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EEOC Entitled Only to Employer's Information Relevant to Charges under Investigation, Court Rules

  • March 5, 2012

Finding that the Equal Employment Opportunity Commission’s subpoena for a company’s nationwide recordkeeping data was “not relevant” to two individual disability discrimination charges, the U.S. Court of Appeals for the Tenth Circuit, in Denver, declined to enforce the EEOC’s subpoena.  EEOC v. Burlington Northern Santa Fe R.R. Co., 2012 U.S. App. LEXIS 3092 (10th Cir. Feb. 27, 2012).  The Court chided the EEOC for asserting that the district court incorrectly interpreted its request as seeking plenary discovery, saying that “in reality . . . the EEOC did seek plenary discovery” when it has no power to seek it.


Gregory A. Graves and Thomas A. Palizzi filed disability discrimination charges under the Americans with Disabilities Act against Burlington Northern Santa Fe Railroad Company in February 2007 and October 2007, respectively.  In their complaints to the EEOC, they alleged that, after extending them conditional offers of employment for a Conductor or Conductor Trainee position, the company rescinded those offers because it perceived them as disabled following their failing a medical screening procedure.  In response to the charges, the company said in a position statement that it did not view either applicant as “disabled” and it rescinded the offers based on medical requirements and safety concerns incident to those positions.

On February 2, 2009, the EEOC requested from the company “any computerized or machine-readable files . . . created or maintained by you . . .during the period December 1, 2006 through the present that contain electronic data about or effecting [sic] current and/or former employees … throughout the United States.”  After the company objected to the broad scope of the request, the Commission served a subpoena on it, again requesting the same information, explaining that it had broadened its investigation from the two individual charges to include “pattern and practice” discrimination.  The Commission, however, did not explain why, or on what basis, it was expanding its investigation.  Following procedures, the company filed with the EEOC a petition to revoke or modify the subpoena, which was denied. 

When the company did not comply with the subpoena, the EEOC applied to the district court for enforcement.  It stated in an affidavit that it had four similar charges against the company in Kansas, Minnesota, Texas, and Wyoming. The district court denied the EEOC’s enforcement request, holding the subpoena “pervasive,” “excessive,” and improperly sought “plenary discovery.”  The Commission appealed.


When conducting an investigation into alleged discrimination, the EEOC may request evidence that “relates to unlawful employment practices … and is relevant to the charge under investigation.” Therefore, “when a court is asked to enforce a Commission subpoena, its responsibility is to “satisfy itself that the charge is valid and that the material requested is relevant to the charge.”  University of Penn. v. EEOC, 493 U.S. 182, 191 (1990). 

Relevance Necessary

The EEOC argued on appeal that the information requested was relevant because the six charges, taken together, warranted an investigation into what it saw as an apparent pattern or practice of discrimination by the company.  The appeals court disagreed.
The subpoena involved only the two charges filed by Graves and Palizzi and contained no reference to “any other charge—by way of a reference to any other charging party, an additional charge number, or anything else—that might indicate that an additional charge is at issue.”  The Court therefore concluded that “the charge[s] under investigation” were those filed by Graves and Palizzi, and it was “against those charges that the relevance of any information sought by the EEOC must be measured.”  Calling the EEOC’s demand for nationwide recordkeeping data “incredibly broad,” the Court found the information sought was not relevant to charges of individual disability discrimination filed by two men who applied for the same type of job in the same state.  The Court also chastised the Commission for seeking unauthorized plenary discovery – that is, conducting a fishing expedition for evidence against the company before the EEOC actually filed a pattern or practice case against it.  The Court noted that any act of discrimination could be part of a pattern or practice of discrimination, but not every charge of discrimination warrants a pattern or practice investigation. As the Supreme Court explained in EEOC v. Shell Oil Co., 466 U.S. 54, 69 (1984), courts should not construe relevance so broadly as to render its requirement a nullity.  Accordingly, the Court held that the district court correctly denied enforcement of the EEOC’s subpoena.

The Tenth Circuit has jurisdiction over Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming.


Since the EEOC established its Systemic Discrimination Task Force in 2005, employers increasingly have seen the Commission use individual charges of discrimination to launch broad “pattern or practice” investigations into company-wide policies.  According to its 2012-2016 Strategic Plan, the EEOC plans to continue to focus on systemic discrimination.  (For more information on the Strategic Plan, see our article EEOC Approves New Strategic Plan Focusing on Systemic Discrimination.)

This Tenth Circuit decision provides good authority for employers to challenge overbroad discovery requests from the EEOC that do not appear relevant to the charges at issue.  This decision also may require the EEOC to identify potential pattern or practice claims early in its investigation and prior to pursuing plenary discovery in support of such claims.  Employers should consult with experienced employment law counsel on whether to challenge such requests from the Commission.  Jackson Lewis attorneys are available to answer questions about this decision.

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