EEOC v. SCHWAN'S HOME SERVICE, 09-84 (JRT/JSM).

• Citation: 692 F. Supp.2d 1070
• Decision Date: 08 March 2010
• Docket Number: No. 09-84 (JRT/JSM).,09-84 (JRT/JSM).
• Parties: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Applicant, v. SCHWAN'S HOME SERVICE, Respondent.
• Court: U.S. District Court — District of Minnesota

692 F. Supp.2d 1070

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Applicant, v. SCHWAN'S HOME SERVICE, Respondent.

No. 09-84 (JRT/JSM).

United States District Court, D. Minnesota.

March 8, 2010.

Jessica A. Palmer-Denig, Nicholas J. Pladson, U.S. Equal Employment Opportunity Commission, Minneapolis Area Office, Minneapolis, MN, for Applicant.

James B. Sherman, Kevin M. Mosher, Wessels Sherman Law Firm, Minneapolis, MN, for Respondent.

ORDER

JANIE S. MAYERON, United States Magistrate Judge.

The above matter came on before the undersigned on November 4, 2009 upon the Equal Employment Opportunity Commission's Application for Order to Show Cause Why a Subpoena Should Not be Enforced Docket No. 1.

Nicholas J. Pladson, Esq. appeared on behalf of the Equal Employment Opportunity Commission. James B. Sherman, Esq. appeared on behalf of Schwan's Home Service.

The Court, upon all of the files, records, proceedings herein now makes and enters the following Order.

IT IS HEREBY ORDERED that:

1. The Equal Employment Opportunity Commission's Application for Order to Show Cause Why a Subpoena Should Not be Enforced Docket No. 1 is GRANTED. The Court finds that Schwan's Home Service has not shown cause for its failure to comply with the subpoena.

2. Schwan's Home Service is directed to comply with Subpoena No. CHMNA10-012 in its entirety. Schwan's Home Service shall provide the information sought by the subpoena no later than March 29, 2010.

MEMORANDUM

I. FACTUAL BACKGROUND

On June 19, 2007, Kim Milliren ("Milliren") filed a Charge with the Equal Employment Opportunity Commission ("EEOC"), alleging that she had been subjected to discrimination by Schwan's Home Service ("Schwan's") on the basis of gender, sexual harassment and retaliation for having complained about harassment based on sex. Declaration of District Director John P. Rowe ("Rowe Decl."), ¶ 4(a) Docket No. 4; Rowe Decl., Ex. 1, p. 2 (copy of Charge of Discrimination 560-2007-01859). Specifically, Milliren set forth the following allegations in the Charge:

I was hired by the above referenced employer on or about November 16, 2007 to participate in the General Manager Development Program. During my employment, I was harassed, demoted, and informed that I would not graduate from the General Manager Development Program. On May 4, 2007, I was constructively discharged.

On or about March 27, 2007, Jeffery Moffis, Local General Manager, addressed me as "woman" two times. On or about March 28, 2007, Mr. Moffis laughed at me when I told him that I was not comfortable with him and customer service managers joking around about the offensive material that was emailed to local general managers by George VanOverbeke, District Manager. On or about April 5, 2007, I complained to Jim Pettry, facilitator, about the derogatory emails. On or about April 6, 2007, I complained to my direct supervisor, Sue Bary,¹ Vice President of Business Initiatives. On or about April 27, 2007, Mike Wells, Director of Training, told me that I was not demonstrating leadership skills, that I would not graduate, and that the best position they could offer me upon completion of the program was that of a customer service manager. On May 4, 2007, I resigned.

I believe that I have been discriminated against on the basis of my sex, female, and in retaliation for having complained about harassment based on sex. This is in violation of Title VII of the Civil Rights Act of 1964, as amended.

Rowe Decl., Ex. 1.

During the course of its investigation of Milliren's Charge, the EEOC learned the following: Schwan's is a home delivery frozen food company based in Minnesota, and uses a General Manager Development Program ("GMDP") to train management candidates for placement into Location General Manager ("LGM") positions at its facilities nationwide. EEOC's Mem., p. 2 Docket No. 2. In 2006, Milliren applied for an LGM position at Schwan's, and on November 16, 2006, Schwan's extended her a conditional offer of employment as an LGM and she began the GMDP on February 19, 2007. Id. When Milliren began the GMDP, she was sent to Schwan's Meridian, Idaho facility and was assigned to be mentored by Jeffery Moffis ("Moffis"), an LGM. Id.

