No

Appellant’s statement of subject matter and appellate jurisdiction is correct and complete.

1. Whether the district court properly denied Aerotek’s motion to dismiss the EEOC’s subpoena.

2. Whether the district court properly upheld as authorized and relevant EEOC’s expanded investigation, which included other possible violations uncovered during the agency’s investigation of the filed charges.

3. Whether the district court properly decided that Aerotek failed to meet its burden of proving that compliance with the subpoena would be unduly burdensome.

STATEMENT OF THE FACTS

A. Aerotek’s Corporate Structure and the Charging Parties

Aerotek, Inc. is a staffing agency with approximately 6,500 internal employees and 77,000 contract employees nationwide. Aerotek’s Short Appendix (ASA) 37; EEOC Determ. on Aerotek’s Pet. to Revoke (EEOC Determ.) at 1. It provides temporary staffing services on a contract basis to various client organizations. The majority of Aerotek’s workforce is comprised of contract or “temporary employees” assigned to work for varied lengths of time at its clients’ premises. Aerotek also employs a smaller number of internal employees to recruit and manage the temporary employees placed with the clients. These internal employees include recruiters who are responsible for sourcing, recruiting, assigning, and monitoring the contract employees they place. R.7-2 at 119, D.14, Aerotek Opp. To EEOC’s Application (Aerotek’s Opp.) at 2.[1] Some of Aerotek’s employees are located at or placed by Aerotek’s seven Illinois-based facilities in Chicago, Schaumburg, Crystal Lake, Rockford, Rosemont, Oak Brook, and Gurnee. R.7-2 at 28, D.4-1, Ex.A-Lamb Declaration (Decl.) at 2¶5(a). According to a list provided by Aerotek in 2011, Aerotek had a total of 362 employees based in its Crystal Lake, Rockford, and Schaumburg locations. R.7-2 at 191, D.15-1, Ex. A- Preliminary Injunction Transcript (P.I. Tr.) at 23 (Lamb testimony). More than 50% of these employees were recruiters. R.7-2 at 192, D.15-1, Ex. A- P.I. Tr. at 24 (Lamb testimony).

In 2005, Aerotek hired Marco Rivera to be a Sourcing Specialist at its Schaumburg location. In April 2006, Rivera transferred to the Crystal Lake office and was promoted to Premise Manager. In September 2007, Rivera was promoted to Recruiter and in the next month, to Recruiter II. However, allegedly because he failed to maintain the minimum gross requirements of the Recruiter II position, Aerotek demoted Rivera to Recruiter in April 2008. On May 20, 2008, Rivera filed an EEOC charge against Aerotek alleging that he was “segregated, denied training, . . . subjected to different terms and conditions of employment [and] denied promotions” because of his Hispanic national origin and that he was subjected to retaliation and constructively discharged. R.7-2 at 49, D.4-1, Ex.4-Aerotek Request to Revoke or Modify Subpoena (Aerotek Req. to Revoke) at 2; ASA 30 (Rivera charge).

In April 2007, Aerotek hired Oscar Gutierrez to be a Recruiter Trainee in its Rockford office. In July 2007, Gutierrez was promoted to Recruiter. On March 3, 2008, at Gutierrez’s request, he was transferred to the Schaumburg office. On May 20, 2008, Gutierrez filed an EEOC charge alleging that Aerotek discriminated against him in his terms and conditions of employment because of his Mexican national origin, engaged in retaliation because of his protected activity, and constructively discharged him. R.7-2 at 49, D.4-1, Ex.4-Aerotek Req. to Revoke at 2; ASA 29 (Gutierrez charge).

B. EEOC’s Subpoena and Aerotek’s Petition to Revoke or Modify

In the course of investigating the Rivera and Gutierrez charges, the EEOC investigator learned that Aerotek allegedly had required its recruiters to recruit and place contract employees in accordance with client organizations’ discriminatory preferences. R.7-2 at 25, D.4-1, Ex. A-Lamb Decl. at 3¶5(h). The investigator also learned that certain contract employees may have been paid less or placed in inferior positions because of their national origin. He also obtained witness testimony regarding potential discriminatory practices at all seven of Aerotek’s Illinois offices. Id.

In addition to investigating Rivera and Gutierrez’s charges, the investigator was tasked with investigating ten additional pending charges filed against Aerotek, alleging discrimination in various employment practices based on race, national origin, gender, age, and disability, retaliation, and racial and sexual harassment. R.7-2 at 27-29, D.4-1, Ex. A-Lamb Decl. at 1¶4, 2¶5(f), 3¶5(g); R.7-2 at 187-89, D.15-1, Ex. A- P.I. Tr. at 19-21 (Lamb testimony). These ten charges had been filed by current or former employees who had worked at Aerotek’s Schaumburg, Oak Brook, and Rosemont locations. R.7-2 at 27, D.4-1, Ex. A-Lamb Decl. at 1¶4. Based on the charging parties and other witnesses’ testimony and the growing number of charges against Aerotek, EEOC investigated all of the claims against Aerotek as they related to its seven offices in Illinois. R.7-2 at 29, D.4-1, Ex. A-Lamb Decl. at 3¶5(i). The EEOC investigator did not inform Aerotek as why the investigation was being expanded because “informing the respondent of these additional possible violations . . . gives the respondent more of a chance to conceal evidence or to influence witnesses to say things that perhaps they might not have said.” R. 7-2 at 195, D.15-1-P.I. Tr. at 39 (Lamb testimony).

To investigate the claims of potential violations, on April 15, 2009, in a subpoena different from the one on appeal (“Schaumburg subpoena”), the EEOC initially asked Aerotek to produce race and national origin data and personnel information about the employees who worked at the Schaumburg facility. The Schaumburg subpoena also solicited a list of employees serving as Recruiters, Sourcing Specialists, or in the Recruiter Training program, certain position descriptions, names of recruiters who were demoted at all seven Illinois locations, and resumes of the 35 individuals working at the Schaumburg location. ASA 38; R.7-2 at 49-50, Aerotek Req. to Revoke at 2-3.

After reviewing the documentation produced by Aerotek, on September 15, 2009, the EEOC issued Subpoena No. CH 09-322, the subject of this appeal. The 17-category subpoena, which cited Rivera and Gutierrez’s charges, requested personnel and operational information for six locations for the timeframe of January 2006 to the present, a period which at the time of issuance spanned less than four years. See ASA 31-36. Specifically, the subpoena requested demographic information such as race, gender, national origin, and date of birth for all internal and contract employees as well information about recruitment, selection, placement, and termination decisions by Aerotek and its client organizations. Id.

On September 29, 2009, Aerotek requested a modification or revocation of the EEOC subpoena, arguing that the requested information was irrelevant to the two national origin charges, temporally overbroad, unduly burdensome, and privileged. R.7-2 at 47-59, D. 4-1, Aerotek Req. to Revoke at 1-12. Aerotek disputed the relevance of information relating to Aerotek’s Rosemont, Oak Brook, Gurnee, and Chicago offices because neither Gutierrez nor Rivera had worked at these locations and declined to release any information from these locations. Instead, Aerotek stated that, since Gutierrez and Rivera had worked at the Schaumburg, Crystal Lake and Rockford sites, as it did with the Schaumburg subpoena, it was “willing to provide similar information with respect to the employees at the Crystal Lake and Rockford facilities . . . [.]” R.7-2 at 51, D.4-1, Aerotek Req. to Revoke at 4.

