UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

EQUAL EMPLOYMENT )

OPPORTUNITY COMMISSION, )

)

Plaintiff )

)

vs. ) CAUSE NO. 3:15-CV-42 RLM 

)

TRINITY HEALTH CORPORATION, )

)

Defendant )

OPINION and ORDER

Trinity Health seeks reconsideration of Magistrate Judge Christopher A.

Nuechterlein’s December 16, 2014 order granting the EEOC’s request to enforce

an administrative subpoena. Trinity Health objects to having to comply with

Subpoena No. IN-14-34S based on its arguments that (a) the information sought

by the EEOC is irrelevant to the Commission’s investigation of the underlying

case, and (b) compliance with the subpoena would be unduly burdensome. Trinity

Health asks that the court conduct a de novo review of the December 16 Order,

sustain its objections to that order, and stay enforcement of the subpoena pending

final resolution of the issues in this case.
BACKGROUND

The EEOC investigation underlying this action is based on a charge of

discrimination Simore Hasan filed in October 2013 alleging that her employer, St.

Joseph Regional Medical Center, a subsidiary of Trinity Health, violated the

Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., when it first suspended

her based on a disability-related absence and then terminated her employment

because of her disability. In February 2014, an EEOC investigator requested

information and documents from Trinity Health, including the identity of

employees with disabilities who had been adversely affected by the company’s nofault attendance policy. Trinity Health provided the EEOC with the documents it

thought relevant (e.g., a copy of Ms. Hasan’s personnel file, her employee medical

file, her leave requests, the names of the individuals involved in her termination

decision), but missing was the requested information about disabled employees

who were terminated under the no-fault attendance policy. The EEOC investigator

then contacted Trinity Health about the requested information – explaining that

the issue of the company’s no-fault attendance policy was necessary to evaluate

an issue that had arisen during the investigation of Ms. Hasan’s case – but no

documents were forthcoming. 

The EEOC issued a subpoena in July 2014 requesting Trinity Health to

“identify all employees who used up or had no FMLA and who were then

terminated, at any time since January 1, 2011, pursuant to the no fault

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attendance policy” and to provide certain documentation relating to the persons

identified. Trinity Health didn’t produce the information and instead filed a

petition to revoke or modify the subpoena in which it objected to disclosing any

of the information sought because, the company said, the information was

irrelevant to Ms. Hasan’s claims and production would be unduly burdensome.

The EEOC denied Trinity Health’s petition to revoke or modify the subpoena on

July 24, 2014 and directed that all documents requested in the subpoena be

produced within ten days of that date.

Trinity Health again declined to produce the requested information, so on

August 19, the EEOC filed this action asking the court to issue an order to Trinity

Health to show cause why the subpoena shouldn’t be enforced. On September 16,

the court gave Trinity Health to and including October 3, 2014 to show cause why

the EEOC’s subpoena shouldn’t be enforced against it. When briefing was

completed, Magistrate Judge Nuechterlein held a hearing on the EEOC’s

application, and on December 16, he granted the EEOC’s request and ordered

Trinity Health to comply with the subpoena no later than January 19, 2015. 

The cause is now before the court on Trinity Health’s objections to the

December 16 Order.

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DISCUSSION

The Federal Magistrate’s Act provides two standards for judicial review of

a magistrate judge’s decision: “de novo” review of a magistrate judge’s resolution

of a dispositive matter, see 28 U.S.C. § 636(b)(1)(B), (C), and “clearly erroneous or

contrary to law” review of the resolution of a nondispositive matter. 28 U.S.C. §

636(b)(1)(A); accord FED. R. CIV. P. 72(a), (b); see also Hall v. Norfolk Southern Ry.

Co., 469 F.3d 590, 594-595 (7th Cir. 2006) (“The Federal Rules of Civil Procedure

provide that when parties object to a magistrate judge’s order, district judges are

to review nondispositive decisions for clear error and dispositive rulings de novo.”).

