Appeals Court Orders Frozen Food Giant Schwan's  To Comply with EEOC Subpoena in Sex Bias Case

Company Must Now Supply Information for Federal Agency's Investigation of Nationwide Sex Discrimination, Sexual Harassment and Retaliation

MINNEAPOLIS – In a ruling issued July 13, the U.S. Court of Appeals for the Eighth Circuit ordered Minnesota-based frozen food delivery company Schwan's Home Service to comply with a subpoena issued by the U.S. Equal Employment Opportunity Commission (EEOC) to gather information in a sex discrimination case.

The Eighth Circuit decision is now the third one from a federal court to approve the EEOC's issuance of the subpoena and the third to order Schwan's to cooperate with the EEOC's investigation. Today's decision affirms a June 30, 2010 decision by U.S. District Court Judge John R. Tunheim of the District of Minnesota, who previously ordered Schwan's to comply with the EEOC's subpoena. Prior still, U.S. Magistrate Judge Janie S. Mayeron, in a March 8, 2010 opinion, ordered the frozen-food giant to provide the EEOC with basic categories of personnel information regarding employees who manage its frozen-food storage facilities nationwide.

The subpoena subject to today's ruling was issued pursuant to the EEOC's now four-year-long investigation of a charge of sex discrimination filed by former Schwan's employee Kim Milliren with the EEOC's Minneapolis Area Office in 2007. In the charge, Milliren alleged that she was discriminated against on the basis of gender and subjected to sexual harassment and retaliation during her employment with Schwan's Home Service. Milliren was selected to participate in Schwan's General Manager Development Program, a training program that trains candidates to be location general managers at its warehouse depots throughout the country. Since that time, the EEOC has been investigating whether Milliren and other women were subjected to sex discrimination in the program, as well as sexual harassment and retaliation.

The EEOC filed its original subpoena enforcement proceeding in U.S. District Court for the District of Minnesota on October 5, 2009 (EEOC v. Schwan's Home Service, Misc. Case No. 09-84 (JRT/JSM)) after first giving Schwan's several opportunities to provide the requested information voluntarily. In opposing the EEOC's enforcement of the subpoena, Schwan's has variously accused the EEOC of pursuing a "fishing expedition" and suggested that the EEOC may be engaging in misconduct, but those accusations have never been sustained or upheld.

EEOC Regional Attorney John Hendrickson said, "Today's ruling reinforces the EEOC's authority to investigate widespread discrimination against groups after having received a charge from one person which reflects only that individual's experience. That's one way we get at systemic discrimination, and the court has said that's a perfectly good way to do it. It's another reason why employers who insist on making heavy investments in resisting legitimate EEOC subpoenas will continue to come up empty."

John Rowe, director of the EEOC's Chicago District, is managing the agency's investigation of Schwan's. Rowe said, "Today's events signal, once again, that we do not issue subpoenas unless we are prepared to make them stick. The court has said, just as the two before it did, that the EEOC is on solid legal footing in going after information it deems relevant during an investigation of systemic job bias—even if the entire matter began with a single individual discrimination charge."

Schwan's Home Service is a wholly owned subsidiary of The Schwan's Food Company, based in Marshall, Minn. Schwan's Home Service, the company's home delivery service, has approximately 500 sales and distribution centers throughout the United States. The Schwan Food Company is a multi-billion-dollar private company with approximately 18,000 employees worldwide.

The EEOC is being represented in the federal district court by Nicholas Pladson, a trial attorney in the agency's Minneapolis Area Office. The EEOC was represented on the appeal in the Eighth Circuit by Julie Gantz, Vincent Blackwood, and Lorraine Davis, all of Appellate Services in the agency's Office of General Counsel in Washington, D.C.

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

The EEOC is responsible for enforcing federal laws against employment discrimination. Further information is available at www.eeoc.gov.