Equal Emp't Opportunity Comm'n v. Ferrellgas, L.P.

• Docket Number: 23-1719
• Decision Date: 26 March 2024
• Citation: Equal Emp't Opportunity Comm'n v. Ferrellgas, L.P., 97 F.4th 338 (6th Cir. 2024)
• Parties: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Applicant-Appellee, v. FERRELLGAS, L.P., Respondent-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

97 F.4th 338

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Applicant-Appellee, v. FERRELLGAS, L.P., Respondent-Appellant.

No. 23-1719

United States Court of Appeals, Sixth Circuit

Decided and Filed: March 26, 2024

Appeal from the United States District Court for the Eastern District of Michigan at Detroit.No. 2:23-mc-50094—Stephen J. Murphy III, District Judge.

ON BRIEF: Brent N. Coverdale, SCHARNHORST AST KENNARD GRIFFIN, PC, Kansas City, Missouri, John T. Below, BODMAN PLC, Troy, Michigan, for Appellant.Steven Winkelman, EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Washington, DC., for Appellee.

Before: BOGGS, MOORE, and GIBBONS, Circuit Judges.

OPINION

JULIA SMITH GIBBONS, Circuit Judge.

Ferrellgas, L.P., appeals the district court's order enforcing an Equal Employment Opportunity Commission subpoena.Because the district court did not abuse its discretion in enforcing the subpoena, we affirm.

I.

Ferrellgas¹ is a retail distributor of propane gas and related equipment.As relevant here, Ferrellgas maintains the following corporate structure:

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In January 2020, April Wells filed a charge of discrimination with the Equal Employment Opportunity Commission, alleging that Ferrellgas hired her for a lesser position than her qualifications warranted, paid her less than her male coworkers, and fired her from her job as a driver because of her sex.Wells later amended her charge to allege that Ferrellgas also discriminated against her because she is Black.

In accordance with its responsibilities under Title VII of the Civil Rights Act of 1964, the EEOC sent Ferrellgas two requests for information("RFIs").See42 U.S.C. § 2000e-5(b).Although Wells named Ferrellgas Partners, L.P., as her employer in her discrimination charge, the EEOC addressed its RFIs to Ferrellgas, Inc.Nevertheless, Ferrellgas responded to both RFIs — first through a human resources employee and then through outside counsel.In both replies, Ferrellgas provided some responsive documents but maintained objections to the scope of the EEOC's requests.Neither response objected to the EEOC's use of "Ferrellgas, Inc.," nor gave any indication that Ferrellgas, Inc., lacked dominion over responsive documents or information.And neither the responding employee nor Ferrellgas's outside counsel indicated which of the three Ferrellgas entities employed them.²In response to the second RFI, Ferrellgas's outside counsel requested that "all further communications regarding this matter . . . be directed to [his] firm."DE 7-10, Ferrellgas Response toRFI No. 2, Page ID 126.

The EEOC's investigation continued over the next twenty-one months.In December 2021, the EEOC served Ferrellgas with a subpoena by mailing it to Ferrellgas's outside counsel.Ferrellgas responded, leveling several objections to the subpoena's breadth and burdensomeness but at the same time providing some responsive information.Ferrellgas did not object to the EEOC's manner of service.

A few months later, the EEOC sent Ferrellgas a third RFI, transmitting the request to the same human resources employee who had responded to its initial RFI.This time, Ferrellgas refused to provide any of the requested documentation.And in its response, Ferrellgas again requested that all communications from the EEOC be directed to its outside counsel.

In October 2022, the EEOC served Ferrellgas with a second subpoena — addressed to "Ferrellgas, Inc." — by mailing the subpoena to Ferrellgas's outside counsel and uploading the subpoena to the EEOC's online portal.³Two weeks later, Ferrellgas responded through outside counsel, refusing to provide any of the requested information on grounds of overbreadth and undue burden.Ferrellgas's outside counsel also observed that the subpoena was unsigned and indicated that Ferrellgas was "not aware of any . . . certified mailing."DE 2-4, Ferrellgas Response to Oct. 2022 Subpoena, Page ID 33.

The following month, the EEOC re-issued its October subpoena.A near replica of the original subpoena, the Commission's November subpoena differed only in that it was dated November 2, 2022, and signed by Deanna Wooten, the Enforcement Manager for the EEOC's Detroit office, on behalf of the EEOC's Detroit District Director.The response date specified in the November subpoena remained October 25, 2022, and the EEOC again served the subpoena by uploading it to the EEOC's online portal and sending a copy by certified mail to Ferrellgas's outside counsel.⁴

Consistent with its response to the October subpoena, Ferrellgas refused to provide any responsive documents.Without formally petitioning the Commission for the subpoena's revocation or modification, Ferrellgas's outside counsel referred the EEOC to Ferrellgas's earlier response, indicating that the company still "object[ed] to the [Subpoena's] current scope."DE 2-3, Coverdale Email to EEOC, Page ID 31.

