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Equal Employment Opportunity Commission v. Centura Health

United States District Court, D. Colorado

September 1, 2017

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,
v.
CENTURA HEALTH, Respondent.

          ORDER

          CRAIG B. SHAFFER UNITED STATES MAGISTRATE JUDGE.

         This matter is before the court on the Equal Employment Opportunity Commission's (“EEOC”) application to enforce an administrative subpoena issued to Centura Health Corporation (“Centura”), dated December 11, 2014. Doc. 2-49 (the “Subpoena”). On September 28, 2016, Judge William J. Martínez enforced the Subpoena in part and referred the remainder to this court for further proceedings. Doc. 20 (“Referral Order”).

         I. PROCEDURAL HISTORY

Between February 2011 and October 2014, the EEOC received eleven discrimination charges against Centura. (ECF No. 2 at 3-6.) These charges spanned six Centura medical facilities in Colorado and claimed violations of the Americans with Disabilities Act (“ADA”), the Age Discrimination in Employment Act (“ADEA”), and Title VII of the Civil Rights Act of 1964. (Id.) All eleven charges contained common allegations particularly of failure to accommodate, or discipline and termination, in violation of the ADA. (Id.)
In December 2014, the EEOC issued an administrative subpoena to Centura, requesting information and documents under eighteen headings…. Centura complied with certain parts of the subpoena but refused to comply with items 1-9, 10(a), 11-12, 15(d), and 18.

Referral Order at pp. 1-2. Judge Martínez ordered Centura to comply with all disputed items except those referred to as Compilation Requests: 9, 11(b), 12(b), 15(d) and 18(e). Id. at pp. 3-4.

         The Compilation Requests ask for the following information and documents.

. Item 9: “[A] compilation of detailed data from eleven Centura facilities regarding all employees who requested an accommodation due to a medical condition since August 1, 2009.” Referral Order at p. 4; see Subpoena at pp. 2-3 ¶¶ 9(a)-(u).
. Item 11(b): With regard to an individual charge 541-2012-963, “the names, titles and dates of birth for all employees working at Centura Health Corporation, d/b/a St. Mary-Corwin Medical Center who were sent for fitness for duty evaluation at any time from August 1, 2009, to the present.” Subpoena at p. 3 ¶ 11(b).
. Item 12(b): With regard to the same individual charge as item 11(b), “a list of all physicians working at the same facility as Dr. Keen who received patient complaints from January 1, 2010, through and including December 31, 2011, ” detailed data regarding those physicians, copies of the patient complaints (or, if not written, explanations of the complaints), and a description of any actions Centura took regarding the complaints, and documentation thereof. Subpoena at p. 3 ¶ 12(b).
. Item 15(d): With regard to an individual charge 541-2011-01885, “a list of all employees working at Centura Health Corporation, d/b/a St. Anthony's Central and St.. Anthony's Lakewood who have been discharged for sleeping on the job from August 1, 2009, through and including the present. Submit all documentation to support your answer.” Subpoena at p. 5 ¶ 15(d).
. Item 18(e): With regard to an individual charge 32A-2012-00055, “a compilation of detailed data regarding essentially every Centura employee in Colorado who was ever identified by the company as disabled since August 1, 2009.” Referral Order at p. 4; see Subpoena at p. 6 ¶¶ 18(e)(1)-(16).

         Judge Martínez found each of these requests relevant.

The Court finds that this information is relevant to the EEOC's investigation, particularly given the number of ADA charges the EEOC has received and the widespread geographic distribution of those charges. See EEOC v. Shell Oil Co., 466 U.S. 54, 68-69 (1984) (“courts have generously construed the term ‘relevant' and have afforded the Commission access to virtually any material that might cast light on the allegations against the employer”; “it is crucial that the Commission's ability to investigate charges of systemic discrimination not be impaired”).

Referral Order at pp. 4-5.

         As to the question of undue burden, the EEOC presented a declaration from its investigator Troy Lutman. Mr. Lutman had met with Centura representatives and recalled that one of them said the requested information could largely be produced with the press of a button. Doc. 4-2 (Lutman Declaration dated March 24, 2014). Centura denied making such a representation and asserted that the information requested in items 9 and 18(e) did not exist in electronically searchable form and would require manual review of files relating to approximately 15, 500 employees. Doc. 13-3 (Declaration of Deana Hernandez, July 2014), doc. 13-4 (Declaration of Belinda Shaw, July 2014); doc. 13-5 (Declaration of Kimberly Kmentt, Esq., Aug. 2016); doc. 17-1 (Supp. Declaration of K. Kmentt, dated Sep. 2016). On that record, Judge Martínez ruled:

Centura claims it would take nine employee-years of work to comply. Centura further claims that the cost of compliance would be $730, 000. (ECF No. 13 at 13.) The EEOC, for its part, simply disbelieves Centura's claims that the data must be gathered by hand, as opposed to through an easily searchable database.
Plainly the parties are far apart on this issue. Moreover, the Court cannot resolve it without making a credibility determination. Accordingly, the Court will refer the dispute over subpoena items 9, 11(b), 12(b), 15(d), and 18(e) to the Magistrate Judge for appropriate proceedings. The Magistrate Judge shall determine the likely burden on Centura to respond to those subpoena items.

