Equal Employment Opportunity Comm'n v. Schwan's Home Serv.

• Decision Date: 30 June 2010
• Docket Number: Civil No. 09-mc-84 (JRT/JSM).
• Citation: 707 F.Supp.2d 980
• Parties: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Applicant,v.SCHWAN'S HOME SERVICE, Respondent.
• Court: U.S. District Court — District of Minnesota

707 F.Supp.2d 980

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

Civil No. 09-mc-84 (JRT/JSM).

United States District Court D. Minnesota.

June 30, 2010.

COPYRIGHT MATERIAL OMITTED

Nicholas J. Pladson, Equal Employment Opportunity Commission, Minneapolis, MN, for applicant.

James B. Sherman, Wessels Sherman Joerg Liszka Laverty Seneczko P.C., Minneapolis, MN, for respondent.

MEMORANDUM OPINION AND ORDER

JOHN R. TUNHEIM, District Judge.

This matter is before the Court on an Application for Order to Show Cause Why a Subpoena Should Not Be Enforced (Docket No. 1) filed by the Equal Opportunity Employment Commission (“EEOC”), an order issued by United States Magistrate Judge Janie S. Mayeron granting the EEOC's application (Docket No. 15), and the objections of Schwan's Home Service (“Schwan's”) to the order (Docket No. 18). For the reasons set forth below, the Court overrules the objections, adopts the Magistrate Judge's order, and grants the application.

BACKGROUND

Schwan's “is the largest branded home delivery frozen food company in the United States.” (Sherman letter at 3, Rowe Decl. Ex. 2, Docket No. 4.) Schwan's hired Kim Milliren on or about November 16, 2006. ( See Charge at 1, Rowe Decl. Ex. 1, Docket No. 4.) Schwan's hired Milliren for the position of Location General Manager (“General Manager,” or “LGM”), contingent upon Milliren's successful completion of the General Manager Development Program (“GMDP”). ( Id.; Sherman Letter at 3-4, Rowe Decl. Ex. 2, Docket No. 4.) According to Schwan's, “[t]he GMDP is a 16 week training program that prepares candidates to become” LGMs. (Sherman Letter at 2 n. 2, Rowe Decl. Ex. 2, Docket No. 4.) An LGM “is responsible for managing all aspects of a depot, a stand-alone profit center.” ( Id.) Each LGM supervises up to twenty-five employees, including a Route Sales Supervisor, a facility supervisor, Material Handlers, and Customer Service Managers. ( Id.) Customer Service Managers sell Schwan's “frozen food products to customers in their home.” ( Id.)

Milliren began working at Schwan's as a trainee in the GMDP on or about February 19, 2007. ( Id. at 3.) On or about March 27, 2007, Jeffery Moffis, an LGM, addressed Milliren as “woman” twice. (Charge at 1, Rowe Decl. Ex. 1, Docket No. 4.) At some point prior to March 28, 2007, George Van Overbecke, a District Manager, emailed some offensive material to LGMs. ( Id.) On or about March 28, 2007, when Milliren told Moffis that she was not comfortable with Moffis and other LGMs joking about the offensive material Moffis laughed at Milliren. ( Id.) On or about April 5, 2007, Milliren complained about the emails-first to Jim Pettry, a Senior Learning Solutions Specialist, and then to her direct supervisor, Sue Beary, who is a Vice President for Business Initiatives. ( Id.; Sherman Letter at 4-5, Rowe Decl. Ex. 2, Docket No. 4.)

On or about April 27, 2007, Mike Wells, Director of Training, told Milliren that she was not demonstrating leadership skills, that she would not graduate from the GMDP, and that the best position Schwan's could offer Milliren upon completion of the GMDP was a job as Customer Service Manager. (Charge at 1, Rowe Decl. Ex. 1, Docket No. 4.) On May 4, 2007, Milliren resigned. ( Id.)

On June 19, 2007, Milliren filed a charge of discrimination with the EEOC. ( Id.) The charge alleges that Schwan's discriminated against Milliren on the basis of her “sex, female, and in retaliation for having complained about harassment based on sex.” ( Id.)

On July 3, 2007, the EEOC served Schwan's with a Notice of Charge of Discrimination. (Rowe Decl. ¶ 4(b), Docket No. 4.) On August 10, 2007, counsel for Schwan's provided the EEOC with a letter of position in response to the Charge. (Sherman Letter, Rowe Decl. Ex. 2, Docket No. 4.) In that letter, Schwan's stated:

During this same training period [Schwan's] informed two other male trainees from other training classes that they would not graduate from the training program. One male, ... an internal trainee, continued his training in the field. Another male ... continued employment and was placed as an LGM three months later. Additionally, three other females ... each successfully graduated from the same GMDP program [and were placed as LGMs in 2005, 2006, and 2007].

( Id. at 5.)

