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Equal Employment Opportunity Commission v. Tricore Reference Laboratories

United States Court of Appeals, Tenth Circuit

February 27, 2017

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Petitioner - Appellant,
v.
TRICORE REFERENCE LABORATORIES, Respondent - Appellee. EQUAL EMPLOYMENT ADVISORY COUNCIL, Amicus Curiae.

         APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO (D.C. No. 1:15-MC-00046-WJ)

          Jeremy D. Horowitz, Attorney (P. David Lopez, General Counsel, Jennifer S. Goldstein, Associate General Counsel, and Margo Pave, Assistant General Counsel, with him on the briefs), Equal Employment Opportunity Commission, Washington, DC, appearing for Appellant.

          Geoffrey D. Rieder (Sarah K. Downey and Lexi W. Jones, with him on the brief), Foster, Rieder & Jackson, P.C., Albuquerque, New Mexico, appearing for Appellee.

          Rae T. Vann and Michael P. Bracken, NT Lakis, LLP, Washington, DC, filed a brief on behalf of amicus curiae Equal Employment Advisory Council in support of Appellee.

          Before MATHESON, PHILLIPS, and McHUGH, Circuit Judges.

          MATHESON, Circuit Judge.

         This appeal asks whether a district court abused its discretion in declining to enforce an administrative subpoena. The Equal Employment Opportunity Commission ("EEOC") issued a subpoena to TriCore Reference Laboratories ("TriCore") seeking information relating to an individual's charge of disability and pregnancy discrimination. After TriCore refused to comply, the EEOC asked the New Mexico federal district court to enforce the subpoena. The court denied the request, and the EEOC now appeals. Although we disagree with some of the district court's analysis, we cannot say it abused its discretion. Exercising jurisdiction under 28 U.S.C. § 1291, we therefore affirm.[1]

         I. BACKGROUND

         We summarize the relevant statutes and then present the factual and procedural background for this appeal.

         A. Legal Background

         1. Title VII and the ADA

         Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act, prohibits employers from discriminating based on sex, including pregnancy. 42 U.S.C. §§ 2000e-2(a)(1), 2000e(k). Employers must treat pregnant individuals "the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work." Id. § 2000e(k).

         The Americans with Disabilities Act of 1990, as amended by the ADA Amendments Act of 2008, ("ADA") prohibits employers from discriminating against employees on the basis of disability and requires employers to make "reasonable accommodations" to "qualified individual[s], " unless the accommodations impose an undue hardship on the employer. Id. §§ 12112(a), (b)(5)(A). A "qualified individual" under the ADA is someone who, "with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." Id. § 12111(8). A charge alleging discrimination may be filed either by the "person claiming to be aggrieved, or by a member of the [EEOC]." Id. § 2000e-5(b).

         2. The EEOC's Investigative Power

         The EEOC is empowered to investigate charges of discrimination and enforce both Title VII and the ADA. Id. §§ 2000e-5(a)-(b), 12117(a); EEOC v. Waffle House, Inc., 534 U.S. 279, 285 (2002) ("Congress has directed the EEOC to exercise the same enforcement powers, remedies, and procedures that are set forth in Title VII . . . when it is enforcing the ADA's prohibitions . . . .").

         When investigating charges of discrimination, the EEOC may obtain evidence that "relates to unlawful employment practices covered by [Title VII] and is relevant to the charge under investigation." 42 U.S.C. § 2000e-8(a). The EEOC also has authority to "investigate and act on a charge of a pattern or practice of discrimination." Id. § 2000e-6(e).

         If an employer refuses to comply with the EEOC's request for information, the EEOC may issue a subpoena compelling production. Id. § 2000e-9 (incorporating the provisions of 29 U.S.C. § 161, which provides the power to issue subpoenas to parties under investigation). If the employer does not respond to the subpoena, the EEOC may apply to a federal district court for an order compelling the employer to provide the subpoenaed information. 29 U.S.C. § 161(2).

