investigated, disclosed and
conciliated. EEOC v. Staffing Solutions of WNY, Inc., 18-CV-562, 2020 WL 7407736, at
*3 (W.D.N.Y. Oct. 16, 2020); EEOC v. United Parcel Service, 2017 WL 9482105, *9
(E.D.N.Y. 2017); EEOC v. Carolls Corp., No. 5:98-CV-1772, 2011 W L 817516, at *3
(N.D.N.Y. March 2, 2011); See also EEOC v. Evans Fruit Co., Inc., 872 F. Supp.2d
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1107, 1111 (E.D. Wash. 2012) (determining that it was not improper for the EEOC to
use federal court discovery, inter alia, to ascertain the specific identity of additional
class members so long as employer was on notice of the existence of a class during the
course of the EEOC’s administrative investigation).

EEOC v. CSRT Van Expedited, Inc., 679 F.3d 657 (8 th Cir. 2012), upon
which defendant relies for the proposition that the EEOC is barred from bringing claims
for individuals not identified during its investigation, appears to be an outlier, likely
because of the factual circumstances presented in that case, to wit, the EEOC’s failure
to investigate the allegations of any of the 67 aggrieved persons at issue until after the
complaint was filed. See EEOC v. Schuster Co., 19-CV-4063, 2021 WL 1592666 (N.D.
Iowa Jan. 14, 2021) (collecting cases distinguishing CSRT Van Expedited, Inc.); See
EEOC v. CSRT Van Expedited, Inc., 2009 WL 2524402, at *19 (N.D. Iowa Aug. 13,
2009) (“the court is unpersuaded that defendant knew or should have known during the
administrative phase of this dispute that it would need to defend against the allegations
of the 67 allegedly aggrieved persons in the instant lawsuit.”).

Setting aside the question of the appropriate scope of the potential class
of employees eligible for redress in this lawsuit, as the EEOC notes (Dkt. #65, p.4 n.9),
disclosure of information identifying defendant’s employees may produce relevant
information regarding defendant’s work environment which the EEOC is empowered to
ameliorate regardless of whether such employees were subjected to actionable
discrimination themselves.
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Temporal Scope of Discovery
The Court recognizes conflicting authority as to whether the EEOC can
recover for Title VII violations arising more than 300 days prior to the filing of the initial
charge of discrimination against the employer. Cf. EEOC v. Protocol of Amherst, Inc.,
19-CV-598, 2020 WL 2130688, at *1 (W.D.N.Y. March 16, 2020) (while there is
conflicting authority on the question of whether the EEOC can recover for Title VII
violations arising more than 300 days prior to the filing of the charge of discrimination,
cases addressing the question in this district have held that it can), R&R adopted, 2020
WL 2127011 (May 5, 2020); Staffing Solutions of WNY, Inc., 2020 WL 7407736, at *1
(same); EEOC v. Sterling Jewelers, Inc., 08-CV-706, 2010 WL 86376 (W.D.N.Y. Jan. 6,
2010) (determining that although an administrative charge must be filed with the EEOC
within the 300-day period, the EEOC is not limited to violations occurring within that
period), with EEOC v. Upstate Niagara, 16-CV-842, 2018 WL 5312645, at *5 (W.D.N.Y.
2018) (where initial charge was filed with EEOC on May 18, 2010, the liability period for
any alleged violations begins on July 22, 2009); United Parcel Service, 2017 WL
9482105, at *9 (EEOC cannot bring a claim that accrued more than 300 days prior to
the filing of the triggering charge); Carolls Corp., 2011 WL 817516, at *4 (when the
EEOC brings a suit in its own name under § 706 on behalf of a group of aggrieved
persons, the plain language of § 2000e-5 applies and does not allow the EEOC to
resurrect otherwise stale claims); EEOC v. Bloomberg L.P., 751 F. Supp.2d 628,
(S.D.N.Y. 2010) (barring claims based on conduct that occurred more than 300 days
before filing of charge of discrimination); See also, Geo Group, Inc., 816 F.3d at 1203
(holding that the proper starting date of an EEOC class action is 300 days prior to the
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first charge of discrimination filed by an aggrieved employee); EEOC v. CSRT Van
Expedited, Inc., 615 F. Supp.2d 867, 877 (N.D. Iowa 2009) (collecting cases and
finding the better reasoned authority holds that Title VII does not grant the EEOC the
power to resurrect otherwise stale claims of unlawful employment discrimination and
limiting claims to discrimination which occurred within 300 days of the filing of the initial
charge of discrimination).