Aerotek also challenged the EEOC’s request for hiring information because neither Gutierrez nor Rivera alleged discrimination in hiring in their charges. Aerotek stated that because the subpoena sought information related to the hiring of all employees, internal and contract, and not just those hired for the positions Rivera and Gutierrez held or at the places where they worked, Aerotek asked that the request be modified or revoked. R.7-2 at 51, D.4-1, Aerotek Req. to Revoke at 4. Aerotek then refused to produce its client contracts or documents concerning the placement of its contract employees because the referenced charges did not allege any discrimination or retaliation involving Aerotek’s clients. Thus, Aerotek sought full revocation of this request. R.7-2 at 51-52, D.4-1, Aerotek Req. to Revoke at 4-5.

With respect to overbreadth, Aerotek sought modification of the temporal scope of the subpoena. The company argued that information starting in January 2006 is overbroad because the charges were filed in May 2008. In its view, “any claims and discovery relating to such claims would be limited to a period after July 2007.” R.7-2 at 52, D.4-1, Aerotek Req. to Revoke at 5. It also sought revocation of the provisions seeking information about the hiring practices of its clients since no allegations had been made against any Aerotek client and they were not identified as Respondents in the Gutierrez or Rivera charges. Concomitantly, Aerotek refused to produce any information relating to its corporate structure, including organizational charts, job titles, lines of authority, and restructuring. Id.

Lastly, Aerotek argued that the subpoena was unduly burdensome because it sought information about Aerotek’s hiring practices, including information about applicants who were not hired, and it required Aerotek to “create three electronic databases containing this information.” R.7-2 at 52, D.4-1, Aerotek Req. to Revoke at 5. To be compliant, Aerotek stated that it would have to collect “electronic information for and hard copy documents from each of the six locations. These documents would then need to be reviewed and coded into electronic format.” Id. In its opinion, “it would take weeks, perhaps months, to gather this information.” Id. Aerotek requested that the Commission remove the requirement to create an electronic database from the subpoena. Id.

C. EEOC’s Final Determination and Ratification

In January 2010, the Commission issued a determination denying Aerotek’s petition but it modified the subpoena by slightly restricting the timeframe for certain requests or reducing or foregoing the production of subpoenaed information. The determination was made by two Commissioners, Acting Chair Stuart Ishimaru and Commissioner Constance Barker, who had been delegated the authority to act on behalf of the Commission on December 18, 2009, before Vice Chair Christine Griffin departed. ASA 7; Add. 54-1 (Delegation Order).

On January 19, 2010, in its determination, the EEOC denied Aerotek’s petition to revoke on two grounds. As a preliminary matter, the Commission determined that Aerotek’s request to revoke or modify was untimely because EEOC regulations require respondents to file a petition to revoke within five business days after service of the subpoena at issue. Here, according to the certificate of service, Aerotek received the EEOC’s subpoena on September 21, and waited until September 29, more than five business days later, to file its petition. ASA 39. The EEOC ruled that “by filing a tardy petition . . . , Aerotek waived its objections.” Id.

The Commission then reviewed Aerotek’s subpoena and alternatively concluded that: (1) the subpoena should be enforced with respect to fifteen of the seventeen categories, ASA 37, 40-47; (2) that Request 12 should be modified to require only two sample client contracts, ASA 42; and (3) Aerotek would not be required to produce the information indicated in Request 11 yet. Id. The Commission also rejected Aerotek’s request to forego creating an electronic database and considered its arguments regarding burdensomeness to be “conclusory” and failing to provide any meaningful basis upon which to evaluate the potential undue burden. ASA 45. In the Commission’s view, Aerotek’s allegations did not satisfy the Seventh Circuit’s standard of showing that compliance would threaten the normal operations of business. Id.

Moreover, the Commission noted that courts have consistently held that subpoenas requiring Respondents to collect and organize data for an EEOC investigation, even if it took six months, are not unduly burdensome. Id. Accordingly, the Commission set new deadlines ordering Aerotek to comply with the Subpoena as to Requests 1-6, 10, 12 as modified, and 13-17 by February 10, 2010, and to produce the information solicited by Requests 7-9 by March 12, 2010. ASA 47. The Commission reserved the right to enforce the subpoena in its entirety at a later date. ASA 42.

Following EEOC’s reconstitution to its full complement of five commissioners, the agency issued a Commission resolution on April 29, 2010, that ratified all 25 matters the two Commissioners had acted on pursuant to delegation during the period of December 24, 2009 to April 7, 2010. Aerotek Br. at 13; ASA 5; Add. 54-2 (Ratification resolution). Specifically, the resolution ratified the two commissioners’ final determination as to Aerotek’s petition to revoke. See Add. 54-2.

D. Aerotek’s Continued Non-Compliance [2]

Although the Commission’s final determination modified the subpoena and set new deadlines, Aerotek still did not produce documentation and refused to create electronic databases. After repeated requests for the subpoenaed data, on February 25, 2010, the EEOC permitted Aerotek to provide a sampling of data in response to Request Nos. 7-10 as they related to the Schaumburg location for the two year period of 2007-2008. R.7-2 at 134, D.14-1, Ex. A-February 25, 2010 EEOC Letter to Aerotek. The purpose of the accommodation was for EEOC to determine whether Aerotek would suffer an undue burden in responding to its modified subpoena in its entirety. R.7-2 at 30, D.4-1, Ex.A-Lamb Decl. at 4¶5(m). The investigator and his supervisors reviewed the hard copy documents that Aerotek produced and determined that full compliance would not present an undue hardship. After several telephone calls and emails with Aerotek addressing its concerns about how to produce the subpoenaed information, on April 7, 2010, a date beyond the deadlines set by the Commission’s final determination, EEOC again asked Aerotek to comply with the subpoena as modified by the final determination. Id. at 4¶5(n-o); see, e.g., R.7-2 at xx, D.4-1, Ex.6 –April 7, 2010 email requesting electronic database.

By May 20, 2010, now five months after the Commission’s denial of Aerotek’s petition to revoke, Aerotek submitted partial responses to the EEOC subpoena. For example, rather than producing a searchable CD-ROM of the electronic Excel database it created as the subpoena requested, Aerotek produced 13,000 pages of documents, some of which were printed copies of the Excel pages. Aerotek Br. At 13; R.7-2 at 31, D.4-1, Ex.A-Lamb Decl. at 5¶5(p). Additionally, Aerotek failed to produce information about the other six locations, including the Crystal Lake and Rockford locations it had previously admitted were relevant to the filed charges because the charging parties had worked there. Id. at 5¶5(o); R.7-2 at 51, D.4-1, Ex.4-Aerotek Req. to Revoke at 4.

