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Equal Employment Opportunity Commission v. Upmc

May 24, 2011


The opinion of the court was delivered by: Terrence F. McVerry United States District Judge


Pending before the Court is an APPLICATION FOR AN ORDER TO SHOW CAUSE WHY EQUAL EMPLOYMENT OPPORTUNITY COMMISSION'S ADMINISTRATIVE SUBPOENA SHOULD NOT BE ENFORCED (Document No. 1). The EEOC has filed a brief in support of the motion, UPMC has filed a response in opposition, and EEOC has filed a reply brief. In addition, both parties have submitted numerous exhibits. On May 18, 2011, the Court heard oral argument from counsel for both parties. The matter is ripe for disposition.

Factual and Procedural Background

Carol Gailey was hired as a Certified Nursing Assistant at "UPMC-Heritage Shadyside" *fn1 in March 2007. Gailey has numerous health problems, including heart disease, diabetes, cancer, angina, shortness of breath and severe depression. Gailey notified her employer on November 7, 2007 that she suffered from certain health conditions that would require her to miss an unspecified period of work. At the time, Gailey was not eligible for Family Medical Leave because she had not worked at the nursing home for twelve months or accrued 1,250 hours. Nevertheless, Gailey was provided with a Personal Leave of Absence ("PLOA") and short-term disability benefits in accordance with UPMC policies. Gailey was on PLOA leave from November 4-17, 2007; November 23-December 10, 2007; and December 13, 2007- January 28, 2008.

On February 5, 2008, Gailey returned to work pursuant to UPMC's RTW program in a temporary, alternative position. Gailey did not perform her regular duties as a Certified Nurse Assistant, but rather, performed sedentary tasks such as inventory and ordering supplies for approximately 30 hours per week. During this time, Gailey continued to receive short-term disability benefits to supplement her reduced earnings. Gailey's 26-week entitlement to short-term disability benefits expired on May 3, 2008. However, Gailey continued to work under the RTW program. On May 4, 2008, Gailey applied for long-term disability benefits, but was deemed ineligible at that time due to her ability to work.*fn2

On May 28, 2008, Gailey applied for, and was granted, another PLOA, so that she could undergo cancer surgery. According to Respondent, at the time of this application Gailey indicated that she would return to work on June 21, 2008. Gailey exhausted her entitlement to PLOA leave (fourteen (14) weeks per year) on June 21, 2008. Gailey failed to report to work and failed to contact her employer. In accordance with its policy, Respondent treated her failure to report to work as a voluntary resignation and terminated her employment effective June 22, 2008. On July 11, 2008, Gailey contacted Respondent concerning her ability to return to work and was advised that her employment had been terminated.

Gailey filed a Charge of Discrimination with the EEOC on June 17, 2009.*fn3 In the Charge, Gailey alleged that she "had been discharged because [she] did not return back to work on time from short-term disability." Gailey further alleged that she was given no warning that her employment would be terminated if she did not report to work.

On August 26, 2009, UPMC Heritage Place filed a Position Statement with the EEOC which denied Gailey's allegations and provided further details regarding her employment and termination. Attached to the Position Statement were copies of several UPMC policies. Policy HS-SR0705 addresses a "Harassment-free Workplace." Policy HS-SR0719 (the "PLOA Policy") covers a "Personal Leave of Absence (PLOA)." Policy HS-SR0722 (the "Disability Policy") is entitled "DISABILITY Income Protection (Short Term -- STD, Long Term -- LTD, and Salary Continuation)." It is UPMC's position that Gailey was terminated in accordance with the terms of the PLOA Policy, not the Disability Policy.

In April 2010, the EEOC sent a request for information ("RFI") to UPMC (not The Heritage Shadyside), which requested the identities of employees at "all facilities in the Pittsburgh region" who had been terminated in accordance with the PLOA and/or Disability Policies. In August 2010, UPMC objected to the scope of the RFI and refused to provide the requested information. On September 2, 2010 Subpoena No. TPI-881 (the "Subpoena") was served on UPMC pursuant to Section 710 of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-9, as incorporated by Section 107(a) of the Americans with Disabilities Act, 42 U.S.C. §12117(a), purportedly in support of the EEOC's investigation of Charge No. 533-2009-01155 filed by Carol Gailey. On September 7, 2010, UPMC filed a Petition to Revoke or Modify Subpoena. Five months later, on February 18, 2011, the EEOC denied the Petition. This litigation followed on April 21, 2011.

The EEOC Subpoena seeks information "for the period July 1, 2008 to the present time." Notably, it is undisputed that Gailey was terminated on June 22, 2008, such that the time period identified in the Subpoena does not overlap with Gailey's employment. The Subpoena seeks ten categories of information about "all employees who were terminated after 14 weeks of a medical leave of absence pursuant to Respondent's Personal Leave of Absence Policy and/or Disability Income Protection Policy, and/or any other applicable policy." The Subpoena is addressed to the entire corporate entity - UPMC, not Gailey's employer The Heritage Shadyside nursing home.

During the oral argument, counsel for EEOC was asked to describe the efforts that had been undertaken to obtain information that relates specifically to Gailey's claim. Counsel did not identify any such efforts, but instead, referenced the Position Statement, noted that the investigator had spoken with Gailey, and stated that "we want to get this information [in response to the Subpoena] and then we can determine what other information we need."

Legal Analysis

The general principles which govern the EEOC's authority to enforce a subpoena were summarized by the United States Court of Appeals for the Third Circuit in E.E.O.C. v. Kronos Inc., 620 F.3d 287 (3d Cir. 2010):

The EEOC is empowered to investigate charges of discrimination to determine whether there is reasonable cause to believe that an employer has engaged in an unlawful employment practice. See 42 U.S.C. §§ 2000e-5(b), 12117(a) (expanding the EEOC's power to investigate and address discrimination on the basis of disability). In connection with its investigation, the EEOC may issue administrative subpoenas. See id. § 2000e-9; 29 U.S.C. § 161(1). However, the EEOC's statutory investigative authority is ...

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