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Equal Employment Opportunity Commission v. Sterling Jewelers Inc

November 2, 2011

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, APPLICANT,
v.
STERLING JEWELERS INC., RESPONDENT.



The opinion of the court was delivered by: Jeremiah J. Mccarthy United States Magistrate Judge

REPORT AND RECOMMENDATION

INTRODUCTION

Petitioner Equal Employment Opportunity Commission ("EEOC") filed an application for order to show cause why its administrative subpoena duces tecum, #NY-A10-006, to Sterling Jewelers Inc. ("Sterling") should not be enforced [1].*fn1 This motion, being dispositive, has been referred to me by Hon. Richard J. Arcara for report and recommendation [19].*fn2 Oral argument was held on May 17, 2011. For the following reasons, I recommend that the subpoena be enforced in its entirety.

BACKGROUND

A. The Thielker Charge

On August 6, 2008, Diane Thielker, a former employee of Sterling (d/b/a Jared the Galleria of Jewelry), filed a charge of discrimination (the "Thielker Charge") alleging:

"I believe that I have been the victim of unlawful discrimination in employment because of my age . . . , in violation of the Age Discrimination in Employment Act of 1967 . . . and because of my sex, female, in violation of Title VII of the Civil Rights Act of 1964. . . because:

A. I applied for the timepiece manager position in January 2008 and I was rejected. Instead a 23 year old male, who did not even apply was hired.

B. I believe that when I told [the General Manager] that I believed this was age and sex discrimination, he retaliated by saying I did not meet standards and by terminating me." Thompson Declaration [3], Exs. 1 (Charge No. 523-2008-00926) and 4.

As part of its investigation into the Thielker Charge, on October 9, 2009 Ms. Thielker provided the EEOC with a copy of an August 3, 2007 Employee Counseling Report issued by Sterling to Ms. Thielker. The Counseling Report states that "[a]ny discussion regarding payroll need only to be made between said employee and mgr. Having inappropriate discussions only contribute to and fosters ill will amongst team members as well as being a direct violation of Sterlings [sic] code of conduct." Thompson Declaration [3], Ex. 10 (emphasis added). Included in the Counseling Report are Ms. Thielker's comments that "I feel I'm being discriminated against being a woman in this company where men always make more money than women". Id.

On January 20, 2010 the EEOC served the subpoena, which requests the following information from January 1, 2005 through present:

1. The Code of Conduct referred to in the Counseling Report "and any other policies prohibiting employees from discussing their pay";

2. "[A]ll disciplinary or warning notices, counseling reports, or similar documents reflecting Sterling's enforcement of its policy prohibiting employees from discussing their pay"; and

3. [D]ocuments that evidence or explain . . . all individuals disciplined under Sterling's policy prohibiting employees from discussing their ...


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