A motion to enforce a subpoena is generally viewed as a non-dispositive matter,

Hartford Fire Ins. Co., Inc. v. Transgroup Express, Inc., No. 09 C3473, 2009 WL

2916832, at *1 (N.D. Ill. Sept. 1, 2009), but because the magistrate judge’s order

“would be dispositive of the entire matter before the court (that is, whether to

enforce the administrative subpoena[]), the court will review the [December 16]

ruling de novo.” NLRB v. G. Rabine & Sons, Inc., No. 00 C 5965, 2001 WL

1772333, at *3 (N.D. Ill. Sept. 10, 2001); see also EEOC v. Schwan’s Home Serv.,

707 F. Supp. 2d 980, 987 (D.Minn. 2010) (“[A]n application to enforce an

administrative subpoena duces tecum, where there is no pending underlying

action before the Court, is generally a dispositive matter, and therefore, when a

Magistrate Judge considers such an application, the district court reviews the

Magistrate Judge’s determinations de novo.” ); EEOC v. Nestle Prepared Foods,

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No. 5:11-cv-358, 2012 WL 1888130, at *2 (E.D. Ky. May 23, 2012) (“Because the

EEOC’s motion to enforce the subpoena sets forth all of the relief requested in this

matter, the Court views it as a dispositive motion.”); U.S. EEOC v. Dolgencorp.,

No. 07 C 6672, 2008 WL 4542973, at *2 (N.D. Ill. Apr. 15, 2008) (“Because the

Magistrate’s order would dispose of the entire matter at issue in this case,

however, the order is more properly treated as a Report and Recommendation,

subject to de novo review.”). 

The court will conduct a de novo review of the portions of the order to which

Trinity Health objects. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3). The court

may accept, reject, or modify the magistrate judge’s decision, receive further

evidence, or remand the matter with instructions. 28 U.S.C. § 636 (b)(1); Fed. R.

Civ. P. 72(b)(3).

A

Trinity Health’s first objection to the subpoena is that the information

sought by the EEOC isn’t relevant to Ms. Hasan’s case. Trinity Health complains

that the subpoena asks for the identity of individuals who aren’t comparable to

Ms. Hasan, i.e., individuals who weren’t eligible for FMLA leave or had exhausted

their FMLA entitlement and were terminated pursuant to the company’s no-fault

attendance policy, while Ms. Hasan was eligible for FMLA leave, hadn’t exhausted

her FMLA leave, and wasn’t discharged for violating the attendance policy. So, the

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company says, Ms. Hasan isn’t similarly situated to the employees who would be

identified pursuant to the subpoena. Trinity Health claims it shouldn’t be required

to help the EEOC identify other employees who might have other claims against

it.

Ms. Hasan has alleged that she was subjected to discrimination when she

was suspended and then terminated based on her disability. The EEOC has the

authority to investigate charges of employment discrimination based on a

disability, 42 U.S.C. § 12117(a); 42 U.S.C. § 2000e-8(a), with access to “virtually

any material that might cast light on the allegations against the employer.” EEOC

v. Shell Oil Co., 466 U.S. 54, 68–69 (1984). “[T]he role given to the Commission in

the statute calls for a relevance standard broad enough to ensure that the

‘Commission’s ability to investigate charges of systemic discrimination not be

impaired.’” EEOC v. Konica Minolta Business Solutions U.S.A., Inc., 639 F.3d

366, 369 (7th Cir. 2011) (quoting EEOC v. Shell Oil Co., 466 U.S. at 69). “‘Any

violations that the EEOC ascertains in the course of a reasonable investigation of

the charging party’s complaint are actionable.’ The charge incites the

investigation, but if the investigation turns up additional violations the

Commission can add them to its suit.” EEOC v. Caterpillar, Inc., 409 F.3d 831,

833 (7th Cir. 2005) (quoting General Tele. Co. v. EEOC, 446 U.S. 318, 331 (1980));

see also U.S. E.E.O.C. v. ABM Janitorial-Midwest, Inc., 671 F. Supp. 2d 999, 1004

(N.D. Ill. 2009) (“‘The EEOC’s role in the claims process is to investigate a claim

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thoroughly and reasonably and remedy any unlawful discrimination that it

uncovers.’” (quoting EEOC v. Tempel Steel Co., 723 F. Supp. 1250, 1253 (N.D. Ill.

1989) (emphasis in original))).

Courts generally enforce an administrative subpoena if “(1) it reasonably

relates to an investigation within the agency’s authority, (2) the specific inquiry is

relevant to that purpose and is not too indefinite, (3) the proper administrative

procedures have been followed, and (4) the subpoena does not demand

information for an illegitimate purpose.” Commodity Trend Serv., Inc. v.

