EEOC v. V&J Foods Inc

Filing 10

ORDER signed by Judge Rudolph T. Randa on 7/7/2015. Application to Enforce Administrative Subpoena GRANTED. Defendant must produce the items listed in this Order. EEOC entitled to costs. (cc: all counsel)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION,
Applicant,
-vs-

Case No. 15-MC-7

V&J FOODS, Inc. d/b/a
BURGER KING,
Defendant.
DECISION AND ORDER
This is an application to enforce an administrative subpoena issued by
the Equal Employment Opportunity Commission. For the reasons that follow,
this application is granted.
The Subpoena relates to a disability discrimination charge filed by
Glenn Shaw against V&J Foods, Inc., d/b/a Burger King. The EEOC initially
requested Mr. Shaw’s “personnel file, including but not limited to performance
evaluations, disciplinary actions, payroll actions, personnel actions, [and]
investigative reports …” That request was made in June of 2013. More than a
year passed, but V&J didn’t produce any of the requested information. Thus,
on July 9, 2014, the EEOC served V&J with Subpoena No. CHMK-A14-6.
The Subpoena seeks, among other items, “all communications of any
kind …, telephone records …, personnel records, performance reviews, leave

records, attendance records, return to work records, work assignment records,
calendars or schedules, including any of such records kept by [Shaw’s
supervisor] Todd Wittenberg, [V&J’s] Human Resources Department, or any
other managers …”. The Subpoena also seeks a variety of files, including,
most prominently, Shaw’s personnel file. V&J complied in fits-and-starts, but
not completely. As a result, the EEOC filed this application on February 26,
2015.
Subpoena enforcement proceedings “are designed to be summary in
nature.” EEOC v. United Airlines, Inc., 287 F.3d 643, 659 (7th Cir. 2002)
(quoting EEOC v. Tempel Steel Co., 814 F.2d 482, 485 (7th Cir. 1987)). So long
as the investigation is “within the agency’s authority, the subpoena is not too
indefinite, and the information sought is reasonably relevant, the district
court must enforce an administrative subpoena.” Id. Traditionally, courts
have allowed the EEOC access to information that “might cast light on the
allegations against the employer.” EEOC v. Shell Oil Co., 466 U.S. 54, 68-69
(1984). Still, the relevance requirement is meant to “prevent fishing
expeditions,” and the EEOC must have “a realistic expectation rather than an
idle hope that something may be discovered.” EEOC v. United Air Lines, Inc.,
287 F.3d 643, 653 (7th Cir. 2002).
V&J complains that the EEOC did not make a reasonable attempt to
explain its theory of liability. This argument is tangential to the relevance

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requirement, which is easily satisfied. The EEOC requests all information
related to Shaw. To state the obvious, such documents could “cast light” on
Shaw’s allegations of disability discrimination. The subpoena is also within
the EEOC’s authority and not indefinite. Therefore, it must be enforced.
V&J plays coy as to whether it has more responsive documents.
Regarding such an argument in the context of an NLRB subpoena, the Court
observed that “the Board wants more, and it is entitled to more. If the
respondents have no further evidence, they can testify as such.” NLRB v.
Marano, 996 F. Supp. 2d 720, 724 (E.D. Wis. 2014). To this end, the EEOC
suggests, and the Court agrees, that V&J must certify under penalty of
perjury that all responsive documents have been produced.
NOW, THEREFORE, BASED ON THE FOREGOING, IT IS
HEREBY ORDERED THAT the EEOC’s application to enforce EEOC
Subpoena No. CHMK-A14-6 is GRANTED. V&J must produce the following:
1.

All

communications

regarding

Glenn

Shaw

from

Todd

Wittenberg’s account for January 1 to March 16, 2011, and
November 23, 2011, to December 31, 2012;
2.

All communications regarding Shaw from anyone in V&J’s
Human Resources Department for the entire calendar year 2011
and 2012;

3.

All communications regarding Shaw from any of its managers,

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up to and including Valerie Daniels-Carter, V&J’s President and
Chief Executive Officer, and Calvin Scott, V&J’s Vice President
of Administration and Legal Counsel, for all of 2011 and 2012;
4.

Shaw’s entire personnel file or a declaration, signed under
penalty of perjury by Ms. Daniels-Carter or Mr. Scott, stating
clearly and unequivocally that V&J has produced Shaw’s entire
personnel file; and

5.

A declaration, signed under penalty of perjury by Ms. DanielsCarter or Mr. Scott, stating clearly and unequivocally that V&J
has produced all responsive documents in its possession, custody,
or control.

IT IS FURTHER ORDERED that the EEOC is entitled to costs.

Dated at Milwaukee, Wisconsin, this 7th day of July, 2015.
BY THE COURT:
__________________________
HON. RUDOLPH T. RANDA
U.S. District Judge

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