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Subpoena seeking pattern-or-practice evidence of disability bias relevant to EEOC investigation of 11 individual charges

By Marjorie Johnson, J.D.

While “a single discriminatory act does not, by itself, warrant a broader pattern-or-practice investigation,” the EEOC’s information request was based on multiple charges and sought information pertaining only to the locations where the charging parties worked.

An employer facing 11 separate EEOC charges of disability discrimination failed to thwart the Commission’s request for information regarding all employees who worked at the same locations as the charging parties and had requested an accommodation due to a medical condition or were identified as disabled during a several-year period. Ruling that the district court did not abuse its discretion in determining that the EEOC met its burden to demonstrate this geographically limited pattern-or-practice evidence was relevant to the investigation of the multiple individual allegations of disability discrimination against the employer, the Tenth Circuit, in an unpublished ruling, affirmed the district court’s order enforcing in part the administrative subpoena (EEOC v. Centura Health, June 28, 2019, Lucero, C.).

Numerous EEOC charges. The employer was a multi-facility healthcare organization operating primarily in Colorado. Between February 2011 and October 2014, 11 employees across eight locations filed EEOC charges alleging that the organization violated the ADA by either terminating them or refusing to allow them to return to work after medical leave because of their disabilities or their requests for accommodations.

EEOC seeks pattern-or-practice info. After receiving the first charge, the EEOC sought only information related to that particular case, including the employee’s personnel file and a list of all vacant positions at the time her employment ended. However, after three more charges were filed, the agency informed the employer that its “investigation may include like and related allegations by other aggrieved individuals involving bases and/or issues not directly affecting the Charging Party, as well as those like and related issues not alleged in the charge.” The EEOC then requested information about all employees from January 2009 through February 2012 who had requested and/or who were placed on medical leave or requested an accommodation for their disability. The employer objected to the scope of the request.

Employer objects as more charges mount. A month later, the EEOC sent an identical request identifying multiple charges as the objects of its investigation. However, the employer argued that the cases involved “unique and isolated circumstances at separate locations” that did not suggest a pattern of discrimination that would justify the broad request. The EEOC sent more requests as the remainder of the 11 charges were filed, but the employer only provided information regarding each charging party.

Subpoena. The agency then issued an administrative subpoena seeking, among other things, information regarding each employee who worked at the same facilities as the 11 charging parties between August 2009 and 2014 and either requested an accommodation or were identified as disabled. The employer refused, arguing that compliance would be unduly burdensome and that the requested information would only be relevant to a pattern-or-practice charge, which the EEOC hadn’t filed.

District court order. Enforcing the subpoena in part, the district court found that this information was relevant within the meaning of the statute “given the number of ADA charges the EEOC has received and the widespread geographic distribution of those charges.” The court also noted that “it is crucial that the Commission’s ability to investigate charges of systemic discrimination not be impaired.”

Broader standard. The district court did not abuse its discretion in determining the EEOC met its relevance burden which, the Tenth Circuit explained, “sweeps more broadly than it would at trial.” At the investigative stage, the EEOC seeks only to determine whether reasonable cause exists “to believe that the charge is true,” and because evidence of a discriminatory policy is relevant to individual charges under the narrower relevance standard in a civil case, it followed that such evidence was relevant to individual charges under the broader standard of Sec. 2000e-8(a) because it “might cast light” on the charges under investigation.

Multiple charges, limited geographical scope The Tenth Circuit also found that the boundaries it had set in cases where the EEOC sought pattern-or-practice evidence based only on individual charges didn’t warrant a finding that the district court had abused its discretion here. In this case, the EEOC’s subpoena was based on 11 charges and requested information pertaining only to the locations where the charging parties worked. “A subpoena adhering to the geographical scope of individual charges supports a determination that pattern-or-practice evidence is relevant to the investigation of individual charges.” And, while “a single discriminatory act does not, by itself, warrant a broader pattern-or-practice investigation,” the EEOC based its request on 11 charges.

The employer also argued that the only common theme tying the requested information to the 11 individual charges was the broad fact that they all alleged disability discrimination. However, while its representations of the “disparate factual nature” of the charges was “largely accurate,” it failed to convince the appeals court that 11 charges of disability discrimination—most alleging a failure to accommodate across a handful of its facilities—were insufficient to permit a finding that the information regarding pattern-or-practice was relevant.

EEOC’s statutory authority. The court also rejected the employer’s contention that holding pattern-or-practice evidence to be relevant to individual charges rendered “superfluous” Congress’ 1972 expansion of the EEOC’s powers to include its ability to investigate pattern-or-practice charges. The grant of authority to the agency to investigate such charges accompanied the transfer of that authority from the attorney general, and there was no evidence Congress meant to limit the type of evidence the EEOC could obtain when investigating individual charges.

Accordingly, the agency demonstrated that the pattern-or-practice evidence was relevant to the investigation of individual allegations in this case.