Commodity Futures Trading Comm’n, 233 F.3d 981, 986 (7th Cir. 2000); see also

EEOC v. United Air Lines, Inc., 287 F.3d 643, 649 (7th Cir. 2002) (“As long as the

investigation is within the agency’s authority, the subpoena is not too indefinite,

and the information sought is reasonably relevant, the district court must enforce

an administrative subpoena.”) (quoting EEOC v. Tempel Steel Co., 814 F.2d 482,

485 (7th Cir. 1987)). The court doesn’t consider the merits of the underlying

charge of discrimination. EEOC v. Shell Oil Co., 466 U.S. 54, 72 n.26 (1984).

The EEOC explains that early in its investigation of Ms. Hasan’s claim, the

EEOC obtained information from Trinity Health about the company’s no-fault

attendance policy. The EEOC says the record of Ms. Hasan’s case contained

evidence that she might have been adversely impacted by that policy, so the

agency determined that additional information about the policy was necessary to

its investigation. The EEOC maintains that because the agency’s attempts to

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obtain information and documentation relevant to its investigation have been

unsuccessful, the subpoena should be enforced and Trinity Health ordered to

comply.

The EEOC maintains Trinity Health’s own assessment of the facts relating

to Ms. Hasan’s charge isn’t properly considered in the court’s determination of

what is relevant to the EEOC’s investigation. According to the EEOC, “while

[Trinity Health] may ultimately have the opportunity to argue the merits of [Ms.]

Hasan’s allegations, a subpoena enforcement proceeding is not the proper forum.”

Resp., at 5. The EEOC says the agency, not Trinity Health, “is tasked with the

responsibility of assessing relevance.” Resp., at 4. The court agrees. “Congress has

delegated to the EEOC the authority to investigate charges of discrimination, and

naturally the agency has developed expertise in that area. . . . [W]here an agency

is tasked with investigation, we defer to an agency’s own appraisal of what is

relevant so long as it is not obviously wrong.” EEOC v. Randstad, 685 F.3d 433,

448 (4th Cir. 2012). That Trinity Health disagrees with the EEOC’s evaluation of

what evidence is necessary to its investigation doesn’t demonstrate that the

EEOC’s determination of what is relevant is “obviously wrong.” 

The EEOC says, too, that Trinity Health’s comparison of this case to the

decisions denying the enforcement of EEOC subpoenas in EEOC v. Royal

Caribbean, 771 F.3d 757 (11th Cir. 2014), and EEOC v. United Airlines, 287 F.3d

643 (7th Cir. 2002), is misplaced because the burden of production in those cases

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far exceeded the burden claimed in this case and a significant jurisdictional issue,

not present here, factored into both those decisions. The court agrees with the

EEOC’s position and with the Magistrate Judge’s review of the facts and decisions

of those cases in the December 16 Order, as well as his conclusion that

There is no doubt that [EEOC v. Royal Caribbean and EEOC v.

United Airlines] define the limits of relevance in administrative

subpoenas in light of the Supreme Court’s broad definition of

relevance in [EEOC v. Shell Oil, 466 U.S. 54 (1984)]. Yet, the EEOC’s

subpoena to Trinity in this case does not approach these limits. [St.

Joseph Regional Medical Center] employs only about 2,000 people

from which an even smaller pool would meet the subpoena’s criteria

for production. In addition, the question of whether SJRMC’s

application of the attendance policy provided proper accommodation

for Ms. Hasan’s disability-related absences remains unresolved. As

a result, the court is persuaded that the EEOC’s subpoena seeks

information relevant to Ms. Hasan’s charge and should be enforced.

Ord. (Dec. 16, 2014), at 8.