Referral Order at p. 5. Judge Martínez further instructed that if the undersigned “finds that compliance would be unduly burdensome, the Magistrate Judge may, in his discretion, quash certain subpoena items, modify them, direct the parties to confer on a more-limited scope, or take any other action he deems appropriate.” Id. at p. 6.

         Following the Referral Order, this court initially set a status conference for mid-October 2016. The parties requested additional time to allow for further conferral. The court has since held several conferences with counsel. Doc. 27 (Dec. 5, 2016 conference); doc. 29 (Jan. 6, 2017 conference); doc. 34 (Feb. 7, 2017 motion hearing); doc. 37 (April 27, 2017 conference); doc. 40 (May 8, 2017 conference); doc. 46 (June 29, 2017 conference). Information technology representatives from both sides attended the February 7, 2017 hearing.

         In conferrals leading up to the February 7 hearing, the EEOC proposed for Centura to produce certain electronic data from which the EEOC would narrow the number of employees of interest. Specifically, the EEOC selected files from Centura's database referred to as “Lawson”[1]that the EEOC believed likely to identify employees of interest for its investigation. The court modified that proposal to limit the data to the facilities identified in the Subpoena and ordered Centura to produce the data by February 28, 2017. Doc. 34. Centura apparently produced the data as ordered. The EEOC then had until March 31, 2017 to respond.

         In a March 31, 2017 letter, the EEOC identified 1, 277 employees of interest. Doc. 42-3. The EEOC proposed that as to each of those 1, 277 employees, Centura would produce (1) specified contact information, (2) medical files, and (3) four categories of personnel documents: (a) Return to Work/ADAAA Interactive Process/Dialogue Conference; (b) Request for Fitness-for-Duty Evaluation and Notification to Associate of Fit-for-Duty Request; (c) “disciplinary documents, ” including but not limited to “Corrective Action Form;” and (d) separation or termination letters, including but not limited to “Re-employment Eligibility Verification.” Id. at p. 2. In the alternative, Centura could instead produce these employees' entire medical and personnel files. Id.

         On April 14, 2017, after removing duplicates and a subset of employees based on further information from Centura regarding the “Fit Test” category, the EEOC identified 880 employees of interest. Doc. 42-4 (April 14, 2017 email from EEOC to Centura's counsel, referred to hereafter as the “April 14 Proposal”). The EEOC explained that the 880 employees consisted of:

14 employees who identified as disabled and received a disciplinary action or were involuntarily terminated; 39 employees who requested a reasonable accommodation and received a disciplinary action or were involuntarily terminated; 356 employees who took FMLA or non-FMLA leave and received a disciplinary action or were involuntarily terminated; and, 471 employees who requested a reasonable ADA accommodation (this total does not include the 39 employees above).

Id. An earlier email included in the same chain as the April 14 Proposal confirms that the EEOC continued to request the same information and documents as identified in its March 31, 2017 correspondence. Id.

         In the next conference, Centura declined the April 14 Proposal and submitted a declaration from Brian Aoyagi, manager of Centura's human resources information systems and analytics, estimating the burden that the proposal would impose. Doc. 44-12 (undated declaration presented at April 27, 2017 conference). In the same conference, the EEOC also clarified that it is pursuing only items 9 and 18(e). Doc. 47 (April 27, 2017 transcript) at pp. 44:10-45:19; see also Id. at p. 28:15-29:5 (expressly disclaiming pursuit of item 12(b)). Two weeks later, the EEOC proposed to settle the dispute if Centura would produce “the electronically recorded contact information for the [880] people… identified.” Doc. 48 (May 8, 2017 Transcript) at p. 13. Centura declined because in its view, the EEOC had recently acknowledged that it does not seek this discovery for the individual charges but only for investigating whether Centura engaged in a pattern or practice of discrimination. Doc. 48 (May 8, 2017 Transcript) at p. 15; Doc. 44-13 (Centura email dated May 2, 2017) at pp. 1-2. Centura argued that pattern or practice discovery is impermissible because the EEOC has only issued letters (see, e.g., doc. 2-13; doc. 2-19) expanding the investigation, not a formal charge thereof.

         The parties being at an impasse, the court set a schedule for updated briefing. Doc. 40 (minutes of May 8, 2017). On May 31, 2017, the EEOC filed its brief and supporting declarations. Doc. 42 (hereafter the “EEOC Brief”). On June 26, 2017, Centura responded. Doc. 44 (hereafter the “Centura Brief”). The EEOC waived its right to reply, and both parties waived oral argument. Doc. 46.

         II. ...


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