The opinion of the court was delivered by: Honorable Jan E. DuBois
AND NOW, this 26th day of January, 2009, upon consideration of the Equal Employment Opportunity Commission's Application for an Order to Show Cause Why an Administrative Subpoena Should Not Be Enforced (Document No. 1, filed August 12, 2008); and Sunoco, Inc.'s Memorandum of Law of Respondent Sunoco, Inc. (R&M) in Opposition to Plaintiff's Application for an Order to Show Cause Why an Administrative Subpoena Should Not Be Enforced (Document No. 7, filed September 16, 2008), for the reasons set forth in the attached Memorandum, IT IS ORDERED that the Equal Employment Opportunity Commission's Application for an Order to Show Cause Why an Administrative Subpoena Should Not Be Enforced is GRANTED.
The Equal Employment Opportunity Commission ("EEOC") initiated this action against Sunoco, Inc. (R&M) ("Sunoco") on August 12, 2008. The case arises out of the EEOC's investigation of discriminatory testing practices at five of Sunoco's oil refineries. Sunoco objected to a subpoena issued by the EEOC seeking information as to Sunoco's testing practices at these refineries, prompting the EEOC to commence the instant enforcement action.
Presently before the Court is the EEOC's Application for an Order to Show Cause Why an Administrative Subpoena Should Not Be Enforced ("Application"). For the reasons that follow, the Court grants the EEOC's Application.
On or about February 5, 2007, Kevin Powell, a Sunoco employee, filed a Charge of Discrimination ("Charge") with the EEOC. (Resp't Mem. Opp. Pl.'s Application Ex. A.) In the Charge, Mr. Powell alleged that Sunoco discriminated against him on the basis of age, race, and color by failing to promote him over younger, less qualified white applicants and retaliated against him after he complained about discriminatory treatment at his refinery. (Id.) In addition, Mr. Powell alleged that Sunoco discriminated against African Americans by administering a test that disparately impacts qualified African American applicants (Id.; Petr's Application 2.)
On April 19, 2007, the EEOC sent Sunoco a First Request for Information, to which Sunoco responded on May 18, 2007, addressing the allegations against it and providing information and documents related to Mr. Powell's claims. (Resp't Mem. Opp. Pl.'s Application 4.) Approximately eleven months later, on April 17, 2008, the EEOC issued to Mr. Powell a limited Notice of Right to Sue as to his individual allegations of discrimination. (Id. at Ex. G.) The limited Notice stated: (1) the EEOC would "terminat[e] its processing of this charge" as to the "Charging Party's individual allegations;" and (2) the EEOC "will continue to process this charge" as to "the issue of testing." (Id.)
On April 17, 2008, William D. Cook, the EEOC's enforcement manager, wrote a letter to Tiana R. Escofil, Sunoco's Labor and EEO Specialist, stating that "the EEOC will discontinue its processing of the Charging Party's allegations of individual harm" while "continu[ing] to process the charge insofar as it relates to tests utilized" at five Sunoco refineries. (Id. at Ex. H.) Brenda Hester, the EEOC's investigator for this case, also wrote a letter to Ms. Escofil, "informing [Sunoco] that the scope of the Commission's investigation is being expanded to include additional facilities and issues regarding [Sunoco's] hiring process." (Id.) Attached to Ms. Hester's letter was a Second Request for Information seeking additional information and records related to this issue of discriminatory testing.*fn1 (Id.)
On April 24, 2008, before the date the additional information was due, Carol Monaghan, Sunoco's Supervisor of Labor and EEO Investigations, wrote a letter to Ms. Hester requesting that the EEOC provide the charge information it was investigating since it "discontinued the processing" of Mr. Powell's charge and never issued a Commissioner's charge. (Id. at Ex. J.) After a telephone call between Ms. Hester and Ms. Monaghan on April 30, 2008 that did not resolve the issue, Ms. Monaghan wrote Ms. Hester a letter advising that Sunoco "will not provide any information for a charge that has been discontinued and where a 'Right to Sue' has been issued." (Id. at K.)
On June 6, 2008, the EEOC served Sunoco with a subpoena for the requested information (Id. at Ex. L.) On June 18, 2008-the day before the subpoenaed information was due-Brian Rhodes, a senior attorney at Sunoco, informed Ms. Hester that Sunoco would produce some information by June 26 or 27, 2008. (Pl.'s Application 3.) However, Sunoco argues that "Mr. Rhodes was under the mistaken belief that the EEOC was seeking the information pursuant to a valid open charge" when he spoke with Ms. Hester. (Resp't Mem. Opp. Pl.'s Application 6.) When he realized his mistake, Mr. Rhodes informed Ms. Hester that Sunoco would not be submitting any information and expressed his intent to file a petition to revoke. (Id. at 6--7.) Ms. Hester, however, said it was too late to do so. (Id. at 7.) Nonetheless, by letter of July 1, 2008-25 days after the subpoena was served-Sunoco objected to the subpoena on the grounds that it lacked relevance, was overly broad, unduly burdensome, and did not give fair notice of the existence and nature of any pending charge to which it related. (Id. at Ex. N.)
On July 16, 2008, Mr. Powell filed a lawsuit against Sunoco in the Eastern District of Pennsylvania, alleging race-based discrimination and retaliation under Title VII of the Civil Rights Act of 1964, the Civil War Civil Rights Statute (42 U.S.C. § 1981), and the Pennsylvania Human Relations Act (43 P.S. § 951 et seq). ...