In January 2023, the EEOC applied for an order to show cause why the November 2022 subpoena should not be enforced under Section 710 of Title VII,42 U.S.C. § 2000e-9.The district court granted the application and directed Ferrellgas to respond.Ferrellgas responded, and roughly four-and-a-half months later, the district court ordered that the subpoena be enforced.Ferrellgas timely appealed.

II.

We review the district court's decision to enforce the EEOC's subpoena for abuse of discretion.McLane Co., Inc. v. EEOC, 581 U.S. 72, 85, 137 S.Ct. 1159, 197 L.Ed.2d 500(2017);EEOC v. Roadway Express, Inc. (Roadway Express II), 261 F.3d 634, 638(6th Cir.2001).Under this highly deferential standard, we disturb the district court's judgment only if it "relie[d] on clearly erroneous findings of fact, applie[d] the wrong legal standard, misapplie[d] the correct legal standard when reaching a conclusion, or ma[de] a clear error of judgment."Cole v. City of Memphis, 839 F.3d 530, 540(6th Cir.2016)(citation omitted).To warrant reversal, the district court's mistake must "affect[ ] substantial rights and amount[ ] to more than harmless error,"Himes v. United States, 645 F.3d 771, 782(6th Cir.2011)(quotingDortch v. Fowler, 588 F.3d 396, 400(6th Cir.2009)).

III.

A.

Title VII bars employers from discharging or refusing to hire employees on the basis of "race, color, religion, sex, or national origin."42 U.S.C. § 2000e-2(a).When an individual files a sworn charge of employment discrimination with the EEOC, the Act"obligates the Commission to investigate [the charge] to determine whether there is 'reasonable cause to believe that the charge is true.' "Univ. of Pa. v. EEOC, 493 U.S. 182, 190, 110 S.Ct. 577, 107 L.Ed.2d 571(1990)(quoting42 U.S.C. § 2000e-5(b)).In furtherance of this investigatory mandate, Title VII arms the Commission with "a broad right of access to relevant evidence,"id. at 191, 110 S.Ct. 577, instructing that "the Commission . . . shall . . . have access to . . . any evidence of any person being investigated or proceeded against that relates to unlawful employment practices covered by"Title VII and "is relevant to the charge under investigation,"42 U.S.C. § 2000e-8(a).

The EEOC's right of informational access includes the authority to issue subpoenas duces tecum seeking relevant documents and information.42 U.S.C. § 2000e-9(incorporating 29 U.S.C. § 161).An employer may petition the EEOC to revoke such a subpoena, "but if the EEOC rejects the petition and the employer still refuses to obey . . . , the EEOC may ask a district court to issue an order enforcing it."McLane, 581 U.S. at 76, 137 S.Ct. 1159(cleaned up)(quoting29 U.S.C. § 161(2)).

"A subpoena enforcement proceeding is a summary process designed to decide expeditiously whether a subpoena should be enforced."EEOC v. United Parcel Serv., Inc., 859 F.3d 375, 378(6th Cir.2017)(quotingEEOC v. Roadway Express, Inc. (Roadway Express I), 750 F.2d 40, 42(6th Cir.1984)).The reviewing court's limited role is not "to determine 'whether the charge of discrimination is 'well founded' or 'verifiable,' ' " but instead to "satisfy itself that the charge is valid and that the material requested is 'relevant' to the charge."Univ. of Pa., 493 U.S. at 191, 110 S.Ct. 577(quotingEEOC v. Shell Oil, 466 U.S. 54, 72 n.26, 104 S.Ct. 1621, 80 L.Ed.2d 41(1984)).If so, the court"should enforce the subpoena unless the employer establishes that the subpoena is 'too indefinite,' has been issued for an 'illegitimate purpose,' or is unduly burdensome."McLane, 581 U.S. at 77, 137 S.Ct. 1159(quotingShell Oil, 466 U.S. at 72 n.26, 104 S.Ct. 1621);see alsoEEOC v. Ford Motor Credit Co., 26 F.3d 44, 45(6th Cir.1994)("An EEOC administrative subpoena may be judicially enforced only if it: (1) seeks relevant information; (2) is not unduly burdensome; and (3) is within the statutory authority of the EEOC.").

B.

The district court found that Wells's charge is facially valid, and Ferrellgas does not dispute that finding.Instead, Ferrellgas challenges the Commission's subpoena on four other grounds — two procedural and two substantive.None of its objections prove meritorious.

1.

Ferrellgas first contends that the subpoena is unenforceable because it was improperly served.Title VII authorizes the Commission to serve subpoenas in the same manner as the National Labor Relations Board serves process under the National Labor Relations Act. 42 U.S.C. § 2000e-9(incorporating 29 U.S.C. § 161).That statute provides:

Complaints, orders, and other process and papers of the Board, its member, agent, or agency, may be served either personally or by registered or certified mail or by telegraph or by leaving a copy thereof at the principal office or place of business of the person required to be served.

29. U.S.C. § 161(4).Ferrellgas argues that, under § 161(4), the EEOC cannot serve a subpoena by posting it to the Commission's online portal or by mailing it to counsel.Instead, Ferrellgas argues, the Commission was required to either mail the...