EEOC-Initiated Litigation - 2022 Edition

60 | EEOC-Initiated Litigation: 2022 Edition © 2022 Seyfarth Shaw LLP charge with the EEOC alleging racial discrimination during his employment. Defendant argued that the subpoena was in reality an attempt to continue investigating a previous request for a subpoena following a similar charge of discrimination, which had been denied. Defendant further asserted that the subpoena was overly burdensome, would require review of the files of over 2,700 employees and would take over 2,000 hours of work. The Court ordered Defendant to comply with subpoena, but provided the parties three weeks in order to reach an agreement regarding the scope of requested information. The Court determined that the EEOC's authority pursuant to the ADEA contains no charge-based relevancy requirement and that the EEOC was able to conduct investigations into potential ADEA violations at its discretion. Id . at *6-7. The Court found that the EEOC was expanding its charges after conducting an initial, reasonable investigation, and that there was an overlap between the allegations underlying both charges appeared to stem from the fact that the EEOC learned of the potential systemic issue from the first individual charge, and not an improper purpose to fish for information. Id . at *9-10. The Court ruled that the EEOC’s request to identity Defendant’s employees who had been provided a release containing a provision requiring them to waive their right to file an agency charge and to agree not to cooperate with any proceeding against Defendant was more than "speculatively" related to the EEOC's authority to investigate potential ADEA violations. Id . at *14. For these reasons, the Court ordered Defendant to respond to the EEOC’s subpoena. C. Dispositive Motions In EEOC Pattern Or Practice And Single Plaintiff Cases 1. ADA Cases EEOC v. Cash Depot , 20-CV-03343, 2021 U.S. Dist. LEXIS 185146 (S.D. Tex. July 21, 2021). The EEOC filed an action on behalf of the charging party, Barney Galloway, alleging that Defendant discriminated against him on the basis of his disability in violation of the Americans With Disabilities Act (“ADA”). After discovery, Defendant filed a motion for summary judgment, which the Court granted. Galloway worked for Defendant as a field service technician for its automated teller machines. During his employment, he suffered a stroke in his home. Galloway subsequently provided Defendant with a doctor’s note restricting his driving ability. Thereafter, he requested a leave of absence. Upon his return to work, Galloway provided an updated doctor's note approving his return, but imposing a 25-pound lifting restriction. Defendant terminated Galloway’s employment on the basis that it could not make the 25-lifting restriction accommodation. The EEOC thereafter filed an action alleging discrimination and failure to accommodate. The Court noted that it was undisputed that Galloway was a qualified individual with a disability under the ADA and that Defendant terminated his employment. However, the Court looked to whether or not Galloway was able to perform the essential functions of his job with minor accommodations for the lifting restriction. Id . at *2. The EEOC argued that there were three possible reasonable accommodations, including: (i) splitting the coin removals into multiple bags, (ii) scheduling other technicians to help with heavy jobs, and (iii) giving Galloway more unpaid leave. As to the first argument, the Court found no evidence to suggest that splitting removals was a reasonable accommodation, as it could lead to theft or other dangers. The Court opined that Defendant was not required under the law to hire others to help Galloway complete his job, and that paying someone else to assist in work Defendant was already paying for was not a reasonable accommodation. Finally, the Court determined that Defendant did not have to discuss a reasonable accommodation with Galloway if one did not exist. For these reasons, the Court granted Defendant’s motion for summary judgment as to the EEOC’s claims. EEOC v. Wal-Mart Stores, Texas, LLC , No. 18-cv-3407, 2021 WL 5165694 (S.D. Tex. Nov. 5, 2021) . The EEOC filed an action on behalf of the charging party, Jesse Landry ("Landry"), alleging discriminatory failure to hire on the basis of her disability (congenital amputee missing right forearm and hand) in violation of the Americans With Disabilities Act ("ADA"). Following discovery, Defendant filed a motion for summary judgment, which the Court denied. The EEOC alleged that Landry interviewed for myriad of open positions, during which the interviewer stated that she would be unable to perform the required job duties, including moving and loading boxes, due to her disability. Defendant argued that summary judgment was warranted because the EEOC has failed to establish disability discrimination by direct or circumstantial evidence; because the legitimate, non-discriminatory reason Landry was not hired was not pretextual and Landry's alleged disability was not a motivating factor in Defendant’s failure to hire her; and because there was no