United States District Court, N.D. Illinois, Eastern Division
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,
DOLGENCORP, LLC d/b/a DOLLAR GENERAL, Defendant.
MEMORANDUM OPINION AND ORDER
ANDREA R. WOOD, District Judge.
Plaintiff U.S. Equal Employment Opportunity Commission ("EEOC") has challenged Defendant Dolgencorp LLC's ("Dollar General") use of criminal background checks in considering potential employees. According to the EEOC, this practice has a disparate impact on African-American job applicants and thus violates Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. As part of the extensive and contentious discovery process in this case, the Court resolved cross-motions to compel in a Memorandum Opinion and Order dated May 5, 2015 ("May 5 Order"). (Dkt. No. 111.) Dollar General now challenges several aspects of the May 5 Order in its Motion for Reconsideration of the Court's Ruling on the Parties' Cross-Motions to Compel ("Motion to Reconsider"). (Dkt. No. 126.) Dollar General has also simultaneously filed a Motion to Stay Enforcement of the Court's Ruling Requiring Dollar General to Produce the Personal Identifying Information of its Conditional Hires ("Motion to Stay"). (Dkt. No. 128.) The Motion to Stay asks the Court to stay implementation of the May 5 Order to the extent it requires Dollar General to produce electronic information relating to its conditional hires until the Court resolves the Motion to Reconsider. For the reasons set forth below, the Court grants the Motion to Stay but denies the Motion to Reconsider.
Dollar General's Motion to Reconsider asks the Court to revisit three aspects of the May 5 Order. First, Dollar General seeks reconsideration of the May 5 Order to the extent it requires Dollar General to produce electronically-stored information ("ESI") containing personal identifying information ("PII") of Dollar General's conditional hires, such as their names, social security numbers, addresses, and telephone numbers. Second, Dollar General asks the Court to reconsider the portion of the ruling in which it declined to require the EEOC to produce information relating to the agency's own use of background checks and criminal history records when making employment decisions. Finally, Dollar General seeks reconsideration of the denial of Dollar General's motion to compel the EEOC to produce information and documents regarding other employers whose criminal background checks and policies have previously been found to be reasonable.
Motions to reconsider serve a limited function: "to correct manifest errors of law or fact or to present newly discovered evidence." Caisse Nationale de Credit Agricole v. CBI Indus., Inc., 90 F.3d 1264, 1269 (7th Cir. 1996). Put another way, "[a] district court may reconsider a prior decision when there has been a significant change in the law or facts since the parties presented the issue to the court, when the court misunderstands a party's arguments, or when the court overreaches by deciding an issue not properly before it." United States v. Ligas, 549 F.3d 497, 501 (7th Cir. 2008). "A manifest error' is not demonstrated by the disappointment of the losing party. It is the wholesale disregard, misapplication, or failure to recognize controlling precedent." Oto v. Metro. Life Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000) (internal quotation omitted).
I. Production of PII of Conditional Hires
In ordering the production of the PII, the Court considered the EEOC's arguments that it required that information (1) to link separate databases maintained by Dollar General and two of its vendors, and (2) to analyze whether any statistical effect observed is due to race as opposed to other demographic factors. In the Motion to Reconsider, Dollar General argues that the Court erred in "going outside the evidence" by purportedly rejecting the sworn affidavit of Douglas Owens, an economist and consultant, in which he claims that the relevant databases could be "easily" linked without the PII. (Mot. to Recons. at 3-4, Dkt. No. 126.) Specifically, in his affidavit, Owens states that linking the relevant databases could be accomplished using "the last four digits of candidates' Social Security Numbers, the city and state of candidates' residence, the month and day of candidates' birth, and a unique identification number for each candidate." (Ex. A to Resp. to Mot. to Compel ¶ 5, Dkt. No. 67-1.) Dollar General misreads the May 5 Order, however. Although the Court acknowledged in a footnote that it had "concerns regarding whether the linking process can be performed in a verifiably accurate manner" (Memo. Op. and Order at 3 n. 1, Dkt. No. 111), this concern was secondary to the Court's belief that, as discussed below, the additional information comprised by the PII was itself relevant. ( Id. at 3.)
Dollar General next argues that the EEOC is not entitled to undertake an analysis of non-racial demographic factors and thus the Court's reliance on the EEOC's need to do so was a manifest error that requires reversal. On this point, Dollar General first argues that the EEOC did not exhaust its administrative remedies with respect to non-racial demographic factors. This argument was not raised in Dollar General's initial briefing and therefore is not properly raised on a motion to reconsider. CBI Indus., Inc., 90 F.3d at 1270 (it is inappropriate to raise new legal theories in a motion to reconsider when they could have been heard during the pendency of the previous motion).
Furthermore, Dollar General once again misreads the May 5 Order: when the Court noted that the full PII would allow the EEOC to determine "whether non-racial demographic factors may have caused a statistical impact" (May 5 Order at 3, Dkt. No. 111), the Court was not giving the EEOC leave to make new or different discrimination claims. Rather, the Court was simply indicating that the additional PII data fields could be used as controls in conducting an analysis of the disparate impact on African Americans of Dollar General's criminal background check policy. Dollar General's unsupported assertion that "neither a name, a complete social security number, an address, nor a phone number can have a possible effect on the statistical analysis the EEOC is required to perform" (Mot. to Recons. at 6, Dkt. No. 126) was previously raised, considered, and rejected by the Court, and Dollar General fails to cite any controlling law that would dictate to the contrary. Thus, Dollar General fails to establish that the Court's conclusion regarding the relevance of the PII was "manifest error." CBI Indus., Inc., 90 F.3d at 1270 ("Reconsideration is not an appropriate forum for rehashing previously rejected arguments.").
Dollar General also contends that the Court "misunderstood" its argument that producing the PII would infringe upon the privacy of the conditional hires. Again, Dollar General engages in a selective reading of the May 5 Order by focusing only upon the Court's statement that "there is a confidentiality order in place in this case that expressly prohibits the use or disclosure of personal information except as necessary for purposes of this litigation." (May 5 Order at 3, Dkt. No. 111.) It ignores the fact that the Court also considered the argument that Dollar General has a privacy interest even in producing the personal information of its employees to the EEOC. ( Id. ) In the May 5 Order, the Court noted that the case law identified by Dollar General acknowledges that this privacy interest may be overridden when the information at issue is sufficiently relevant to the litigation. ( Id. ) The only additional case law cited by Dollar General in its Motion to Reconsider acknowledges this very same principle. See Onwuka v. Fed. Express Corp., 178 F.R.D. 508, 517 (D. Minn. 1997) (discovery of personnel information in an employment discrimination case is allowed where value of the information sought would outweigh the privacy interests). The Court did not misunderstand Dollar General's arguments; rather, it found that the relevancy of the PII was sufficient to overcome the applicable privacy interest.
Accordingly, the Motion to Reconsider is denied to the extent it asks the Court to revisit its decision requiring Dollar General to produce the requested PII.
II. The EEOC's Use of Background Checks and Criminal History Records
Dollar General also seeks reconsideration of the May 5 Order to the extent it held that the EEOC need not produce information regarding its own use of background checks and criminal history records when making employment decisions. According ...