On May 27, 2010, the EEOC investigator informed Aerotek that it must fully comply with the modified subpoena by June 11, 2010, but it released Aerotek from the requirement to create an electronic database that was responsive to Request No. 8, which sought information about all contract employees who applied for employment or sought placement with Aerotek’s clients but were not selected. R.7-2 at 31, D.4-1, Ex.A-Lamb Decl. at 5¶5(p); see generally R.7-2 at 80, D.4-1, Ex. 8-May 27, 2010 EEOC Letter to Aerotek. On June 10, Aerotek sent EEOC a letter declining to comply with the subpoena. Id. at 5¶5(q). On November 4, 2010, EEOC sought enforcement by the district court of seven of the ten outstanding requests in its subpoena. R.7-2 at 3, D.1 (EEOC application); R.7-2 at 32, D.4-1, Ex.A-Lamb Decl. at 6¶¶6-7.

E. District Court Decision

The district court enforced the EEOC’s subpoena. ASA 16-28.[3] At the outset, the district court denied Aerotek’s motion to dismiss based on a challenge to the district court’s jurisdiction. The court held that althought the Commission had only two commissioners when it denied Aerotek’s petition to modify or revoke the subpoena, the lack of quorum did not affect the district court’s jurisdiction. Specifically, the court held that New Process Steel v. NLRB, 130 S. Ct. 2635 (2010), holding that a ruling issued by two members of the National Labor Relations Board (NLRB) was unenforceable, had no relevance in this case. The court noted there were textual differences between the National Labor Relations Act and Title VII, and that the full Commission had ratified the determination of the two commissioners well before the EEOC filed this subpoena enforcement action in court. ASA 19-23.

On the merits of the challenge to the subpoena’ relevance and breadth, the district court rejected Aerotek’s arguments about the geographic, temporal, and substantive relevance of the information sought. It ruled that since the charges implicated three locations in Illinois, the EEOC was entitled to information about other facilities in Illinois to determine whether the alleged discrimination “was isolated or part of a widespread pattern.” ASA 26. The court also ruled that the temporal scope was relevant because it largely covered the periods of Rivera and Gutierrez’s employment, and because post-charge information may provide “essential context” against which to assess Aerotek’s employment practices during their employment. Id. at 27.

Finally, the court ruled that information relating to race, sex, and disability is relevant because other courts have approved subpoenas seeking information on different types of discrimination even when only one type is alleged in the charge.[4] It held that information related to contract employees and other employment practices are relevant to the allegations of discrimination in employment practices because Aerotek’s business is as a recruiter of internal and temporary employees and provider of temporary employees. ASA 27. For these same reasons, the court decided that the subpoena was sufficiently definite and not overly broad. Id. at 27-28.

With respect to burdensomeness, the court found that Aerotek’s argument of undue burden was “entirely conclusory and provide[d] no support for its contention that compliance would be an ‘enormous, time-consuming, labor-intensive and costly effort.’” ASA 28. Specifically, the court decided that Aerotek’s statement that “‘that the burden is obvious on its face,’” ignored that Aerotek had the burden of proving that compliance with the EEOC’s subpoena would “‘threaten the normal operations of its business.’” Id. (quoting EEOC v. Quad/Graphics, Inc., 63 F.3d 642, 648 (7th Cir. 1995)). Consequently, the court held that compliance would not be unduly burdensome. Id. To date, Aerotek has not fully complied with the EEOC’s subpoena.[5]

STANDARD OF REVIEW

A subpoena enforcement proceeding is “designed to be summary in nature.” EEOC v. Tempel Steel Co., 814 F.2d 482, 485 (7^th Cir. 1987). “‘As long as the investigation is within the agency’s authority, the subpoena is not too indefinite, and the information sought is reasonably relevant, the district court must enforce an administrative subpoena.’” EEOC v. United Air Lines, Inc., 287 F.3d 643, 649 (7^th Cir. 2002) (quoting Tempel Steel, 814 F.2d at 485). Consequently, while the court has an “oversight role,” it is “limited.” United Air Lines, 287 F.3d at 649. Accordingly, this Court “review[s] many aspects of a district court’s enforcement decision deferentially.” Id.

Questions of law that do not depend on the district court’s factual findings are reviewed de novo. United Air Lines, 287 F.3d at 649. Hence, if reviewable, Aerotek’s argument that the district court should have refused to enforce the EEOC’s subpoena because the EEOC initially lacked a quorum when it denied Aerotek’s petition to revoke or modify the subpoena, is subject to plenary review. However, a district court’s finding that documents “‘are reasonably relevant to a legitimate agency purpose cannot be overturned absent a showing that the factual determinations on which it is based are clearly erroneous or that the ruling itself constitutes an abuse of discretion. Similarly, court assessments of whether disclosure would be burdensome . . . should only be reversed for abuse of discretion.’” United Air Lines, 287 F.3d at 649 (quoting Dow Chem. Co. v. Allen, 672 F.2d 1262, 1267 (7^th Cir. 1982)).

Summary of argument

Aerotek’s argument that the district court could not entertain the EEOC’s application for subpoena enforcement because the Commission lacked a quorum when it denied Aerotek’s petition to revoke is without merit. A quorum of EEOC commissioners deciding a petition to revoke or modify is not a prerequisite to a subpoena enforcement proceeding. Under Title VII, the only precondition to an enforcement proceeding is the filing of a valid charge. The ADEA has no prerequisites. Aerotek does not dispute that valid charges undergirded this subpoena enforcement proceeding. Hence, the district court properly entertained the Commission’s application for enforcement of its subpoena.

Even if the Commission’s administrative determination on Aerotek’s petition had some effect on the district court’s jurisdiction to act on the Commission’s application for enforcement, the Commission’s handling of the subpoena created no barriers to the district court’s exercise of jurisdiction, and the court’s ruling to this effect should be affirmed. Aerotek waived any objections it had to the EEOC’s determination because it failed to file a timely petition to revoke or modify the subpoena. Moreover, if the petition had been timely, the Commission’s determination would still be valid because Title VII mandates that the business of the Commission must continue despite vacancies and it does not preclude the delegation of authority to fewer than three commissioners. Further, because the two commissioners collectively ruled to enforce the subpoena and a third commissioner’s vote would not have changed the outcome, the lack of quorum had no meaningful effect on the Commission’s determination. Finally, and significantly, a full five-member Commission ratified the Commission’s determination well before the EEOC sought enforcement in the district court, which nullified any procedural flaw in the process by which the Commission reached that determination. Thus, this Court should disregard Aerotek’s jurisdictional argument.

The district court’s determination that EEOC Subpoena CH 09-322 is enforceable is entirely correct and legally sound. Even if certain potential statutory violations were not mentioned in the Rivera and Gutierrez charges, the expansion of the investigation was justified. Information concerning other possible violations surfaced in the context of the Commission’s investigation of those charges. Ten additional charges raising similar allegations against the same employer confirmed the prior statements regarding other violations. Hence, the Commission properly exercised its investigatory authority to determine whether the alleged discrimination was systemic or corroborative of the charges’ allegations. Such an approach comported with the EEOC’s mission to vindicate the public interest in ferreting out unlawful discrimination in the workplace and falls within the EEOC’s broad investigatory authority.

