Federal Court Approves EEOC Subpoena in Investigation of Union Pacific

Agency Can Use Subpoena to Continue Investigation of Discrimination Even After Complainants' Private Lawsuit Has Been Dismissed

MILWAUKEE - A federal judge has approved a subpoena allowing the U.S. Equal Employment Opportunity Commission (EEOC) to proceed with its class-wide race discrimination investigation of Union Pacific Railroad, the federal agency announced today.

As indicated in the court's written decision, the EEOC's investigation began when two African-Americans filed charges alleging that Union Pacific had denied them promotions to assistant signal person positions because of their race. The EEOC learned that Union Pacific had not promoted a black employee into any of the 10 assistant signal person positions filled in the complainants' district in 2011.  While the EEOC investigated, the complainants filed a private lawsuit, which was dismissed in July 2014. The EEOC continued to investigate the possibility of class-wide discrimination, but Union Pacific refused to comply with two EEOC subpoenas. The EEOC filed actions to enforce the subpoenas.

On May 1, U.S. District Judge Lynn Adelman ruled in the EEOC's favor for a second time and ordered the parties to appear at a June 4 conference to discuss remaining enforcement issues. (EEOC v. Union Pacific R.R. Co., Case No. 2:14-mc-00052 (E.D.Wis. May 1, 2015)).

In his decision, Judge Adelman made several key rulings. First, federal law does not support Union Pacific's argument that an EEOC investigation must end when a private lawsuit is filed or concluded; the EEOC has authority to decide how it will use its resources-including determining to continue to pursue the matter. Second, the EEOC does not simply represent the interests of private parties; it also represents the "public interest." Third, it is irrelevant that the complainants only alleged individual discrimination, because EEOC may challenge any discrimination that it discovers while investigating the claims in a charge.  Thus, the July 2014 dismissal of the private claims did not deprive the EEOC of authority to investigate the possibility of a pattern or practice of discrimination.

Judge Adelman also rejected Union Pacific's argument that he should deny enforcement of the EEOC's subpoena because the amount of information it sought.  The judge noted that he could modify or exclude portions of the agency's subpoena only if Union Pacific showed that the subpoena was unduly burdensome or unreasonably broad, but that Union Pacific had not made such a showing.

Finally, he rejected Union Pacific's argument that the subpoena should be dismissed because the EEOC had dragged its feet in investigating the charges.  He held that Union Pacific was responsible for some of the delay because it refused to cooperate with the two EEOC subpoenas, which forced the EEOC to petition the district court to enforce them.        

 "This is an important ruling because it underscores that, once the EEOC receives a charge, it has the authority to further investigate that issue to see if the alleged violations are more widespread," said Julianne Bowman, director of the EEOC's Chicago District Office.

According to the EEOC, this is the second subpoena its Chicago District Office has sought to enforce during its investigation of these charges. Less than two years ago, in the first enforcement action, Union Pacific agreed to produce its 'Skilled Craft Battery Test' and test validation study after Judge Adelman denied its motion to dismiss for improper venue. (EEOC v. Union Pacific R.R., No. 13-mc-0022 (E.D. Wis., Aug. 6, 2013))."

John Hendrickson, the EEOC regional attorney in Chicago said, "Apparently, Union Pacific did not get the message which should have been clear from Judge Adelman's first decision.  Now, the railroad has spent years investing resources in fighting the EEOC, but has still arrived at no better place.  All employers can learn from this case:  Refusing to comply with an EEOC subpoena is virtually always a losing proposition and does not advance the employer's interests."

Union Pacific has its corporate headquarters in Omaha, Neb. Its website states that the railroad has 47,000 employees in 23 states across the western two-thirds of the United States.

The EEOC investigation of Union Pacific is being managed by Rosemary Fox, director of the EEOC's Milwaukee Area Office.  In addition to Regional Attorney Hendrickson, the EEOC's litigation team consisted of Associate Regional Attorney Jean P. Kamp and Senior Trial Attorney Dennis R. McBride.

The EEOC's Chicago District Office is responsible for processing charges of discrimination, administrative enforcement and the conduct of agency litigation in Illinois, Wisconsin, Minnesota, Iowa and North and South Dakota, with Area Offices in Milwaukee and Minneapolis.

The EEOC is responsible for enforcing federal laws prohibiting employment discrimination. Further information about the EEOC is available on its website at www.eeoc.gov.