EEOC Blasted for 'Misuse of Authority' in Subpoena Spat
For the fourth time in two months, the U.S. Equal Employment Opportunity Commission was dinged by a judge for overreaching in an investigation. (See here, here and here for past coverage.) The latest slap-down comes at a time when the EEOC has made the elimination of discriminatory hiring methods one of its top priorities.
On Monday, a federal magistrate judge in Atlanta refused to enforce an administrative subpoena against Atlanta-based HomeNurse Inc., finding that the discrimination watchdog had abused its authority. [Hat tip: Law360.] In a scathing 37-page ruling, U.S. Magistrate Judge Walter Johnson concluded that the EEOC's investigation was out of bounds, its demands were too burdensome and the information it sought wasn't even relevant.
"The EEOC's highly inappropriate search and seizure operation, its failure to follow its own regulations, its foot-dragging, its errors in communication which caused unnecessary expense for [HomeNurse], its demand for access to documents already in its possession, and its dogged pursuit of an investigation where it had no aggrieved person, constitutes a misuse of its authority as an administrative agency," Johnson wrote.
EEOC's Atlanta office began investigating HomeNurse in May 2010 after a recently fired employee filed a complaint with the agency. The ex-employee asserted that the company's screening practices discriminated against a class of African-American, older and disabled candidates, as well as those with pre-existing genetic health conditions. The twist was that the employee wasn't actually a victim of the alleged discrimination: She was not disabled, was under age 40, had no existing genetic conditions, and is Caucasian.
Nonetheless, the EEOC waged a surprise raid of a branch office of the small company, which provides home attendants to patients in Georgia. According to HomeNurse, the EEOC's investigators waved a subpoena before the frightened staff and dove into the company's confidential personnel and patient files, "as if it were the FBI executing a criminal search warrant."
The raid prompted HomeNurse to reach out to its longtime employment counsel, David Long-Daniels of Greenberg Traurig. Over the next three years, the magistrate judge noted, the EEOC repeatedly rebuffed HomeNurse's counsel's entreaties to meet to resolve the matter. Instead, the agency filed an escalating series of subpoenas, culminating with an enforcement proceeding filed in July.
After reviewing the record, Johnson ruled Monday that the EEOC didn't come close to meeting the requirements for enforcing its subpoena.
"From my perspective, obviously, this is a very good result," said Long-Daniels."The EEOC essentially was running amok in the way they handled this, and the court was very concerned about the aggressive posture they took."
Long-Daniels, global co-chair of Greenberg's labor and employment practice, said there's been an uptick in such aggressive tactics by the EEOC in the past few years, particularly against smaller employers. But he's also noticed that judges are increasingly not buying those tactics. In March, for instance, he helped another client, Towersite Services LLC, recover nearly $100,000 in attorney fees and costs after a federal judge in Atlanta found the EEOC's Towersite claim frivolous. The EEOC, Long-Daniels said, has a right to conduct a legitimate investigation for an aggrieved person, "but they can't show up like Dirty Harry and intimidate people."
If the EEOC appeals the HomeNurse decision, Long-Daniels said, his client will also attempt to recover legal fees and costs.
Meanwhile, the EEOC is fighting back in another case where it was soundly thumped by a judge. On Friday the agency filed notice that it's once again appealing an Iowa federal judge's order that it must pay $4.7 million to trucking company CRST Van Expedited Inc. for CRST's attorney fees and costs. The Aug. 1 award, following an the judge's finding that the EEOC lodged frivolous claims, is widely believed to be the largest sanction ever levied against the agency.