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Equal Employment Opportunity Commission v. Union Pacific Railroad Co.

United States Court of Appeals, Seventh Circuit

August 15, 2017

Equal Employment Opportunity Commission, Petitioner-Appellee,
Union Pacific Railroad Company, Respondent-Appellant.

          Argued February 6, 2017

         Appeal from the United States District Court for the Eastern District of Wisconsin. No. 2:14-mc-00052-LA - Lynn Adelman, Judge.

          Before Rovner and Williams, Circuit Judges, and Conley, District Judge [*]

          Conley, District Judge.

         Union Pacific Railroad challenges the legal authority of the Equal Employment Opportunity Commission to continue an enforcement action after issuing a right to sue letter and subsequent resolution of the underlying charges of discrimination in a private lawsuit. The EEOC petitioned the district court to enforce its subpoena for Union Pacific's employment records related to these charges. After denying Union Pacific's motion to dismiss for lack of authority to maintain the investigation under Title VII and the EEOC's own regulations, the district court granted the petition, prompting this appeal. While an issue of first impression in this circuit, similar challenges have created a split in authority between the Fifth Circuit in EEOC v. Hearst, 103 F.3d 462 (5th Cir. 1997), and more recently the Ninth Circuit in EEOC v. Federal Express Corporation, 558 F.3d 842 (9th Cir. 2009). Both the United States Supreme Court and this court have repeatedly recognized the EEOC's broad role in promoting the public interest by preventing employment discrimination under Title VII, including its independent authority to investigate charges of discrimination, especially at a company-wide level. Accordingly, we agree with the district court that neither the issuance of a right-to-sue letter nor the entry of judgment in a lawsuit brought by the individuals who originally filed the charges against Union Pacific bars the EEOC from continuing its own investigation.

         I. Background

         On January 3, 2011, Frank Burks and Cornelius L. Jones, Jr., began working at Union Pacific as "Signal Helpers, " an entry-level job that involves laying wires and cables, digging trenches, changing signal lines, and climbing poles. Burks and Jones were the only African-American employees in their orientation group. After a 90-day probationary period, both became eligible for possible promotion to an "Assistant Signal Person" position. In June 2011, Jones applied to take the Skilled Craft Battery Test ("SCBT" or "the test"), a requirement to seek the promotion. After receiving no response, Jones reapplied in September 2011. Burks also applied to take the test in October 2011. Neither, however, were ever provided the opportunity to do so.

         Instead, on October 10, 2011, Union Pacific eliminated the Signal Helper position in the zones where Burks and Jones worked, and both were terminated. That same month, Burks filed a charge with the EEOC, which states in pertinent part: "I have been denied the opportunity to take a test for the Assistant Signalman position. On or about October 10, 2011, I was discharged again.[1] I believe that I have been discriminated because of my race, Black, and in retaliation for having engaged in protected activity." Jones filed a similar charge the following month.

         After receiving notification from the EEOC that charges had been filed, Union Pacific responded with a position statement, attaching tables that listed Signal Helpers working in the same district as Burks and Jones and the results of those employees' applications for promotion. In particular, a table provided by Union Pacific showed that of the eighteen Signal Helper applicants, eleven were white, six were black, and one was Hispanic. Of the eleven white applicants, ten passed the test and were promoted, while one failed and was denied the promotion. The one Hispanic applicant passed the test and was promoted. Of the six black applicants, Burks and Jones are the only applicants who applied but were not administered the tests. Of the other four applicants, none were promoted, although the table does not state the reason.

         In March 2012, the EEOC sent Union Pacific its first request for information seeking, among other items, a copy of the test used by Union Pacific to promote Signal Helpers to the Assistant Signalman position and company-wide information about persons who sought the Assistant Signalman position during the relevant period. After Union Pacific refused that request, the EEOC issued its first subpoena in May 2012 and brought suit to enforce it in March 2013. EEOC v. Union Pacific R.R. Co., Misc. No. 13-mc-22 (E.D. Wis.). The parties then reached a settlement in which: (1) Union Pacific agreed to provide identification information, including test results, for all individuals who took the test for the Assistant Signalman position during the relevant period of time; and (2) the EEOC dismissed its enforcement action. However, the EEOC contends that Union Pacific never provided this promised company-wide information.

         In July 2012, the EEOC issued a right-to-sue letter to both Jones and Burks on their charges. See 42 U.S.C. § 2000e-5(f)(1) (requiring the EEOC to provide a notice of right-to-sue to the charging individual within 180 days of the filing of the charge). Jones and Burks then filed a joint complaint, asserting discrimination claims in the United States District Court for the Northern District of Illinois. Burks v. Union Pacific R.R. Co., No. 2012 C 8164 (N.D. 111. Oct. 11, 2012).

         In July 2014, the district court granted Union Pacific's motion for summary judgment in the Jones and Burks' lawsuit, finding insufficient evidence to support their claims of hostile work environment, retaliation for filing prior EEOC complaints, and racial harassment. Burks v. Union Vac. R.R. Co., No. 12 C 8164, 2014 WL 3056529 (N.D. 111. July 7, 2014); see also App. 017-034. Consistent with that finding, the district court dismissed Jones and Burks' claims with prejudice, and this court later affirmed. Burks v. Union Vac. R.R. Co., 793 F.3d 694 (7th Cir. 2015).

         While Jones and Burks' action was still proceeding in district court, the EEOC issued Union Pacific a second request for information in January 2014, seeking information about Union Pacific's electronic storage systems, additional testing and computer information, and details about Signal Helpers across the company who were similarly situated to Burks and Jones. Union Pacific again refused, and the EEOC served a second subpoena in May 2014, which is the focus of this appeal.

         After Union Pacific administratively petitioned to revoke or modify the subpoena, the EEOC brought an enforcement action in September 2014. The district court denied Union Pacific's motion to dismiss, rejecting its arguments that the EEOC lost its investigatory authority either (1) after the issuance of a right to sue notice to Jones and Burks or (2) when the district court granted judgment in favor of Union Pacific. The district court also rejected Union Pacific's ...

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