Regardless of how the Court of the Appeals for the Second Circuit might
resolve the temporal limits of liability in lawsuits commenced pursuant to Section 706,
the scope of discovery in Title VII cases is commonly extended to a reasonable number
of years prior to a defendant’s allegedly illegal action. Go v. Rockefeller Univ., 280
F.R.D. 165, 172 (S.D.N.Y. 2012); See Bloomberg, 751 F. Supp.2d at 649 n.17
(recognizing that the EEOC could use prior acts as background evidence in support of a
timely claim). More generally, courts commonly extend the scope of discovery to a
reasonable number of years both prior to and following the allegedly discriminatory
conduct. Upstate Niagara, 2019 WL 4543123, at *4 (Sept. 19, 2019) (collecting cases).
In Staffing Solutions, for example, Magistrate Judge McCarthy extended discovery
beyond the conclusion of the EEOC’s investigation. 2020 WL 7407736, at *3 (Oct. 16,
2020) (agreeing with the EEOC that because the complaint alleges continuing
discrimination, information about potential claimants from the conclusion of the
investigation to the present was relevant). Inasmuch as the instant complaint alleges
that defendant has engaged in racial discrimination since at least 2011 and continues to
engage in such conduct to the present, and given the EEOC’s representation to the
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Court that employees alleged to have engaged in such conduct remain employed with
defendant, the Court finds the appropriate scope of discovery to include 2011 through
the present.

Interrogatory No. 4
Interrogatory No. 4 asks defendant to identify any staffing company or
other entity that placed, referred, or recommended any employee to defendant. Dkt.
#65-4, p.5. Defendant responded that the interrogatory called for information which is
not relevant to any claims or defenses, but identified Coastal Staffing Service,
Incorporated (“Coastal Staffing), nonetheless. Dkt. #65-4, p.5. The EEOC argues that it
is aware that defendant stopped working with Coastal Staffing in 2015 and seeks
discovery relating to any other company that has worked with defendant. Dkt. #69, p.6.
For the reasons set forth above, no later than March 25, 2022, defendant shall identify
any staffing service that has worked with defendant for the time period from 2011
through the present.

Interrogatory No. 5
Interrogatory No. 5 asks defendant to identify all employees of Frontier
and provide name, race, contact information, date of hire or placement, date employee
was afforded permanent status, and date employee was terminated. Dkt. #65-4, p.5.
Defendant responded that the interrogatory was overly broad, unduly burdensome and
sought information previously provided to plaintiff or already in plaintiff’s possession.
Dkt. #65-4, p.5-6. In its general objections to interrogatories, defendant objected to
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interrogatories that were overly broad because they were not limited in time or by
reference to events relevant to this litigation. Dkt. #65-4, p.3. Defendant also responded
that it had issued a subpoena to Coastal Staf fing for information that may be
responsive to this interrogatory. Dkt. #65-4, p.5.

In opposition to the motion to compel, defendant argues that the EEOC
obtained detailed lists of the employees who worked at its facility from defendant and its
staffing agency during the course of its investigation. Dkt. #68, p.5. The EEOC replies
that defendant has not produced employee lists for the time period that is relevant to
this case or provided the name of any third party in possession of such information. Dkt.
#69. p.6. For the reasons set forth above, no later than March 25, 2022, defendant shall
provide the EEOC with the information requested in this interrogatory for the time period
from 2011 through the present.

Document Request No. 2
Document Request No. 2 seeks documents sufficient to identify all
employees employed by Frontier by: (a) full name, (b) race; (c) last known contact
information (including telephone, email and mailing address); (d) date(s) of hire or
placement; (e) date individual was made permanent, if applicable; and (f) date(s) of
termination, if applicable. Dkt. #65-3, p.8. Defendant responded that the request is
overly broad, unduly burdensome and seeks documents regarding employees who
were not identified as aggrieved during the EEOC’s investigation and are outside of the
relevant time period. Dkt. #65-3, p.8. W ithout waiving such objections, defendant
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responded that it produced information during its investigation which was responsive to
this request. Dkt. #65-3, p.8. In its general objections to document requests, defendant
objected that plaintiff was seeking records covering a time period of 18 years, which
was overly broad and unduly burdensome. Dkt. #65-3, p.5. Defendant further objected
to demands for documents more than 300 days prior to the filing of the charge of
discrimination prompting the EEOC’s investigation and beyond the date that the EEOC
issued its letter of determination and demand for conciliation. Dkt. #65-3, p.5.

In opposition to the motion to compel, defendant argues that the EEOC
obtained detailed lists of the employees who worked at its facility from defendant and its
staffing agency during the course of its investigation. Dkt. #68, p.5. The EEOC argues
that defendant has failed to produce documents for the relevant time period or with
respect to individuals not previously identified by the EEOC as aggrieved. Dkt. #69, p.7.
For the reasons set forth above, no later than March 25, 2022, defendant shall provide
the EEOC any documents in its possession or control that identify all employees from
2011 through the present.

Document Request No. 5
Document Request No. 5 seeks all communications among or between
defendant officers, executives, managers and/or supervisors (“management”),
concerning workplace graffiti, workplace comments or harassment about race and/or
national origin or the discipline or termination of employees, Basquin and Mitchell. Dkt.
#65-3, p.10. Defendant responded that the request is overly broad, unduly burdensome
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and seeks documents regarding employees who were not identified as aggrieved
during the EEOC’s investigation and are outside of the relevant time period. Dkt. #65-3,
p.10. Without waiving such objections, defendant responded that it produced
information during its investigation which was responsive to this request. Dkt. #65-3,
p.10.

