EEOC v. Federal Express Corp., 543 F.3d 531 (9th Cir. 2008)

Tyrone Merritt filed this putative class action on behalf of himself and similarly situated African American and Latino employees, alleging that FedEx’s Basic Skills Test had a statistically significant adverse impact on African American and Latino employees. After issuing a right-to-sue notice to Merritt at his counsel’s request, the EEOC issued an administrative subpoena requiring FedEx to identify basic information about the computer files that it maintains. FedEx refused to comply with the subpoena, arguing that the EEOC was divested of investigatory authority once the party alleging the discriminatory practice initiates or (as in this case) joins a private action. The Ninth Circuit held: (1) Notwithstanding FedEx’s compliance with an administrative subpoena in another case, the EEOC was permitted to seek the same information in the subpoena that was issued in this case; (2) the EEOC retains the authority to issue an administrative subpoena against an employer after a charging party has been issued a right-to-sue notice and instituted a private action; and (3) an administrative subpoena, which does not seek direct evidence of discrimination, but instead seeks general employment files in order to help the EEOC draft future information requests, seeks evidence that is “relevant” to a charge of systemic discrimination.