On November 29, 2007, the EEOC served Schwan's with a request for information, and Schwan's responded on December 13, 2007. (Rowe Decl. ¶ 4(d)-(e), Docket No. 4.) The EEOC requested a list of employees who attended every GMDP from January 1, 2006, to the present, broken down to show the name, gender, and date of hire of each employee who successfully completed the GMDP and of each employee who did not successfully complete the GMDP during that period. (Czarnecki Letter at 2, Rowe Decl. Ex. 3, Docket No. 4.) In response, Schwan's provided general information as to approximately sixty employees who participated in the GMDP during 2007, and provided the name and gender of each of the eight people who failed to complete the GMDP during that year. (Sherman Letter, Rowe Decl. Ex. 4, Docket No. 4.) Schwan's stated that Milliren was the only female who failed to complete the GMDP during 2007, and added that another female “began in the same GMDP class as Milliren, on February 19, 2007, and successfully completed the course.” ( Id. at 2.) Schwan's did not provide information as to the total number of females who participated in the GMDP in 2006 or 2007. ( Id. at 1-2.)

On December 19, 2007, the EEOC requested additional information. The EEOC requested a list of all persons who successfully completed the GMDP from January 1, 2006, to the present, including the name, sex, date of hire, date of completion, current employment status, and contact information for each participant. (Czarnecki Letter at 2, Rowe Decl. Ex. 5, Docket No. 4.) The EEOC requested similar information for all persons for whom Schwan's extended the term of GMDP training during that period, and the reason for the extension. ( Id. at 3.) The EEOC requested the name, gender, and date of hire of each General Manager currently employed by Schwan's. ( Id. at 2.) The EEOC also requested that Schwan's “[e]xplain how persons are selected for the [GMDP] and provide copies of all documents regarding the selection process.” ( Id.) The EEOC requested information specific to Milliren, including her personnel file, contact information for her mentors, all feedback regarding her performance, and the investigation that Schwan's conducted regarding Milliren's complaints. ( Id. at 2-3.) The EEOC also requested information about two additional allegations:

9. Charging party alleges that during her training in Boise, ID, a female applicant was denied a position by Jeff Moffis because she had children. State whether Mr. Moffis and the charging party interviewed candidates for a Customer Service Manager position and provide documentation regarding those interviews.

10. Charging party states that she complained to Jeff Moffis that a calendar containing a woman in a bikini was in the interview room. State whether this occurred and Mr. Moffis' response.

( Id. at 3.)

After Schwan's failed to respond to this request, the EEOC issued a subpoena duces tecum directing Schwan's to produce the requested information on or before May 20, 2008. (Subpoena No. CHMN-A8-058, Rowe Decl. Ex. 7, Docket No. 4.) On May 14, 2008, Schwan's responded by submitting to the EEOC a petition to revoke or modify the subpoena. (Sherman Letter, Rowe Decl. Ex. 8, Docket No. 4.) Schwan's stated that it objected to and did not intend to comply with certain requests for information, including the name, gender, and date of hire of each General Manager; documents relating to the process of selecting trainees for the GMDP; information about all persons who successfully completed the GMDP from 2006 to the present; information about extended training; information about individuals Jeff Moffis interviewed in Boise, Idaho for the position of Customer Service Manager; and information about Milliren's mentors. ( Id.)

On July 28, 2008, the EEOC modified two of the requests, rejected the petition, and ordered Schwan's to comply with the subpoena within ten days. (Rowe Decl. Ex. 9, Docket No. 4.) On August 12, 2008, Schwan's provided some documents in response to the subpoena, but restated its objections to other requests. (Sherman Letter, Rowe Decl. Ex. 10.)

On February 4, 2009, Milliren filed an Amended Charge with the EEOC. (Am. Charge, Rowe Decl. Ex. 11, Docket No. 4.) In the Amended Charge, Milliren added the following statement: “It is also my belief that the Respondent discriminates against females, as a class, in regard to its General Manager Development Program in violation of Title VII of the Civil Rights Act of 1964, as amended.” ( Id.) On the same day, the EEOC served Schwan's with a Notice of the Amended Charge of Discrimination. (Rowe Decl. ¶ 4(n), Docket No. 4.) On February 18, 2009, in response to the Amended Charge, Schwan's argued that the amendment was untimely. (Sherman Letter, Rowe Decl. Ex. 12, Docket No. 4.)

On February 20, 2009, the EEOC served Schwan's with Subpoena No. CHMN-A10-012 (the “February 2009 Subpoena”), the subpoena duces tecum that is the subject of the instant application for order to show cause. (Subpoena No. CHMN-A10-012, Rowe Decl. Ex. 13, Docket No. 4.) The February 2009 Subpoena directs Schwan's to provide certain documents to the EEOC on or before March 9, 2009:

1. Provide a list of General Managers currently employed with the respondent. Include for each: the employee's name, gender and date of hire.

[2.] Provide all documents related to how persons are selected for the GM Development Program[.]

3. Provide a list of all persons who successfully completed the GM Development program from 1/1/06 to the present by name, gender, date of hire, date of completion of program, current employment status, and last known home address and

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