498 F. App'x 645
7th Cir.2013Background
- EEOC issued subpoena No. CH 09-322 to Aerotek in Sept 2009 during an investigation of charges alleging national-origin discrimination.
- Subpoena sought 17 categories of documents from six Aerotek facilities; seven requests focused on demographic and employment/placement data across internal and contract workers.
- Aerotek timely filed a Petition to Modify or Revoke the Subpoena within five business days (Sept 29, 2009) but the EEOC determined the petition was late.
- Two EEOC members considered the petition due to a vacancy in the Commission; the determination stated Aerotek waived objections by filing late, yet it allowed modification of two categories.
- Aerotek produced a limited sample of documents and reportedly provided about 13,000 pages; several requests remained unresolved, prompting enforcement proceedings.
- District court enforced the subpoena; Aerotek challenged lack of a three-member quorum, but the court held the timeliness issue controlled and the waiver resolved the dispute for purposes of enforcement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Waiver of objections due to tardy petition under §1601.16(b)(1) | Aerotek contends timely petition required; timeliness dispute should bar enforcement only if preserved. | EEOC argues petitioner waived objections by filing late; no timely contest by Aerotek. | Aerotek waived objections; enforcement affirmed on waiver ground. |
| Impact of alleged lack of quorum on enforcement | Aerotek argues absence of three commissioners invalidates action. | EEOC contends waiver and delegation validate enforcement despite quorum issue. | Court avoids deciding quorum validity; waiver defeats the challenge to enforcement. |
| Authority of EEOC to enforce subpoena after late petition | Aerotek challenges substantive enforcement if petition late. | EEOC asserts authority to enforce when timely petition is not filed; late petition does not bar enforcement due to waiver. | EEOC may enforce subpoena due to waiver of objections. |
Key Cases Cited
- EEOC v. Tempel Steel Co., 814 F.2d 482 (7th Cir. 1987) (summary enforcement posture of EEOC subpoenas; limited judicial oversight)
- EEOC v. Konica Minolta Bus. Solutions U.S.A., Inc., 639 F.3d 366 (7th Cir. 2011) (recognizes limited judicial review in subpoena enforcement)
- EEOC v. United Air Lines, Inc., 287 F.3d 643 (7th Cir. 2002) (enforcement framework for EEOC subpoenas)
- Brosted v. Unum Life Ins. Co. of America, 421 F.3d 459 (7th Cir. 2005) (authority to affirm on any basis in the record when proper)
- EEOC v. Shell Oil Co., 466 U.S. 54 (1984) (limits on judicial review of discrimination enforcement actions)
- Lutheran Social Servs. of the District of Columbia v. Heckler, 186 F.3d 959 (D.C. Cir. 1999) (no categorical bar to considering failure to timely petition; context-based)
- EEOC v. Cuzzens of Georgia, 608 F.2d 1062 (5th Cir. 1979) (whether failure to exhaust remedies bars later enforcement challenges—context dependent)