Having established the validity of the subpoena, the district court properly determined that Aerotek failed to meet its burden of proving that compliance with the EEOC subpoena would pose an undue hardship. Aerotek argued that it had already produced thousands of pages of documents and that other requested data was unreliable or incomplete. However, it did not present any evidence that production of the subpoenaed data would threaten or disrupt its business operations, the proper legal standard for demonstrating undue burden in the subpoena context. Accordingly, this Court should affirm the judgment of the district court.

ARGUMENT

I. THE DISTRICT COURT PROPERLY DENIED AEROTEK’S MOTION TO DISMISS.

Questions concerning jurisdiction are reviewed de novo. United Air Lines, 287 F.3d at 649 (reviewing de novo employer’s challenge to district court’s enforcement of subpoena where employer questioned EEOC’s jurisdiction to investigate charge alleging citizenship, instead of national origin, and employer believed an international treaty precluded the investigation). It is questionable whether the quorum issue is a “jurisdictional” issue, and Aerotek has cited no statutory or legal basis for the proposition that a subpoena enforcement proceeding implicates judicial review of the EEOC’s internal processes leading to its final determination on Aerotek’s petition to revoke. As a general rule, “once a charge is filed, . . . under the statute the EEOC is in command of the process.” EEOC v. Waffle House, Inc., 534 U.S. 279, 291 (2002). Hence, "the nature and extent of an EEOC investigation into a discrimination claim is a matter within the discretion of that agency." EEOC v. KECO Indus., Inc., 748 F.2d 1097, 1100 (6th Cir. 1984). Similarly, EEOC administrative decisions are generally unreviewable because they are not binding or self-fulfilling. Cf. McCottrell v. EEOC, 726 F.2d 350, 351 & n.1 (7th Cir. 1984) (“Title VII does not provide either an express or implied cause of action against the EEOC to challenge its investigation and processing of a charge”); Georator Corp. v. EEOC, 592 F.2d 765, 767 (4th Cir. 1979) (an EEOC determination “is lifeless and can fix no obligation nor impose any liability on the plaintiff”). In the subpoena enforcement context, if the respondent believes the Commission’s decision denying its petition to modify or revoke the subpoena is incorrect on procedural or substantive grounds, it can refuse compliance and compel the EEOC to go to the district court for enforcement, as occurred in this case. 42 U.S.C. § 2000e-9 (incorporating 29 U.S.C. § 161(2)); 29 U.S.C.

§ 626(b). Here, even assuming that the existence of a quorum of commissioners could affect the district court’s jurisdiction, the court committed no legal error in deciding that it had jurisdiction to enforce the EEOC’s subpoena. ASA 23.

Relying on New Process Steel v. NLRB, 130 S.Ct. 2635 (2010), Aerotek has argued that the district court did not have jurisdiction to entertain the EEOC’s application for enforcement of the subpoena because the Commission lacked a quorum when it denied Aerotek’s petition to revoke or modify Subpoena No. CH 09-322. Aerotek Br. at 21-27. But New Process Steel is not controlling here for at least four reasons.

First, in New Process Steel, the Board sought judicial enforcement of its adjudicatory decision on unfair labor practices by a two-member panel of the NLRB. 130 S.Ct. at 2639. In contrast, the court in a subpoena enforcement proceeding conducts a de novo review of the EEOC’s enforcement application; it does not review or enforce the Commission’s determination on a respondent’s petition to modify or revoke. To the Commission’s knowledge, no court has applied New Process Steel to a subpoena enforcement proceeding by the NLRB, much less the EEOC.

Second, neither respondent’s petition to revoke or modify the subpoena nor the Commission’s determination on the petition is a prerequisite to a subpoena enforcement proceeding. Under Title VII, “in the case of contumacy or refusal to obey a subpoena issued to any person, any district court of the United States . . ., within the jurisdiction of which said person guilty of contumacy or refusal to obey is found or resides, or transacts business, upon application by the [Commission] shall have jurisdiction to issue to such person an order requiring such person . . . to produce evidence if so ordered[.]” 29 U.S.C. § 161(2) (incorporated in 42 U.S.C. § 2000e-9). Courts have clarified that Title VII only requires that a valid charge be filed prior to issuing a subpoena, EEOC v. Shell Oil Co., 466 U.S. 54, 65 (1984); United Air Lines, 287 F.3d at 650, and Aerotek raises no challenges regarding the validity of the charges filed by Rivera and Gutierrez. Hence, the only predicate for seeking judicial enforcement of a subpoena is the respondent’s failure to comply with the request, and that requirement was certainly met in this case.

Moreover, in this case, Aerotek’s petition to revoke was untimely and its objections to the subpoena waived. An untimely petition is tantamount to no petition. EEOC regulations permit the Commission to seek enforcement of its subpoena in the district court even when no petition has been filed and respondent refuses to comply with the subpoena. 29 C.F.R. § 1601.16(d). Hence, Aerotek’s refusal to comply, not the EEOC’s determination on Aerotek’s petition, establishes the necessary foundation for the Commission’s pursuit of subpoena enforcement in the district court. 42 U.S.C. § 2000e-9.

Third, even if the Commission’s determination is relevant, New Process Steel does not control because the statutory provisions governing the operation of the NLRB and the EEOC are different. At issue in New Process Steel was a vacancy, delegation, and quorum provision of the National Labor Relations Act (NLRA). This provision stated:

The Board is authorized to delegate to any group of three or more members any or all of the powers which it may itself exercise. * * * A vacancy in the Board shall not impair the right of the remaining members to exercise all of the powers of the Board, and three members of the Board shall, at all times, constitute a quorum of the Board, except that two members shall constitute a quorum of any group designated pursuant to the first sentence hereof.

29 U.S.C. § 153(b) (emphasis added). On appeal, Aerotek argues that Title VII, like the NLRA, requires the EEOC to have a quorum of at least three members in order to transact business. Aerotek Br. at 23. Its interpretation of Title VII is erroneous.

Actually, Title VII states that “[a] vacancy in the Commission shall not impair the right of the remaining members to exercise all powers of the Commission . . . .” 42 U.S.C. § 2000e-4(c) (emphasis added). In addition, while Title VII indicates that “three members . . . shall constitute a quorum,” 42 U.S.C. 2000e-4(c), it does not have a delegation provision that restricts the exercise of the Commission’s power to three members. In short, unlike the NLRA, Title VII does not prevent fewer than three members from transacting the business of the agency. Accordingly, the delegation of the Commission’s powers to the two commissioners and their exercise thereof in denying Aerotek’s petition to revoke are supported by the plain language of the statute. See Railroad Yardmasters of Am. v. Harris, 721 F.2d 1332, 1344-45 (D.C. Cir. 1983) (concluding “that a single member of the National Mediation Board may act for the Board pursuant to a validly issued delegation order that is narrowly tailored to prevent the temporary occurrence of two vacancies from completely disabling the Board” based on “a close reading of the plain words of the statute[,]” its legislative history, and the purposes of the Act, and because “the Board is not principally engaged in substantive adjudications”).[6]

Fourth, Aerotek’s quorum argument is purely theoretical, and appears to be advanced merely to cause further delay of the enforcement of the Commission’s subpoena. Cf. Tempel Steel, 814 F.2d at 485 (“[i]f every possible defense, procedural or substantive, were litigated at the subpoena enforcement stage, administrative investigations would be subjected to great delay”). Two commissioners voted to enforce the EEOC subpoena. If a third commissioner had participated, and voted against enforcement, under a majority rules standard, the outcome would be the same, as the district court properly held. In other words, as the Fourth Circuit observed, “any absence of the third member was immaterial[.]” EEOC v. Joseph Horne Co., 607 F.2d 1075, 1076 (4^th Cir. 1979), rev’d on other grounds sub nom. EEOC v. Associated Dry Goods Corp., 449 U.S. 590 (1981).

