Equal Employment Opportunity Commission v. Citicorp Diners Club, Inc.

985 F.2d 1036, 1993 U.S. App. LEXIS 1447, 60 Empl. Prac. Dec. (CCH) 42,047, 60 Fair Empl. Prac. Cas. (BNA) 1242
CourtCourt of Appeals for the Tenth Circuit
DecidedFebruary 1, 1993
Docket91-1419
StatusPublished
Cited by22 cases

This text of 985 F.2d 1036 (Equal Employment Opportunity Commission v. Citicorp Diners Club, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Equal Employment Opportunity Commission v. Citicorp Diners Club, Inc., 985 F.2d 1036, 1993 U.S. App. LEXIS 1447, 60 Empl. Prac. Dec. (CCH) 42,047, 60 Fair Empl. Prac. Cas. (BNA) 1242 (10th Cir. 1993).

Opinions

McWILLIAMS, Senior Circuit Judge,

This case involves an administrative subpoena issued by the Equal Employment Opportunity Commission (EEOC).

On September 2, 1988, Ms. Deborah Hinton Brown, a black female employee of Citicorp Diners Club, Inc. (Diners Club) in its office located in Englewood, Colorado, filed a charge with the EEOC wherein she alleged that Diners Club denied her a promotion because of her sex and race. Shortly thereafter, the EEOC commenced an investigation of Ms. Brown’s charge. From September 2, 1989, to June 4, 1990, the EEOC conducted on-site interviews and made numerous requests for information concerning Diners Club’s promotion policies. Diners Club apparently complied with these requests.

On June 4, 1990, the EEOC requested additional information from Diners Club concerning its promotion policies. After seeking and receiving clarification from the EEOC regarding the request, Diners Club provided only such additional information as it believed was relevant and not unduly burdensome. In this regard, Diners Club declined to give the EEOC information regarding promotions outside Ms. Brown’s work group, which information it believed was not relevant to Ms. Brown’s charge. Diners Club also declined to provide information regarding its “within promotion” policy,1 which information it contended did not exist and would require hundreds of hours of work by Diners Club employees to develop and compile.

To compel Diners Club to produce all the information the EEOC sought, on March 26, 1991, the EEOC issued and served on Diners Club an administrative subpoena, which is the genesis of the present controversy. That subpoena is attached hereto as Attachment A. Two requests in the subpoena required production of information relating to Diners Club facilities nationwide. The remaining requests related solely to the Diners Club facility in Engle-wood, Colorado.

[1038]*1038On April 2, 1991, Diners Club petitioned the Denver District Office of the EEOC to either revoke or modify the subpoena. The EEOC refused to either modify or revoke, whereupon Diners Club notified the EEOC that it would not comply with the subpoena.

On August 5,1991, pursuant to 42 U.S.C. §§ 2000e-5(f) and 2000e-9, the EEOC petitioned the United States District Court for the District of Colorado for an order to enforce the subpoena. On September 6, 1991, the district court ordered Diners Club to show cause why it had not produced the information requested in the subpoena. Diners Club filed with the district court a brief in opposition to the order to show cause, advising the district court that Ms. Brown and Diners Club had reached a settlement and that Ms. Brown had requested that the charge be withdrawn. However, the settlement was apparently contingent on the EEOC’s withdrawal of the charge. The EEOC had refused to consent to the withdrawal of the charge until it received the subpoenaed information so that it could then determine whether withdrawal of the charge would defeat the purposes of Title VII.2

On October 4, 1991, a, hearing was held on the order to show cause. As we understand it, no witnesses were called, although Diners Club offered the affidavit of one of its employees, Patricia Giordano. That affidavit, which was received into evidence, is attached hereto as Attachment B. Otherwise, the hearing consisted of argument by opposing counsel and colloquy between the court and counsel.