According to the EEOC, Milliren identified several instances in support of her allegations. Milliren stated she was subjected to sexually derogatory comments and exposed to sexually explicit e-mails sent by a Schwan's vice president. Id., p. 3. Milliren claimed that she complained, but was rebuffed by several upper-level managers and directors. Id. Rather than investigating her complaints, Schwan's began criticizing Milliren's performance and denied her graduation from the GMDP. Id. Shortly thereafter, Milliren resigned. Id. Additionally, Milliren indicated that she had complained to Moffis that a calendar containing a woman in a bikini was in the interview room. Rowe Decl., Ex. 5 (December 19, 2007 Request for Information to Schwan's.).

The EEOC also learned that Milliren and Patty Bakala were the only female participants in the GMDP at the time. Id. Allegedly, Beary, Vice President of Business Initiatives and Milliren's direct supervisor, told Bakala to "act more like the boys" to improve her performance. Id. Milliren stated that during her initial interviews with Schwan's, Beary told her that if she successfully completed the GMDP, she would be the second female Location General Manager of approximately five hundred Location General Managers at Schwan's nationwide. Id. Milliren also claimed that Moffis identified one female applicant for a Customer Service Manager position and said she was not suitable for the position because she would be leaving three children at home. Id.

On July 2, 2007, the EEOC served Schwan's with a Notice of Charge of Discrimination, in which it requested a statement of Schwans' position and copies of any supporting documentation. Rowe Decl., ¶ 4(b); Rowe Decl., Ex. 1, p. 3 (copy of Notice of Charge of Discrimination). Schwan's replied on August 13, 2007. Rowe Decl., ¶ 4(c); Rowe Decl. Ex. 2 (letter of position).

In its response, Schwan's pointed out that Milliren's claim that she was hired on November 16, 2006 was misleading; while Milliren was offered employment in November of 2006, with a scheduled start date of January 1, 2007, she did not start until February 19, 2007, at her own request. Rowe Decl., Ex. 2, pp. 8-9. Furthermore, Milliren's performance in the GMDP was rated as below average by Jeremy Kirby, her assigned training mentor, for the week of March 5, 2007, which was before the earliest date Milliren claimed any harassment had occurred. Id., p. 9. After this rating, Beary, Milliren's direct supervisor, and Mike Wells, Director of Training, met with Milliren regarding her performance. Id., pp. 9-10. Milliren's mentors noted some improvement, but indicated that she lacked demonstrated leadership ability, and Jim Pettry, Senior Learning Solutions Specialist, met with Milliren regarding her poor classroom performance. Id., p. 10. Additionally, Beary and Wells met with Milliren on April 24, 2007 to inform her that she did not demonstrate the necessary leadership skills and was not ready to graduate from the GMDP program as scheduled. Id. Beary and Wells also informed Milliren they would continue to work with her for an additional three months to the end of the program. Id. Milliren contacted Beary on April 28, 2007 to inform her that she wanted to continue her training, but on April 29, 2007, called Beary and told her she had decided to voluntarily resign from the training program. Id.

During the same training period in which Milliren participated in the GMDP, Schwan's informed two male employees that they were not ready to graduate into an LGM position, while Patricia Bakala successfully graduated from the program on June 7, 2007. Id., p. 10.

Schwan's also acknowledged that on or about April 6, 2007, Milliren spoke with Beary and alleged that Moffis called her "woman," and provided Beary with copies of an email that Milliren found offensive. Id., pp. 10-11. According to Schwan's, Beary informed Milliren that she would speak with Moffis' supervisor, Greg Martino, and Moffis was promptly admonished. Id., p. 11. Milliren made no further complaints through the date of her resignation. Id.

On November 29, 2007, the EEOC served a Request for Information on Schwan's. Rowe Decl. ¶ 4(d); Rowe Decl., Ex. 3 (Request for Information to Schwan's). This request asked for the following information:

1. Provide a list of employees including name, gender and date of hire who attended every SHS General Manager Development Program from January 1, 2006 to the present.

2. Provide a list of employees who successfully completed the SHS General Manager Development Program from January 1, 2006 to the present. Include for each the person's name, gender, date of hire and date of attendance in the program.

3. Provide a list of employees who did not successfully complete the SHS General Manager Development Program from January 1, 2006 to the present. For each include name, gender, date of hire, date of attendance in the program, reason(s) why each person did not complete the program and if training was extended.

Rowe Decl., Ex. 3.

Schwan's responded on December 13, 2007 with what it believed to be pertinent information.² Rowe Decl., ¶ 4(e); Rowe Decl., Ex. 4 (Response to Request for Information); Schwan's Mem., p. 6. The EEOC then served another Request for Information on December 19, 2007, asking for the following information to be provided by January 21, 2008:

1. Provide a copy of the investigation conducted regarding the complaints made by the charging party during her employment. If an investigation was not conducted, explain why not.

2. Provide documentation of the action taken against Jeff Moffis and George VanOverbeke for conduct and emails. If no action was taken against either or both of these individuals, please explain why a decision was made not to

...