March 25, 2013

COURT ORDERS EEOC TO PRODUCE WITNESS FOR DEPOSITION REGARDING WHETHER PRE-SUIT INVESTIGATION OCCURRED

The case is EEOC v. Grane Healthcare, decided on 3/25/13 by Judge Kim R. Gibson of the Western District of Pennsylvania [2013 U.S. Dist. LEXIS 35869]. The case itself is a class action suit by the EEOC alleging that two healthcare providers (Grane Healthcare Co. and Ebensburg Care Center LLC) conducted illegal pre-employment medical inquiries in violation of the ADA. There are approximately 283 class members.

There are some technicalities in motions and cross motions between the parties, but the final takeaway is that defendants may challenge whether a pre-suit investigation occurred, but not the substantive findings in that investigation. Or in the words of Judge Gibson:

This court believes that, to the extent that Defendants seek discovery on the substantive aspects of the investigation indicating sufficiency, such discovery is precluded and the EEOC may object to such discovery requests during the deposition testimony; however, discovery as to the existence of the occurrence of an actual investigation is not prohibited under controlling authority. Thus, for these reasons, the Court denies Plaintiff’s motion for a protective order and grants Defendants’ motion to compel.

The EEOC argued that the 6th Circuit had reasoned that a district court should not determine whether conciliation was sufficient because the form and substance of a condition precedent is a matter of EEOC discretion alone” (see EEOC v. Keco (1984) [748 F.2d 1097], to which the defendants countered “that they do not seek to challenge the sufficiency of the investigation, but seek to challenge the actual existence of an investigation.” Judge Gibson agreed that the challenge to the existence of an investigation is not tantamount to a challenge of the sufficiency of the investigation.

Although limited in scope, the ruling is a warning to the EEOC that prior to issuing a lawsuit, it must conduct an investigation, and the defendants are entitled to determine if such an investigation occurred.

by Art Gutman Ph.D., Professor, Florida Institute of Technology

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