On November 5, 1991, the district court ordered Diners Club to comply with the subpoena, except in one important particular. The district court held that the requests for information concerning the promotion policies of Diners Club “nationwide” were “overbroad” and limited the request for information concerning promotion policies to the Diners Club office in Englewood, Colorado. In ordering eompli-anee, the district court rejected Diners Club’s suggestion that the subpoena was moot because Diners Club had settled with Ms. Brown and Ms. Brown had requested withdrawal of the charge. The district court also rejected Diners Club’s suggestion that in requiring Diners Club to develop and compile information not then in existence, the subpoena was burdensome and overbroad. Finally, the district court rejected Diners Club’s contention that the EEOC had no authority to require Diners Club to compile information.

Pursuant to 28 U.S.C. § 1291, Diners Club seeks our review of the district court’s order of November 5, 1991. An order of a district court directing the production of records described in an administrative subpoena is a final judgment. EEOC v. University of New Mexico, 504 F.2d 1296, 1300 (10th Cir.1974).

On appeal, Diners Club raises three matters: (1) under its statutory powers EEOC cannot require Diners Club to interview its employees and review its files to prepare summaries that do not presently exist; (2) since Ms. Brown only alleged discrimination based on her race and sex, the EEOC cannot request documents and information relating to possible discrimination based on national origin; and (3) the EEOC’s subpoena requests were unduly burdensome. We shall consider these matters separately.

Diners Club’s initial argument is that although EEOC may request the production of relevant documents then in existence for examination and copying, it cannot compel the Diners Club to develop and compile summaries by examining personnel files or by interviewing employees. In thus arguing, Diners Club asserts that such is the inescapable teaching of Joslin Dry Goods Co. v. EEOC, 483 F.2d 178 (10th Cir.1973). That is not our reading of that case. While it is true that the district court in Joslin held that the EEOC could not compel an employer to “compile” infor[1039]*1039mation for use by the EEOC, Joslin Dry Goods Co. v. EEOC, 336 F.Supp. 941, 947 (D.Colo.1971), we did not so hold on appeal. Apparently the EEOC did not raise this particular matter in this court, and, in any event, we did not address it.

We deem Circle K Corp. v. EEOC, 501 F.2d 1052 (10th Cir.1974) to be instructive. In that case, the subpoena issued the employer by the EEOC sought the following:

a list of all applicants and present employees subjected to the polygraph examination, their racial-ethnic identity and whether they were accepted or rejected; documentation of the nature, standardization and validity of the polygraph test and a list of questions asked of each applicant; qualifications of the examiners who administered the tests; testimony under oath of all knowledgeable employees and officers; and all related matters.

501 F.2d at 1054.

Although the word “compile” was never used in our opinion in Circle K, certainly the subpoena required the employer to develop and compile information for EEOC’s use. In Circle K the district court had refused to enforce the subpoena, relying, in part, on the fact that compliance would entail compilation.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Martin J. Walsh v. Alight Solutions, LLC
44 F.4th 716 (Seventh Circuit, 2022)
EEOC v. Centura Health
Tenth Circuit, 2019
Equal Emp't Opportunity Comm'n v. Centura Health
933 F.3d 1203 (Tenth Circuit, 2019)
Wultz v. Bank of China, Ltd.
304 F.R.D. 38 (District of Columbia, 2014)
Equal Employment Opportunity Commission v. Bashas', Inc.
828 F. Supp. 2d 1056 (D. Arizona, 2011)
NLRB v. Midwest Heating and Air Conditioning
528 F. Supp. 2d 1172 (D. Kansas, 2007)
National Labor Relations Board v. Champagne Drywall, Inc.
502 F. Supp. 2d 179 (D. Massachusetts, 2007)
In Re GlaxoSmithKline Plc
699 N.W.2d 749 (Supreme Court of Minnesota, 2005)

Cite This Page — Counsel Stack

Bluebook (online)
985 F.2d 1036, 1993 U.S. App. LEXIS 1447, 60 Empl. Prac. Dec. (CCH) 42,047, 60 Fair Empl. Prac. Cas. (BNA) 1242, Counsel Stack Legal Research, https://law.counselstack.com/opinion/equal-employment-opportunity-commission-v-citicorp-diners-club-inc-ca10-1993.