FedEx loses appeal on EEOC's bid for records

www.azstarnet.com
By Howard Fischer
CAPITOL MEDIA SERVICES
Tucson, Arizona Published: 09.22.2008

PHOENIX — A federal appeals court has rejected efforts by FedEx Corp. to shield information about its personnel records from the U.S. Equal Employment Opportunity Commission.
In a unanimous decision, the 9th U.S. Circuit Court of Appeals said the federal agency is entitled to the materials as part of its investigation of whether the company has discriminated against blacks and Hispanics.
This is the second time the company has lost its legal battle to withhold the documents. A federal court judge in Tucson issued a similar ruling nearly two years ago.
The case has gained the attention of the national business community, to the point that an attorney representing the U.S. Chamber of Commerce and the Equal Employment Advisory Council filed legal papers on behalf of FedEx.
"This is a huge decision," said Sally Shanley, the regional trial attorney for the EEOC.
She said her agency has gotten "a lot of resistance" to these kinds of requests. Shanley said the appellate court ruling should make clear to companies that they cannot balk.
Calls to the FedEx's lawyer in Tennessee were not returned.
Central to the issue is a complaint filed four years ago by Tyrone Merritt, a FedEx employee in Phoenix. Merritt, a handler, said he failed the basic skills test that is required to be promoted to other positions, including customer service agent and courier.
According to Merritt, the test has a "statistically significant adverse impact" on blacks and Hispanics, though the claim does not explain the reasoning behind that contention. He also charged that Anglo employees were promoted over him for other positions such as dispatcher.
In an effort to investigate the case, the EEOC issued a subpoena demanding that FedEx provide what amounts to a list of all the types of personnel information and documents it has in its computers. Shanley said that would provide her agency with a road map to decide specifically what it needed.
FedEx objected for a variety of reasons.
One was purely technical: The company pointed out that Merritt decided to pursue his own civil lawsuit. That, the attorneys argued, stripped the EEOC of any power to investigate further.
But appellate Judge Wallace Tashima, writing for the court, said Merritt had alleged a pattern or practice of discrimination by the company against others. The judge said that gives the EEOC the power to investigate further. [To read the entire story, go to: http://www.azstarnet.com/sn/business/258577.php ]