More importantly, unlike in New Process Steel, where the Board decision rested solely on the votes of its two members, here the EEOC, once it was reconstituted to a five-member commission, ratified all decisions made by the two commissioners, including the denial of Aerotek’s petition in accordance with the Delegation order. Add. 54-2 (Ratification order). Cf. Laurel Baye Healthcare of Lake Lanier, Inc. v. NLRB, 564 F.3d 469, 476 (D.C. Cir. 2009) (suggesting that “[p]erhaps a properly constituted Board . . . [could] minimize the dislocations engendered by [that court’s decision to negate all two-member Board decisions] by ratifying or otherwise reinstating the rump panel’s previous decisions”). Furthermore, the ratified decision issued in April 2010, several months before the Commission sought enforcement of the subpoena in the district court. Thus, the district court therefore properly exercised jurisdiction over this action. [7]

Given that Aerotek has delayed this investigation for 2.5 years despite the EEOC’s concessions, a reversal under these circumstances would be akin to “’plac[ing] a potent weapon in the hands of employers who have no interest in complying voluntarily with the Act, who wish instead to delay as long as possible investigations by the EEOC.’” University of Pa. v. EEOC, 493 U.S. 182, 194 (1990) (quoting Shell Oil Co., 466 U.S. at 81). Put differently, no legitimate purpose would be served by sending this subpoena back to the administrative enforcement process when the district court has already determined that the subpoena is enforceable under controlling legal standards and the five commissioners who already upheld enforcement of the subpoena would likely issue a determination with the same outcome on remand.

II. THE DISTRICT COURT PROPERLY ENFORCED THE EEOC’S SUBPOENA BECAUSE ITS EXPANDED INVESTIGATION WAS A LAWFUL EXERCISE OF ITS AUTHORITY AND THE MATERIAL SOUGHT WAS RELEVANT.

Title VII grants the EEOC the authority to investigate charges of discrimination so long as the evidence sought “relates to unlawful employment practices . . . and is relevant to the charge under investigation.” 42 U.S.C. § 2000e-8(a). The EEOC also is authorized to investigate allegations of age discrimination, whether or not a charge is filed. 29 U.S.C. § 626(a); 29 C.F.R. § 1626; EEOC v. Sidley Austin Brown & Wood, 315 F.3d 696, 701 (7^th Cir. 2002) (unlike Title VII, “the ADEA's grant of investigative authority to the Commission is not cabined by any reference to charges”). To fortify the Commission’s investigative authority, Congress gave the EEOC subpoena power. 42 U.S.C. § 2000e-9; 29 U.S.C. § 626(a). If the respondent refuses to comply with the subpoena, the EEOC may seek enforcement in the district court. 42 U.S.C. § 2000e-9; 29 U.S.C. § 626(b).

The pending appeal now concerns only 6 of the 17 requests listed in the September 2009 subpoena. These requests are:

No. 7 – requesting an electronic database of all individuals who applied for direct employment with Aerotek from six Chicagoland offices, along with certain demographic and contact information from 2006 to present;

Nos. 8 and 9 – requesting an electronic database that identifies the individuals who sought, were hired, or were not hired for contract positions along with their demographic and contact information;

No. 10 – seeking resumes, applications, and any documentation for individuals identified in Requests Nos. 8 and 9; and

Nos. 13 and 14 – seeking documents relating to clients’ requests for contract employees and relating to the job assignments for each client account.

See ASA 33-35. An electronic data base means “a native electronic file submitted on a compact disc (CD-ROM) which can be opened and sorted by Microsoft Excel . . . .” ASA 33 n.1.

Despite the denial of its petition to revoke, modifications the Commission made to the subpoena before instituting the enforcement action, and concessions the Commission has made in an effort to make compliance easier, Aerotek has refused to produce the data sought by the EEOC subpoena. In fact, Aerotek has refused to produce even information it has conceded is relevant to the charge such as data from three offices where the charging parties worked, for a time period covering their employment at Aerotek (2005-2008) and a “reasonable time thereafter,” documents concerning internal employees, and information relating to national origin discrimination. Aerotek Br. at 19 (emphasis added). For this reason, and others stated below, the Commission urges this Court to affirm the district court’s enforcement of the subpoena.

A. The EEOC was authorized to obtain information concerning possible violations other than those alleged in the two national origin discrimination charges because they were uncovered during the investigation of those filed charges.

Indisputably, the EEOC’s authority to investigate is very broad, albeit not plenary. Tempel Steel, 814 F.2d at 485. Under Title VII, when a person charges an employer with individual or systemic discrimination, the EEOC must investigate to determine whether there is reasonable cause to believe that the employer engaged in an unlawful employment practice. 42 U.S.C. § 2000e-5(b). Under the ADEA, the EEOC “shall have the power to make investigations and require the keeping of records necessary or appropriate for the administration of this chapter in accordance with the powers and procedures provided in sections 209 and 211 of this title[.]” 29 U.S.C.

§ 626(a). In other words, “[t]he Commission may, on its own initiative, conduct investigations of employers . . . in accordance with the powers vested in it pursuant to section 6 and 7 of the Act.” 29 C.F.R. § 1626.4.

To this end, the Commission accepts “any statement of position or evidence with respect to the allegations of the charge which the person claiming to be aggrieved . . . or the respondent wishes to submit.” 29 C.F.R. § 1601.15(a). Additionally, the EEOC can receive information concerning possible violations of the employment discrimination laws from any person or source. See 29 C.F.R. § 1601.6(a) (“[t]he Commission shall receive information concerning alleged violations of title VII, the ADA, or GINA from any person”); 29 C.F.R. § 1626.4 (the EEOC “shall also receive information concerning alleged violations of the [ADEA], including charges and complaints, from any source”).

To carry out the investigation, section 709(a) ensures that “the Commission . . . shall at all reasonable times have access to, for the purposes of examination, and the right to copy any evidence of any person being investigated or proceeded against that relates to unlawful employment practices covered by this subchapter and is relevant to the charge under investigation.” 42 U.S.C. 2000e-8(a). Also, as part of the investigation, which is not limited to procedures outlined in this section, 29 C.F.R. § 1601.15(d), “the Commission may also require the person claiming to be aggrieved to provide a statement which includes . . . [f]or each act, policy, or practice alleged to have harmed the person claiming to be aggrieved, a statement of the facts which lead the person claiming to be aggrieved to believe that the act, policy, or practice is discriminatory.” 29 C.F.R. § 1601.15(b)(3). Lastly, the Commission is authorized to issue subpoenas in connection with its investigation. 42 U.S.C. § 2000e-9; 29 C.F.R. § 1601.16(a). If any person fails to comply with the subpoena, the Commission may take steps to compel enforcement. 29 C.F.R. § 1601.16(d).