         B. Factual Background

         1. Ms. Guadiana's Requests for Accommodation and Her Termination

         TriCore is a medical reference laboratory with multiple locations throughout New Mexico. In 2011, Kellie Guadiana began working at TriCore's Albuquerque location as a phlebotomist-someone who draws blood.

         Beginning in November 2011 and continuing into 2012, Ms. Guadiana requested accommodations to her work schedule and responsibilities due to her rheumatoid arthritis, which she asserted was exacerbated by her pregnancy. In support of her requests, Ms. Guadiana submitted notes from her doctors recommending she sit for at least 75 percent of her shift and avoid exposure to infectious diseases, a common risk faced by phlebotomists.

         After reviewing her doctors' notes and meeting with her several times, TriCore's human resources department determined Ms. Guadiana could not safely perform the essential functions of her phlebotomist position. TriCore offered Ms. Guadiana the opportunity to apply to other positions within the company for which she was qualified and whose essential functions she could perform. On May 5, 2012, after Ms. Guadiana did not apply to a new position, TriCore terminated her employment.

         2. Charge of Discrimination and the EEOC's Investigation

         On June 26, 2012, Ms. Guadiana filed a charge of discrimination with the EEOC alleging that TriCore had discriminated against her due to her disability (rheumatoid arthritis) and sex (pregnancy). In the charge, she stated:

I am an individual with a disability of which my employer was well aware of. Since becoming pregnant I have submitted requests for accommodation because the pregnancy affects the disability. Respondent terminated my employment without any interactive process on May 5, 2012. This is a violation of the American's [sic] with Disabilities Act and Title VII of the Civil Rights Act of 1964, as amended to include the Pregnancy Act.

App. at 26.

         In response, TriCore explained to the EEOC that it had provided Ms. Guadiana a reasonable accommodation by offering her the chance to apply for other positions within TriCore. As the EEOC explained in its application to enforce the subpoena, it viewed TriCore's response as suggesting a violation of the ADA because it thought the ADA required TriCore to reassign Ms. Guadiana to a vacant position rather than merely provide her an opportunity to apply for another position. TriCore's statement led the EEOC to suspect that TriCore had a "companywide policy and/or practice of refusing to provide reassignment as a reasonable accommodation to qualified individuals with disabilities." Id. at 17.

         The EEOC informed TriCore in a letter that it was expanding the scope of its investigation to include the "[f]ailure to accommodate persons with disabilities and/or failure to accommodate women with disabilities (due to pregnancy)." Id. at 37. This additional information, according to the EEOC, was "like and related to the underlying charge" (i.e., Ms. Guadiana's original charge of discrimination) or was "based on evidence uncovered during the EEOC's investigation of the underlying charge." Id. The EEOC cited its Compliance Manual for its authority to expand the investigation.[2]

         As part of its expanded investigation, the EEOC sent TriCore another letter requesting: (1) a complete list of TriCore employees, along with their personal identifying information, who had requested an accommodation for disability ("the disability request"); and (2) a complete list of TriCore employees who had been pregnant while employed at TriCore, including the employees' personal identifying information and whether they sought or were granted any accommodations ("the pregnancy request"). Id. at 36.[3] The EEOC sought that information for a four-year time frame.

         TriCore refused to comply, contending the EEOC did not have an actionable claim of discrimination. On February 23, 2015, the EEOC submitted another letter seeking the same information but limited to a three-year time frame. After TriCore continued to refuse to comply, the EEOC subpoenaed the information it had sought in its February 23, 2015 letter. TriCore petitioned the EEOC to revoke the subpoena, arguing it was unduly burdensome and a "fishing expedition." Id. at 57, 59. The EEOC denied TriCore's petition.

         C. Procedural Background

         After TriCore refused to comply with the EEOC's subpoena, the EEOC submitted an application to the United States District Court for the District of New Mexico requesting an order to show cause why the subpoena should not be enforced. TriCore responded, ...


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