Defendant responds that it has produced all responsive documents in it’s
possession and/or informed the EEOC that it has no responsive documents in its
custody, possession and control. Dkt. #68, p.5. The EEOC emphasizes that it alleges
continued racially discriminatory conduct and seeks prospective injunctive relief to
remedy such conduct. Dkt. #69, p.2. Moreover, the EEOC notes that the individuals
alleged to have engaged in racially discriminatory conduct remain employed by
defendant. Dkt. #69, p.2. For the reasons set f orth above, no later than March 25, 2022,
defendant shall provide the EEOC any documents requested that are in its possession
or control for the time period of 2011 through the present.

Document Request No. 6
Document Request No. 6 seeks communications between defendant’s
management and any staffing company concerning the employment of specifically
identified employees. Dkt. #65-3, p.10. Defendant responded that the request is overly
broad, unduly burdensome and seeks documents regarding employees who were not
identified as aggrieved during the EEOC’s investigation and are outside of the relevant
time period. Dkt. #65-3, p.10. W ithout waiving such objections, defendant responded
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that it produced information during its investigation which was responsive to this
request. Dkt. #65-3, pp.10-11.

Defendant responds that it has produced all responsive documents in it’s
possession and/or informed the EEOC that it has no responsive documents in its
custody, possession and control. Dkt. #68, p.5. More specifically, defendant responds
that it informed the EEOC that it did not have any responsive documents for those
individuals employed through Coastal Staffing, but had issued a subpoena to Coastal
Staffing for such documents. Dkt. #68, p.5. Defendant indicates that the EEOC has also
issued a subpoena to Coastal Staffing. Dkt. #68, p.5. The EEOC replies that
defendant’s refusal to identify other staffing agencies has prevented it from determining
whether all relevant information has been provided. Dkt. #69, p.7. For the reasons set
forth above, defendant shall provide the EEOC any documents requested that are in its
possession or control for the time period of 2011 through the present.

Document Request No. 7
Document Request No. 7 seeks all documents and communications
concerning employees referring to black employees using, inter alia, racial slurs. Dkt.
#65-3, p.11. Defendant responded that the request is overly broad, unduly burdensome
and seeks documents regarding employees who were not identified as aggrieved
during the EEOC’s investigation and are outside of the relevant time period. Dkt. #65-3,
p.11. Defendant also objects that plaintiff has failed to particularize the date, time or
place such slurs were allegedly used so as to permit it to conduct a search for
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responsive documents. Dkt. #65-3, p.11. Without waiving such objections, defendant
responded that it produced information during its investigation which was responsive to
this request. Dkt. #65-3, pp.11.

Defendant responds that it has produced all responsive documents in it’s
possession and/or informed the EEOC that it has no responsive documents in its
custody, possession and control. Dkt. #68, p.5. The EEOC replies that defendant has
limited its disclosure to the aggrieved individuals identified by the EEOC in its initial
disclosures. Dkt. #69, p.7. The EEOC emphasizes that it alleges continued racially
discriminatory conduct and seeks prospective injunctive relief to remedy such conduct.
Dkt. #69, p.2. Moreover, the EEOC notes that the individuals alleged to have engaged
in racially discriminatory conduct remain employed by defendant. Dkt. #69, p.2. For the
reasons set forth above, defendant shall provide the EEOC any documents requested
that are in its possession or control for the time period of 2011 through the present.

Document Request No. 8
Document Request No. 8 seeks all documents and communications
concerning Superintendent Oshirak’s use of racial slurs or presence when employees
used racial slurs. Dkt. #65-3, p.11. Defendant responds that the request is overly broad,
unduly burdensome and seeks documents regarding employees who were not
identified as aggrieved during the EEOC’s investigation and are outside of the relevant
time period. Dkt. #65-3, p.12. Defendant also objects that plaintiff has failed to
particularize the date, time or place such slurs were allegedly used so as to permit it to
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conduct a search for responsive documents. Dkt. #65-3, p.12. Without waiving such
objections, defendant responded that it produced inf ormation during its investigation
which was responsive to this request. Dkt. #65-3, pp.12.

Defendant responds that it has produced all responsive documents in it’s
possession and/or informed the EEOC that it has no responsive documents in its
custody, possession and control. Dkt. #68, p.5. The EEOC replies that defendant has
limited its disclosure to the aggrieved individuals identified by the EEOC in its initial
disclosures. Dkt. #69, p.7. The EEOC emphasizes that it alleges continued racially
discriminatory conduct and seeks prospective injunctive relief to remedy such conduct.
Dkt. #69, p.2. Moreover, the EEOC notes that the individuals alleged to have engaged
in racially discriminatory conduct remain employed by defendant. Dkt. #69, p.2. For the
reasons set forth above, defendant shall provide the EEOC any documents requested
that are in its possession or control for the time period of 2011 through the present.

SO ORDERED.

DATED:

Buffalo, New York
February 28, 2022
s/ H. Kenneth Schroeder, Jr.
H. KENNETH SCHROEDER, JR.
United States Magistrate Judge

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