In its opening brief, Aerotek takes issue with the fact that the district court upheld the EEOC’s requests for information about bases (race, sex, and age) other than national origin, locations where Rivera and Gutierrez did not work, employment practices other than training, promotion, and terminations, its contract employees and corporate clients, and for temporal periods exceeding the charging parties’ employment.[8] See generally Aerotek Br. at 29-32. The district court’s ruling should be affirmed.

This Court has recognized that “courts uniformly uphold the relevancy of EEOC subpoenas seeking information about discrimination not specifically alleged in the charge.” EEOC v. Bay Shipbldg. Corp., 668 F.2d 304, 311 n. 8 (7th Cir.1981); see also EEOC v. Kronos Inc., 620 F.3d 287, 297 (3d Cir. 2010) (EEOC “is not required to ignore facts that support additional claims of discrimination). As long as the EEOC is seeking material which might “cast light” on the allegations against the employer, the material is discoverable. Shell Oil, 466 U.S. at 69.

More specifically, since discrimination on the basis of race or national origin is by definition class discrimination, the existence of patterns of discrimination in job classifications or situations other than those of the complainants may well justify the inference that the practices complained of were motivated by impermissible factors. See EEOC v. Konica Minolta Bus. Solutions U.S.A., Inc. 639 F.3d 366, 369 (7^th Cir. 2011) (“[w]hen the EEOC investigates a charge of race discrimination for purposes of Title VII, it is authorized to consider whether the overall conditions in a workplace support the complaining employee’s allegations[;] . . . information concerning whether an employer discriminated against other members of the same class for the purposes of hiring or job classification may cast light on whether an individual person suffered discrimination”); EEOC v. Lakeside Bldg. Maintenance, Inc., 255 F.Supp.2d 871, 872-73 (N.D. Ill. 2003) (applying same principle to national origin discrimination). In other words, the Commission’s investigative authority is “broad enough to ensure that the ‘Commission’s ability to investigate charges of systemic discrimination not be impaired.’” Konica, 639 F.3d at 369 (quoting Shell Oil, 466 U.S. at 69).

Here, in seeking enforcement of its subpoena, the EEOC repeatedly asserted that it learned about other potential violations by Aerotek during its investigation of the charges filed by Rivera and Gutierrez. In its application for subpoena enforcement, the Commission stated that “[i]n the course of investigating the Rivera and Gutierrez Charges, Investigator Eric Lamb uncovered evidence to suggest that certain Aerotek employees may have been directed to recruit temporary employees based on prohibited factors such as race, national origin, disability status, and sex.” R. 7-2 at 4, D.1-EEOC Enforcement Appl. at 2¶7. The EEOC investigator specifically declared that “[i[n the course of investigating the Rivera and Gutierrez Charges, I learned that certain Aerotek employees may have been placed into jobs with lower pay and inferior status than similarly situated individuals because of their national origin. I also learned that Aerotek employees may have been directed to recruit temporary employees based on prohibited facts such as race, national origin, disability status, and sex. I obtained witness testimony regarding potential discriminatory conduct at all of Aerotek’s seven locations in Illinois.” R.7-2 at 29, D.4-1, Ex. A-Lamb Decl. at 3¶h. Moreover, in a preliminary injunction hearing in January 2010, the investigator testified that EEOC “uncovered evidence during the Gutierrez and Rivera investigations indicating that there were issues about hiring practices with regard to temporary employees, and recruiters would have a good deal of knowledge as to practices and policies regarding hiring temporary employees.” R.7-2 at 193, D.15-1, Ex. A- P.I. Tr. at 25 (Lamb testimony).

These allegations gave the EEOC “an indication of a realistic expectation rather than an idle hope that something may be discovered.” United Air Lines, 287 F.3d at 653. Accordingly, the Commission properly exercised its authority to investigate allegations provided in statements by the aggrieved parties and witnesses, 29 C.F.R. § 1601.15(b)(3), as well as other potential violations discovered during the course of the Commission’s investigation of the filed charges, and the district court properly determined that the EEOC was well within its authority to pursue this expanded investigation. Konica, 639 F.3d at 369 (authorizing the EEOC to subpoena “evidence concerning employment practices other than those specifically charged by complainants” in the course of its investigation); id. at 370 (“The Commission is required to investigate a person’s charge of discrimination and pursue all relevant leads to determine whether the charge warrants a lawsuit.”); United Air Lines, 287 F.3d at 653 (same).

Finally, the Commission notes that, in the district court, in justifying the expansion of its investigation, EEOC mentioned that its investigator was simultaneously investigating 10 other charges against Aerotek in addition to the Rivera and Gutierrez charges. R.7-2 at 12, D.4, EEOC Enforcement Mem. at 3. For informational purposes and to show how they corroborated Rivera and Gutierrez’s allegations, the EEOC explained to the district court that those charges alleged retaliation, age discrimination, disability discrimination, sex harassment, and race harassment against internal and contract employees at all seven Chicago locations. Id. These additional charges, however, were not --- as Aerotek has asserted --- the sole basis for the expansion decision. Aerotek Br. at 35. Rather, the 10 additional charges substantiated the information uncovered during the investigation of the Rivera and Gutierrez charges that potential violations on other protected bases against internal and contract employees had occurred at Aerotek’s seven Chicagoland locations, and confirmed the need for an expanded investigation.

Therefore, although the EEOC could have referenced the 10 charges on Subpoena CH 09-322 to further justify the expansion of its investigation, it was unnecessary. In short, EEOC properly calibrated its investigation when it named only the Rivera and Gutierrez charges on the subpoena. The district court therefore properly found that the expanded investigation was a valid exercise of the Commission’s authority.

Hence, there is no merit to Aerotek’s contention that the district court erred when it “did not and could not consider whether the EEOC’s demands were relevant to any other charge” because “the EEOC did not even offer the names of the charging parties, the dates the charges were filed, the locations where the charging parties worked, the positions the charging parties held, or a description of their individual charge allegations.” Aerotek Br. at 34. As previously explained, the Commission mentioned and summarized the contents of the 10 additional charges against Aerotek in its application for subpoena enforcement. However, the EEOC’s reference to those charges did not require further disclosure, and the Tenth Circuit’s recent decision to the contrary cannot be squared with Title VII’s confidentiality provisions. See EEOC v. Burlington N. Santa Fe R.R., 2012 WL 604149 at *2-*3 & n.2 (10^th Cir. 2012).

