U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,
BANK OF AMERICA, et al., Defendants.
CAM FERENBACH UNITED STATES MAGISTRATE JUDGE
This matter involves the U.S. Equal Employment Opportunity Commission’s civil enforcement action against Bank of America under the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, et seq. Two motions are before the court: the Commission’s Motion for a Protective Order (#38) and Bank of America’s Motion to Compel (#51). For the reasons stated below, the Commission’s Motion for a Protective Order is denied and Bank of America’s Motion to Compel is denied.
In 1998, Bank of America hired Melchora Lee to work as a cashier. (See Amend. Compl. (#39) at ¶ 15). In 1999, Lee was transferred to a new position where she began working as a Cash Services Representative. (Id.) This position required Lee to remove customer deposits from deposit bags, process the deposits, and ensure that all deposits were removed from the bag to prevent unprocessed deposits from being discarded in the trash. (See Lee Depo. (#51-2) at 134:9-19; 144:1-7). However, Lee allegedly failed to remove all of the deposits from the deposit bag. (Id. at 239:5-20). As a result, some customer’s deposits were discarded in the trash.
In September of 2010, Bank of America terminated Lee’s employment. (Amend. Compl. (#39) at ¶ 17). But, Lee was not a typical employee; she is deaf. (Id. at ¶ 13). Consequently, a dispute arose between Lee and Bank of America: was Lee terminated because she inadvertently discarded customer deposits in the trash or because Bank of America failed to make reasonable accommodations by, inter alia, communicating with Lee through American Sign Language?
On November 17, 2010, Lee filed an administrative charge against Bank of America with the U.S. Equal Employment Opportunity Commission. (Doc. #46 at 5:6-10). She alleged that she repeatedly requested an American-Sign-Language interpreter and that Bank of America denied her requests, harassed her, and ultimately terminated her employment because of her disability. (Id.) Under the Americans with Disabilities Act of 1990, the Equal Employment Opportunity Commission was required to investigate Lee’s allegations and engage in good-faith conciliation efforts with Bank of America a condition precedent to filing suit. See 42 U.S.C. § 2000e-5(b).
On September 25, 2013, the Commission commenced this action on behalf of Lee. Bank of America answered and alleged, as an affirmative defense, that the Commission failed to conciliate as required by the statute. (Answer (#49) at ¶ 3). This, Bank of America asserts, deprives the court of subject-matter jurisdiction because it constitutes a failure to exhaust administrative remedies. (Id. at ¶ 3).
The parties are currently in the midst of discovery. Documents produced by the Commission state that the “best way” to communicate with Lee is by text message. (Doc. #51 at 2:2-4) (citing Pelliconi Aff.). This statement conflicts with the gravamen of the Commission’s complaint, which alleges that Lee can only communicate through American Sign Language. Two discovery disputes resulted.
First, on October 9, 2014, the Commission filed the instant Motion for a Protective Order. It asks the court to preclude Bank of America from taking the Commission’s Rule 30(b)(6) deposition. Two topics are disputed: whether Bank of America may inquire into the Commission’s conciliation efforts and whether Bank of America may inquire into “[t]he facts supporting the EEOC’s allegations set forth in the Complaint” by clarifying factual information and ambiguities contained in the Commission’s previously produced investigatory file.
Second, on November 7, 2014, Bank of America filed the instant Motion to Compel. It requests an order requiring the Lee to produce documents relating to Lee’s ability to communicate in writing. Both motions are addressed below.
The parties’ motions present two questions: (1) whether Bank of America may depose the Commission’s Rule 30(b)(6) witness on matters including Bank of America’s affirmative-defense that the Commission failed to conciliate and (2) whether Bank of America’s subpoena, which requests information regarding Lee’s ability to communicate by writing, is unduly burdensome. Before examining these questions, the court begins with a brief discussion of the Americans with Disabilities Act.
I. Statutory Background
Title VII of the Civil Rights Act of 1964 and Title I of the Americans with Disabilities Act of 1990 prohibit employment discrimination on the basis of race, color, religion, sex, national origin or disability. 42 U.S.C. §§ 2000e-2, 12112. While Congress has authorized individuals and the Equal Employment Opportunity Commission to bring suits to enforce these statutes when certain conditions are met, “[c]ooperation and voluntary compliance were selected as the preferred means for achieving th[e] goal” of equal employment opportunity. Alexander v. Gardner-Denver Co., 415 U.S. 36, 44 (1974). Toward that end, “Congress established an integrated, multistep enforcement procedure culminating ...