Jessica M. Karmasek Aug. 6, 2013, 4:45pm

WASHINGTON (Legal Newsline) -- One of the world's largest manufacturers of agriculture and construction equipment is suing the federal Equal Employment Opportunity Commission, accusing it of unconstitutionally trolling for class members in a potential age discrimination class action.

Case New Holland Inc., based in Racine, Wis., filed its 24-page complaint against the EEOC in the U.S. District Court for the District of Columbia Thursday.

CNH, a majority-owned subsidiary of Fiat Industrial, filed the suit after the agency sent -- unconstitutionally, arbitrarily and capriciously, the company argues -- more than 1,000 emails to CNH business domains to allegedly solicit plaintiffs to commence a class action against the company.

The email "blast," sent June 5, 2013, came more than two years after the EEOC launched a review of CNH under the federal Age Discrimination in Employment Act, or ADEA, and 18 months after the company produced more than 600 megabytes of data in cooperation with the agency's review.

CNH, in its complaint, claims that between Jan. 5, 2012 and June 5, 2013 that it received "not one phone call, email or letter" from the EEOC or federal investigator Chetan Patel, who also is a named defendant in the suit.

Then, after months of being dormant, the agency sent 1,330 emails to CNH business addresses in the United States and Canada, or about 1,169 actual CNH employees -- including some in the company's legal department, and managers and others with the authority to bind CNH with evidentiary admissions.

The company says it was given no prior notice "whatsoever" of the email and survey, and has not been provided with a copy of the survey by the EEOC.

Instead, a recipient forwarded the email and survey link to the company's outside counsel, Seyfarth Shaw LLP, out of concern.

CNH -- which, it notes, intentionally did not ask employees to see the email -- says it presumes it is a common survey sent to all 1,330 addresses.

The company contends the questionnaire was "biased," not a fair survey and on the subject of age discrimination, its questions were "leading" and suggested answers "adverse to its interests."

CNH says the web-based questions also were confusing and "not worthy of an unbiased investigation."

In addition, it says the email made no mention of the right of the recipient not to complete the survey and closed by demanding the employee's birth date, address and phone number "in case we need to contact you."

CNH further argues in its complaint that the EEOC's survey disrupted its business operations -- it was delivered at 8 a.m. EST on a Wednesday -- and alarmed its employees.

"A 'Federal Investigation' by business (or any) email prompts employees, impulsively, to question what other information the federal government already possesses about them," lawyers for CNH wrote.

"Recipient employees question, reflexively, whether the federal government is on a mission to collect data on them, and excitedly speculate about the purpose of the collection efforts."

Click here to view a copy of the EEOC's email and survey sent to the CNH employees.

In the days following the "blast," CNH says it requested the agency's email distribution list, a statement of its purpose, the legal basis for the action and whether the EEOC considered ahead of time the disruption it would cause.

The agency did not respond.

The company then took its request to a regional attorney of the EEOC in Philadelphia, who referred the request to the agency's district director.

CNH then voiced its opposition to the agency's five commissioners -- Chairwoman Jacqueline Berrien and members Constance Barker, Chai Feldblum, Victoria Lipnic and Jenny Yang -- and the director of its office of field programs, again requesting the same information.

Again, the company received no response.

At that point, Congressman Joseph Pitts, R-Pa., got involved, asking for answers from the agency himself.

The EEOC's district director responded nearly a month later, describing the email tactic as "efficient."

Soon after, the agency responded to CNH -- as a follow up to a June conference -- admitting that the purpose of the emails was "for identifying potential class members." However, the company says the EEOC still refuses to respond to its request for specific information.

CNH says the email campaign has "broke new investigatory ground for the EEOC," which prides itself on its monetary settlements with businesses, the company argues.

CNH wants the federal court to: declare the agency violated the Administrative Procedures Act and the U.S. Constitution; grant a permanent injunction prohibiting the EEOC and Patel from sending emails to its employees; grant a permanent injunction ordering the defendants to turn over all information gathered through the email blast; grant a permanent injunction prohibiting the defendants from disclosing any of the information they gathered to a third party; and grant a permanent injunction prohibiting them from utilizing the information they gathered "in any subsequent lawsuit the EEOC may commence against CNH." The company also is asking for attorney's fees and costs.

The case has been assigned to Judge Reggie B. Walton.

Click here to read CNH's complaint.

The company isn't the only one to go after the agency recently.

The EEOC also is under fire for lawsuits it has filed against BMW Manufacturing Co. LLC and Dollar General.

Last month, a group of nine state attorneys general sent a letter to Berrien, arguing that the agency's suits against the two businesses -- which claim the companies' policy of using criminal background checks as part of their hiring decision constitutes unlawful discrimination -- are "misguided and a quintessential example of gross federal overreach."

From Legal Newsline: Reach Jessica Karmasek by email at

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