Confidentiality provisions in Title VII make it unlawful for the EEOC to disclose the names, locations, and allegations of the charging parties or to submit the charges into evidence, as Aerotek contends that it should have done. Specifically, Title VII states that “[c]harges shall not be made public by the Commission[;] * * * Any person who makes public information in violation of this subsection shall be fined not more than $1,000 or imprisoned for not more than one year, or both.” 42 U.S.C. §2000e-5(b). This confidentiality mandate is reiterated in Section 709, which states: “[i]t shall be unlawful for any officer or employee of the Commission to make public in any manner whatever any information obtained by the Commission pursuant to its authority under this section prior to the institution of any proceeding . . . involving such information. 42 U.S.C. § 2000e-8(e) (emphasis added). And this Court has acknowledged this standard. See Bay Shipbuilding, 668 F.2d at 312 (recognizing that Title VII imposes criminal penalties for EEOC personnel who publicize information obtained in course of investigating charges of employment discrimination, and therefore ruling that employer’s refusal to release confidential documents is not justified).

Even though the confidentiality provision does not apply if the charges, such as those by Rivera and Gutierrez, are part of a proceeding under the statute, disclosure of the other 10 charges in this case would not have been permissible. See 29 C.F.R. § 1601.22 (“Neither a charge, nor information obtained during the investigation of a charge of employment discrimination under title VII, the ADA or GINA . . . shall be made matters of public information prior to the institution of any proceeding under title VII, the ADA, or GINA involving such charge or information.”); 29 C.F.R. § 1626.4 (“The identity of a complainant, confidential witness, or aggrieved person on whose behalf a charge was filed will ordinarily not be disclosed without prior written consent unless necessary in a court proceeding.”). Had the Commission submitted the 10 charges into evidence, they would have become public documents, and the EEOC would have been in breach of the confidentiality provisions. Pepsico, Inc. v. Redmond, 46 F.3d 29, 31 (7th Cir. 1995) (“judicial proceedings held, and evidence taken, on the way to a final decision are presumptively in the public domain”). The 10 charges described to the court were not formally part of this subpoena enforcement proceeding nor were they referenced on the subpoena. Hence, the Commission’s nondisclosure in this enforcement proceeding was appropriate.

In sum, the bases of the Commission’s initial and expanded investigation were the Rivera and Gutierrez charges, and these charges were referenced on the subpoena and introduced as evidence in the subpoena enforcement proceeding. Thus, the district court acted properly when it did not rely on the 10 charges to determine whether the requested information was relevant.

B. The information requested by the subpoena is relevant to the filed charges and not overbroad.

When the EEOC is conducting investigations, it is subject to a broad relevance standard that permits the EEOC to request and obtain any information “that might cast light on the allegations against the employer.” Shell Oil, 466 U.S. at 68-69; United Air Lines, 287 F.3d at 652. The EEOC's burden in demonstrating relevance is not onerous. Shell Oil, 466 U.S. at 68; United Air Lines, 287 F.3d at 654.

In this case, the allegations at issue are that Aerotek (1) “segregated, denied training, denied promotions” to Rivera and subjected him to different terms and conditions of employment because of his Hispanic national origin and subjected him to retaliation and constructive discharge, ASA 30; (2) discriminated against Gutierrez in terms and conditions of employment because of his Mexican national origin, harassed him and engaged in retaliation against him because of his protected activity, and constructively discharged him, ASA 29; (3) directed “certain Aerotek employees to recruit temporary employees based on prohibited factors such as race, national origin, disability status, and sex,” R. 7-2 at 4, D.1-EEOC Enforcement Appl. at 2¶7; and (4) placed certain Aerotek employees into jobs with lower pay and inferior status than similarly situated individuals because of their national origin. R.7-2 at 29, D.4-1-Lamb Decl. at 3¶h.

All of these allegations were either derived from the Rivera or Gutierrez charges or uncovered during the Commission’s initial investigation of them. Thus, contrary to Aerotek’s contention, the investigation is not based “simply on the whim and caprice of the EEOC[.]” Aerotek Br. at 28. Rather, the investigation is focused on information related to the charges referenced in Subpoena CH 09-322.

Given the systemic nature of the allegations that certain other Aerotek employees were subjected to national origin discrimination in various terms or conditions of employment , EEOC was obligated to investigate these allegations because they could cast light on the allegations in the Rivera and Gutierrez charges. Gen. Tel. Co. of the N.W., Inc. v. EEOC, 446 U.S. 318, 331 (1980) (“Any violations that the EEOC ascertains in the course of a reasonable investigation of the charging party's complaint are actionable.”); Kronos, 620 F.3d at 297 (“Once the EEOC begins an investigation, it is not required to ignore facts that support additional claims of discrimination if it uncovers such evidence during the course of a reasonable investigation of the charge.”). Hence, the information requested by the subpoena was both relevant and tailored to the filed charges.

Notwithstanding, Aerotek challenges the relevance of the subpoenaed information and argues first that it should not have to produce information concerning the offices in Rosemont, Oak Brook, Gurnee, and Chicago because neither Rivera nor Gutierrez worked at those locations. Aerotek Br. at 29. As the district court properly noted, since Rivera and Gutierrez alleged they were subjected to discriminatory treatment during their employment at Aerotek and they worked at three different locations (Schaumburg, Crystal Lake, and Rockford), Aerotek’s treatment of its employees at all locations in the Chicago area may cast light on whether the alleged discrimination they experienced was part of a widespread pattern. ASA 25. Furthermore, witnesses who participated in the Rivera and Gutierrez investigation alleged that discrimination occurred at all seven offices. R.7-2 at 29, D.4-1-Lamb Decl. at 3¶h. Thus, Aerotek’s argument that the subpoena should be restricted to three offices is too restrictive, and is inconsistent with this Court’s precedent.

Indeed, in EEOC v. Konica Minolta Business Solutions USA, Inc., 639 F.3d 366 (7^th Cir. 2011), this Court addressed a similar argument challenging the geographical scope of an EEOC subpoena. In Konica, the Commission received a discrimination charge from a Black salesman who had been terminated by Konica. The charge alleged that Konica had “subjected him to different terms and conditions of employment, disciplined him for not meeting a sales quota, and ultimately fired him after he filed a race-discrimination complaint[.]” 639 F.3d at 367. The charging party had worked at Konica’s Tinley Park site, which is now closed. Id. During its investigation of the charge, the Commission learned that Konica had three facilities in the Chicago area in addition to the Tinley Park site, id. at 367, that there were only six African American employees out of 120 total employees in the identified facilities, all six were employed at the Tinley Park site, and that the Tinley Park facility maintained segregated sales teams. Id. at 367-68. This information led the Commission to issue a subpoena requesting records relating to the hiring of sales personnel at all four facilities. Id. at 368.

On appeal, this Court rejected Konica’s argument that the subpoena’s geographical scope was too broad. Konica, 639 F.3d at 370. It ruled that in limiting its inquiry to the four Konica branches in the Chicago area, the information sought by the EEOC was properly tailored to matters within its authority. Id. Accordingly, because EEOC’s geographical request in this case is limited to locations in the Chicago area and thus in the same state, the requested information is neither irrelevant to the charges under investigation nor overly broad. Cf. Burlington Northern, 2012 WL 604149, at *3 (suggesting that an investigation of offices in the state is justifiable).

