United States District Court, S.D. Indiana, Indianapolis Division
ORDER ON MOTION TO ENFORCE ADMINISTRATIVE SUBPOENA
DEBRA McVICKER lYNCH, Magistrate Judge.
Americold Logistics, LLC ("Americold") is the respondent on charges of sex discrimination and retaliation filed with the Equal Employment Opportunity Commission by one of its employees, Cierra Hughes. The question presented in this matter is whether Americold must produce certain documents the EEOC has requested through an administrative subpoena issued as part of its investigation of Ms. Hughes's charge. The subpoena directs Americold to produce (1) a list of all of its facilities in the United States that are unionized and (2) a copy of each collective bargaining agreement in effect from January 1, 2012, to present for each unionized facility. Americold refused to produce them, contending that they are not relevant to Ms. Hughes's charge. The EEOC has filed a motion to enforce its subpoena. The parties briefed the issues, and the court held a hearing on August 5, 2014. Having considered the parties' written and oral arguments, the court DENIES the motion to enforce the subpoena.
Ms. Hughes's Charges
Cierra J. Hughes is lift truck operator at Americold's Indianapolis facility. She filed an EEOC charge against Americold on November 1, 2012, alleging sex discrimination and retaliation. Her charge complains of a hostile environment based on sex at her Americold facility, including constant name calling, constant sexual propositioning, interference with work activities, and failure by management to deal properly with complaints of harassment based on sex. She further alleges that the harassment escalated after her complaints and that Americold management told her that it was tired of dealing with her complaints and that she needed stop complaining. She also claims she was denied certain work assignments. Ms. Hughes filed a second charge on November 14, 2012, after her firing on November 13, 2012. Americold maintains she was fired for "malicious gossip" about another employee's sexual conduct, but Ms. Hughes charges that similarly situated employees were not similarly disciplined, and the termination was in retaliation for her earlier EEOC charge.
Ms. Hughes also grieved her termination under the facility's collective bargaining agreement, the result of which is that Americold changed her termination to 30-day suspension. She was reinstated on September 24, 2013, and was paid lost wages from December 17, 2012, to Sept. 24, 2013.
The Subpoena at Issue
On March 20, 2014, the EEOC served a Request for Information on Americold, seeking documents by April 4, 2014. The request was for the categories of documents at issue here: (1) a list of all Americold's facilities in the United States that are unionized and (2) a copy of each collective bargaining agreement in effect from January 1, 2012, to present for each unionized facility. On April 21, 2014, Americold's human resources corporate manager sent an email to the EEOC investigator explaining that Ms. Hughes had been reinstated. The April 21 email also stated that Americold would not produce a list of all of its facilities or the collective bargaining agreements for its warehouses other than Indianapolis because these documents were not relevant to Ms. Hughes's charges. Americold further explained that it has about 150 warehouses, that 50% are unionized, and that each collective bargaining agreement is facility-specific and separately negotiated.
On May 7, 2014, the EEOC issued an administrative subpoena to Americold, directing production of the same documents. It had a return date of May 27. The subpoena was served by certified mail addressed to Jeremy Deenik as Human Resource Specialist at Americold's Indianapolis facility. The receipt card for the mailing was signed by Carol Fred at Americold on May 8. On May 19, 2014, the EEOC received from Americold's counsel a petition to modify subpoena on the basis that its other facilities and their collective bargaining agreements are not relevant to Ms. Hughes's charges.
On May 23, 2014, the EEOC advised Americold that its petition to modify was not timely, thus requiring Americold to respond, and that if it did not, then EEOC would file enforcement proceeding. On May 27, 2014, Americold's counsel responded that the petition to modify had been timely submitted because service is measured by the date the subpoena was received in Americold's corporate offices in Atlanta by its Human Resources Manager, which was on May 19. The EEOC disagrees it was timely-and that the documents it seeks are irrelevant-and on June 17, 2014, filed this enforcement proceeding.
Waiver/Failure to Exhaust
The EEOC contends that Americold did not exhaust its administrative remedies and thus has waived any objections to enforcement of the subpoena. It relies on 29 C.F.R. § 1601.16(b), which provides that a recipient of an EEOC subpoena who does not intend to comply must file a petition seeking revocation or modification within five days of service, and on holdings that failure to do so effects a waiver of objections. The EEOC maintains that it served its subpoena on Americold on May 8 and that Americold did not invoke its administrative remedy until May 19, making it untimely and operating as a waiver of Americold's relevance objections to the subpoena.
Americold contends that it complied with the five-day requirement either because (a) a May 12 email from Americold's corporate human resources department to the EEOC investigator questioning the relevance of the documents requested was within five days of service of the subpoena on Americold's Indianapolis human resources department or (b) the May 19 formal petition to modify from Americold's lawyers was within five days of the date that Americold's corporate human resources department was formally served with subpoena (May 19). Americold also cites authority for the proposition that when the EEOC's subpoena does advise the recipient of the five-day period, the recipient does not waive objections by failing to make them within five days. Americold also charges ...