The first three prongs of the court’s inquiry under Commodity Trend Service

v. Commodity Futures, 233 F.3d at 986, are met: the investigation being

undertaken by the EEOC is within the agency’s statutory authority, the requested

information is specific, and neither party has argued or alleged that the

administrative procedures employed were improper. See EEOC v. United Air Lines,

Inc., 287 F.3d 643, 649 (7th Cir. 2002) (“As long as the investigation is within the

agency’s authority, the subpoena is not too indefinite, and the information sought

is reasonably relevant, the district court must enforce an administrative

subpoena.”). Lastly, Trinity Health’s unsupported claim that “[a]t worst, the sole

purpose of the subpoena is . . . to identify other employees who may have claims,”

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Pltf. Obj., at 11, is insufficient to establish that the information being sought is

intended for an illegitimate purpose as required under the fourth prong of the

court’s inquiry. See National Labor Relations Bd. v. Marano, 996 F. Supp. 2d 720,

723 (E.D. Wis. 2014) (“Ultimately, the burden on the party to whom the subpoena

is addressed is not a meager one. It must come forward with facts suggesting that

the subpoena is intended solely to serve purposes outside of the jurisdiction of the

issuing agency.” (internal quotation and citation omitted)). The court overrules

Trinity Health’s objections to the Magistrate Judge’s order and conclues that the

EEOC’s request for information about Trinity Health’s no-fault attendance policy

is relevant to a determination of whether Trinity Health’s policies amount to

disability discrimination. 

B

Trinity Health claims the magistrate judge incorrectly determined that there

was no undue burden on Trinity Health to comply with the subpoena, especially

since the information sought is irrelevant to the charge under investigation by the

EEOC. Trinity Health again maintains that the decisions in EEOC v. Royal

Caribbean, 771 F.3d 757 (11th Cir. 2014), and EEOC v. United Airlines, 287 F.3d

643 (7th Cir. 2002), support a finding that responding to the EEOC subpoena

would be unduly burdensome. 

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“[T]he presumption is that compliance should be enforced to further the

agency’s legitimate inquiry into matters of public interest. Consequently, a court

may modify or exclude portions of a subpoena only if the employer carries the

difficult burden of showing that the demands are unduly burdensome or

unreasonably broad.” EEOC v. United Air Lines, Inc., 287 F.3d 643, 653 (7th Cir.

2002) (internal quotation and citation omitted). “An unduly burdensome or

unreasonably broad subpoena is one that threatens ‘the normal operation of a

respondent’s business.’” U.S. Dep’t of Educ. v. National Collegiate Athletic Ass’n,

No. 1:06-cv-1333, 2006 WL 3198822, at *4 (S.D. Ind. Sept. 8, 2006) (quoting

EEOC v. United Air Lines, Inc., 287 F.3d 643, 653 (7th Cir. 2002)). 

Trinity Health estimates that identifying and locating documents that meet

the EEOC’s criteria would require a minimum of 80 hours. Magistrate Judge

Nuechterlein’s analysis of the argument is persuasive:

The court acknowledges that costs will result from the requested

production. Yet the costs Trinity has identified do not suggest that its

normal operation of business will be threatened if required to comply

with the EEOC’s subpoena. Moreover, cases where courts have

refused to enforce comparable administrative subpoenas have

involved production costs considerably higher [] in terms of time and

money compared to available institutional resources. In this case, [St.

Joseph Regional Medical Center’s] human resources department is

sophisticated enough to deal with the myriad of issues generated by

2,000 employees. Moreover, SJRMC and Trinity are engaged in the

highly regulated health care industry suggesting, at the very least, a

familiarity with the processes of regulatory compliance. As a result,

the court is convinced that SJRMC is sufficiently equipped to absorb

the costs of production based on its own estimate. More importantly,

the relevance of the requested information to the question of whether 

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SJRMC discriminated against Ms. Hasan in violation of the ADA

outweighs the costs SJRMC has identified.

Ord. (Dec. 16, 2014), at 11-12 (citations omitted).

The court overrules Trinity Health’s objection to the Magistrate Judge’s

conclusion that compliance with the subpoena wouldn’t be unduly burdensome

for the company.

CONCLUSION

Based on the foregoing, the court OVERRULES Trinity Health’s objections

[docket # 16] to the December 16, 2014 Order [docket # 15], ADOPTS the findings

and conclusions of the December 16, 2014 Order, GRANTS the EEOC’s request

to enforce Subpoena No. IN-14-34S, and ORDERS Trinity Health to comply with

the subpoena within twenty days of this date.

SO ORDERED.

ENTERED: May 11, 2015 

 /s/ Robert L. Miller, Jr. 

Judge, United States District Court

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