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Equal Employment Opportunity Commission v. Sterling Jewelers Inc.

United States District Court, Second Circuit

September 23, 2013

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Applicant,
v.
STERLING JEWELERS INC., Respondent.

REPORT AND RECOMMENDATION

JEREMIAH J. McCARTHY, Magistrate Judge.

Before me is the second application of the Equal Employment Opportunity Commission ("EEOC") for an order to show cause why its administrative subpoena duces tecum to Sterling Jewelers Inc. ("Sterling") should not be enforced [30].[2] Whereas its first application sought enforcement of subpoena duces tecum #NY-A10-006 ("2010 Subpoena") [1], this application seeks enforcement of subpoena duces tecum #NY-A12-009 ("2012 Subpoena"). Both subpoenas have been issued by the EEOC in connection with its investigation of a charge of discrimination filed on August 6, 2008 by Diane Thielker, a former employee of Sterling (d/b/a Jared the Galleria of Jewelry) (the "Thielker Charge").

This application, being dispositive, has been referred to me by Hon. Richard J. Arcara for a Report and Recommendation [19].[3] Oral argument was held on February 6, 2013 [39]. For the following reasons, I recommend that the application be granted in part and denied in part.

BACKGROUND

A. The Thielker Charge and Investigation

The Thielker Charge alleges:

"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." [30-3], pp. 27-28 of 47.

As part of its investigation into the Thielker Charge, on October 9, 2009 Thielker provided the EEOC with a copy of an August 3, 2007 Employee Counseling Report issued by Sterling to Thielker. The Counseling Report states that "[a]ny discussions regarding payroll need only to be made between said employee 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. " [3], p. 55 of 102 (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. at p. 56 of 102.

B. The 2010 Subpoena

On January 20, 2010 the EEOC served Sterling with the 2010 Subpoena, requesting 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 pay". [3], p. 65 of 102.

The EEOC initially commenced this action by the EEOC on April 11, 2011, seeking an order compelling Sterling to show cause why the 2010 Subpoena should not be enforced. By Report and Recommendation dated November 2, 2011, I recommended that the 2010 Subpoena be enforced in its entirety. Sterling then moved for clarification of my Report and Recommendation, and at a November 28, 2011 conference to address that motion, "the parties agree[d] that Sterling [would] respond to the... [2010 Subpoena] by formalizing its prior representations that it is not in possession of any responsive documents (other than the Code of Conduct) because it has no company policy prohibiting employees from discussing their pay, thereby mooting Sterling's motion for clarification [26] and the parties' need to file objections to the November 2, 2011 Report and Recommendation". November 29, 2011 Text Order [29].[4]

By letter dated November 30, 2011, Sterling provided the EEOC with a copy of Thielker's executed Statement of Standards of Conduct and Business Ethics dated April 13, 2007 and formalized its representation that Sterling has no policy prohibiting employees from discussing their pay. [30-2], p. 2 of 15.

C. The 2012 Subpoena

Thielker has produced to the EEOC over 100 declarations from current and former employees and managers of Sterling countering Sterling's representation that it has no policy prohibiting employees from discussing their pay. Thompson Declaration [30-1], ¶39.[5] According to the EEOC, "[i]n light of this new information, and in an effort to obtain information that would cast light on the truth or falsity of Sterling's representation that it had no policy prohibiting employee pay discussions, the EEOC served Sterling with [the 2012 Subpoena]" (id., ¶40), which seeks the following, from January 1, 2005, to the present:

"1. For each person who signed the August 2007 Employee Counseling Report concerning Diane Thielker, provide documents or [electronically stored information ("ESI")] including: name; home address; home telephone number; cell phone number; business phone number; business address; email addresses; job title as of August 2007; current job title; and whether currently employed at Sterling and if not, date of termination;
2. Provide all versions of Sterling's code of conduct that Sterling has distributed to its employees, managers, or supervisors;
3. Provide all documents and ESI interpreting, clarifying, or explaining the code of conduct;
4. Provide all documents and ESI concerning any training addressing the code of conduct;
5. Provide all documents and ESI setting forth or describing disciplinary ...

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