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Employer not estopped from clarifying “inadvertent” misrepresentations to EEOC

By Lorene D. Park, J.D.

Although an employer previously claimed, in EEOC administrative and subpoena enforcement proceedings, that two executives had ultimate hiring oversight as to the division in which the agency alleged it engaged in sex discrimination, a federal district court in Maryland declined to judicially estop the employer from now claiming that the executives did not have such authority. That said, the court noted that the employer could not “erase the record,” that its prior statements were admissible, and that the EEOC was entitled to full discovery on the matter (EEOC v Performance Food Group Co, LLC, October 8, 2014, Garbis, M).

Performance Food Group supplies food and other products to restaurants, hotels, and other food retailers. According to the EEOC, it also has maintained an ongoing pattern or practice of gender-based discrimination by failing to hire a class of female applicants for certain warehouse positions.

At trial, the EEOC plans to offer evidence that certain sex-based discriminatory remarks were made by the company’s VP of operations and one of its regional VPs. During the course of administrative proceedings before the EEOC, the employer took the position that these two VPs had ultimate hiring oversight over the company division at issue. In addition, the court in a separate proceeding to enforce a subpoena found that hiring data for applicants in the division over which the VPs “maintain hiring oversight” was relevant to the underlying charges.

Inadvertent misrepresentations. In this lawsuit, however, the employer took the contrary position that the VPs “lacked hiring oversight or control over any employees” in the facilities at issue. The employer sought to “clarify” and explain “certain facts which were inadvertently misrepresented during the course of the EEOC’s investigation.

In response, the EEOC filed a motion to have the employer judicially estopped from varying its representations in the instant case from those it made in prior proceedings. Alternatively, the agency sought to engage in additional discovery on the issue.

Reversing course okay, but . . . While the court found it true that the employer was now asserting a position that was factually incompatible with its prior position and that the EEOC and the court had accepted its prior position, it did not find that the company took the prior position for the purpose of gaining an unfair advantage in the administrative action or summons enforcement action. While there was still concern over the change in position, the court declined to apply judicial estoppel here.

That said, it was apparent to the court that the EEOC must be given a full opportunity for discovery on the matter. It also noted that while the employer was not estopped from changing its position, it could not “erase the record,” and the statements made in prior proceedings were admissible.