EEOC-Initiated Litigation - 2022 Edition

58 | EEOC-Initiated Litigation: 2022 Edition © 2022 Seyfarth Shaw LLP therefore violated the Americans With Disabilities Act (“ADA”) and the Age Discrimination in Employment Act (“ADEA”). During discovery, Defendant noticed the depositions of nine individuals who were subjected to its Late Career Practitioner Policy, each of whom was a current employee. Defendant informed the EEOC that, during the depositions, it would ask those individuals if they “were later diagnosed with a cognitive condition, details of those conditions, and their impact.” Id. at 1. The EEOC filed a motion for a protective order barring Defendant from seeking discovery into any medical diagnosis of individuals outside of Defendant’s own testing process. The Court granted the motion for a protective order. It found that with respect to any diagnosis of a cognitive condition received by any individual outside of Defendant’s own testing process, including the details of any such condition and its impact, that information was protected by the psychotherapist privilege and was therefore shielded from discovery. The Court reasoned that any inquiry into this subject would be an invasion of privacy, and this harm was not outweighed by any probative value of the information sought. For these reasons, the Court granted the EEOC’s motion for a protective order. EEOC v. Heart of CarDon, LLC , No. 20-CV-00998, 2021 WL 5111917 (S.D. Ind. Oct. 29, 2021). The EEOC filed an action on behalf of the charging party, Marsha Castellano, a Certified Nurse Aide, alleging that she lost function of her left arm after she was injured while working and Defendant refused to provide her a reasonable accommodation in violation of the Americans With Disabilities Act (“ADA”). During discovery, the EEOC filed a motion to compel production of documents and information in response to an interrogatory request seeking Defendant’s most recent annual report, appraisal, or other business valuation, federal and state tax returns, financial forecasts, financial statements, resale valuations, statements of fair market value, and statements of revenues and liabilities. Id . at *4-5. Defendant objected on the grounds that the documents were not relevant to the EEOC’s claims or Defendant's defenses. The EEOC contended that the financial information sought was within Defendant's possession and control, relevant to the EEOC’s claim for punitive damages, and proportional to the needs of the case. Id . at *6-7. The Court determined that although Defendant attempted to argue that the information sought was not in its possession or control, the corporate structure entities in question had such a close relationship that they were almost indistinguishable and were sufficiently related. Accordingly, the Court was satisfied that the discovery sought was within Defendant's possession and control. The Court further agreed with the EEOC that the information sought was "relevant to punitive damages because those records will show the wealth of the CarDon enterprise, which is one measure the jury can use to determine the amount of punitive damages appropriate to punish Defendant for violating the ADA and to deter future violations." Id . at *12. Defendant contended that the scope of the interrogatory was not proportional because Defendant had “already admitted . . . that it has the ability to pay a judgment up to $500,000" and punitive damages will be capped at $300,000. Id . at *14. The Court opined that the Seventh Circuit had expressly rejected this argument in other cases. The Court explained that Defendant's admission that it would be able to pay a judgment up to $500,000 did not provide any measure to the jury as to how much an appropriate punishment would be should the jury find an award of punitive damages appropriate. Id . at *15. Accordingly, the Court granted the EEOC’s motion to compel. The Court also awarded the EEOC attorneys’ fees in connection with bringing the motion to compel as the prevailing party. EEOC v. Kelly Services , 19-MC-01581, 2021 U.S. Dist. LEXIS 14773 (N.D. Ala. Jan. 11, 2021). The EEOC filed an motion to compel enforcement of an administrative subpoena to Defendant. In response, Defendant argued that the scope of the subpoena was overbroad. The Court granted the motion in part and denied it in part. The Court explained that the EEOC has authority to conduct an investigation, and therefore to issue an administrative subpoena. However, the Court found that some of the information requested by the EEOC could not be utilized to advance the investigation. The Court therefore ordered the EEOC to modify its subpoena to request information for individuals who applied for employment, had an active application, or were employed as a result of an employment referral in a craft worker occupation from January 1, 2014 to December 31, 2017 in Defendant’s Huntsville, Alabama location. For such individuals, the Court directed Defendant to provide the applicant’s personal information, such as name, last known street address, and applicant ID number, occupations in which the applicant was seeking work, job titles applicable to applicant, skills or skill groups associated with the applicant and dates when these titles/groups were created and/or modified, occupational or competency tests taken, results of test, and eligibility rating for placement, reason for background check and results, employer requirements for referral, notes regarding applicant placement preferences, notes of staff evaluations of individual, referral