Likewise, Aerotek’s argument that it should not have to provide information about every job position other than the Recruiter position held by Rivera and Gutierrez and every employee (internal and contract) falls short. First, solicitation of information about non-Recruiter positions is relevant to the underlying charges because charging party Rivera asserted that he was discriminated against during his employment with Aerotek and during that time, he held the positions of Sourcing Specialist, Premise Manager, Recruiter I, and Recruiter II. Aerotek Br. at 6-7.

Second, during the investigation of the Rivera and Gutierrez charges, EEOC was informed that “certain Aerotek employees” were paid less and placed in inferior jobs because of their national origin. In that evidence of national origin discrimination in job placement and pay with respect to internal or contract employees regardless of job position is systemic in scope and would shed light on Rivera and Gutierrez’s allegations that they were subjected to different terms and conditions of employment because of their national origin, the district court’s ruling that Aerotek must produce information about all employees and job classifications is justified. Konica, 639 F.3d at 369 (where charge under investigation alleged race discrimination in “terms and conditions of employment,” information indicating that employer discriminates in hiring or in assigning employees to its various facilities will advance the agency’s investigation into possible discrimination against the charging party, “as well as any more general case it might choose to bring,” even though charging party did not allege hiring discrimination); Lakeside Bldg., 255 F.Supp.2d at 873 (“since discrimination on the basis of race or national origin is by definition class discrimination, ‘the existence of patterns of racial discrimination in job classifications or hiring situation (sic) other than those of the complainants may well justify the inference that the practices complained of’ were motivated by impermissible factors”) (quoting Blue Bell Boots, Inc. v. EEOC, 418 F.2d 355, 358 (6th Cir.1969)).

Even when the Commission is investigating a charge that explicitly alleges certain employment practices, most courts, including this one, have allowed the agency to investigate whether the employer has discriminated in other personnel actions against other employees. United Air Lines, 287 F.3d 653 (citing with approval EEOC v. Roadway Express, Inc., 750 F.2d 40, 43 (6th Cir.1984) (“evidence concerning employment practices other than those specifically charged by complainants may be sought by an EEOC administrative subpoena”)); EEOC v. Fed. Exp. Corp., 558 F.3d 842, 855 (9^th Cir. 2009) (rejecting argument that “subpoena is overbroad because the EEOC ‘demand[s] personnel information concerning applicants, hiring, job analyses, evaluations, demotions, training, and terminations, [that] ha[ve] no relevance to the specific claims of discrimination asserted in the charges.’ The subpoena need not request only evidence that is specifically relevant to proving discrimination; the requested information need only be ‘relevant and material to the investigation.”). Moreover, as this Court stated in Konica, the EEOC, in its charge investigations, is “authorized to consider whether the overall conditions in a workplace support the complaining employee’s allegations.” 639 F.3d at 369.

Similarly, if the data shows that Aerotek received and complied with discriminatory client requests, that information would advance EEOC’s ability to determine whether Aerotek condones and practices discrimination in job assignments and thus whether it discriminated against Rivera and Gutierrez by denying them promotions or training opportunities based on their national origin. Konica, 639 F.3d at 370 (holding that hiring and employee assignment data is not irrelevant to a charge alleging disparate treatment, disparate discipline, and discriminatory discharge); Blue Bell, 418 F.2d at 358 (“We consider an employer’s ‘pattern of action’ relevant to the Commission’s determination of whether there is reasonable cause to believe that the employer has practiced racial discrimination.).

Indeed, in Konica, this Court observed that in alleging the charging party suffered disparate treatment in “terms and conditions” of his employment, the charging party essentially alleged “both a specific instance and such a pattern of race discrimination.” Konica, 639 F.3d at 369. Moreover, this Court clarified that the relevancy question is not whether hiring discrimination was specifically alleged, “but instead is whether information regarding Konica’s hiring practices will ‘cast light’ on [the] race discrimination complaint.” Id. As a result, this Court had “no trouble concluding that the information the EEOC [sought] meets that standard.” Id.

In this Court’s view, information regarding whether Konica discriminated in hiring or job placement would assist the EEOC in determining whether the company had discriminated against the charging party. Id. at 37. The data also would advance the Commission’s investigation into the veracity of the “terms and conditions” allegation and clearly did not support a finding that the Commission had “embarked on the proverbial fishing expedition.” Id. Given that the Commission’s subpoena in this case focuses on Aerotek’s hiring and job placement to determine whether Rivera and Gutierrez were subjected to different treatment and “terms and conditions of employment” because of their national origin, the requested information is within the purview of Shell Oil.

Next, Aerotek’s argument that the subpoena should be limited to national origin because information regarding race, sex, and age is irrelevant to the filed charges, Aerotek Br. at 30, is without merit. As the district court noted, “’[t]he EEOC is entitled to information that “may provide a useful context” for evaluating employment practices under investigation[.]’” ASA 26 (quoting EEOC v. Kronos, Inc., 620 F.3d 287, 298 (3d Cir. 2010)). The district court is correct.

Information relating to race, sex, and age is relevant to the national origin charges because if Aerotek is unlawfully discriminating on these bases with respect to its internal and contract employees during the same period that Rivera and Gutierrez worked for Aerotek, that would add credibility to Rivera and Gutierrez’s allegations that Aerotek discriminated against them in their terms and conditions of employment. As one court observed, the phrase “terms, conditions, or privileges of employment” is “an expansive concept which sweeps within its protective ambit the practice of creating a working environment heavily charged with ethnic or racial discrimination.” Rogers v. EEOC, 454 F.2d 234, 238 (5^th Cir. 1971) (recognizing that “Congress chose neither to enumerate specific discriminatory practices, nor to elucidate in extenso the parameter of such nefarious activities”), disapproved on other grounds, Shell Oil, 466 U.S. at 63 n.11. In that a liberal reading of the EEOC’s investigative mandate enables the Commission to fulfill its mission of ferreting out unlawful discrimination in the workplace, even that which was not mentioned in the charges, the district court’s decision to allow the EEOC to investigate broadly effectuates the purpose of the laws.

Indeed, in Tempel Steel, this Court recognized the relevance of the sex and national origin of job applicants and newly hired employees even though the charge under investigation alleged only race discrimination. 814 F.2d at 486 n.9. In reaching this conclusion, this Court cited to Bay Shipbuilding Corp., which had held that “courts uniformly uphold the relevancy of EEOC subpoenas seeking information about discrimination not specifically alleged in the charge.” 668 F.2d at 311 n.8 (internal citations omitted).

Similarly, the Tenth Circuit held that information on national origin was relevant to charge alleging race and gender discrimination. EEOC v. Citicorp Diners Club, Inc., 985 F.2d 1036, 1039 (10^th Cir. 1993). In its view, to exclude the national origin information from the subpoena “is too narrow a reading of EEOC's investigative authority. The EEOC seeks to ‘vindicate the public interest, which is broader than the interest of the charging parties.’” Id. (quoting EEOC v. Kimberly-Clark Corp., 511 F.2d 1352, 1361 (6th Cir. 1975)). Additionally, information concerning Aerotek’s treatment of its employees in other protected groups would provide critical comparative data needed to establish whether Aerotek’s reasons for failing to train or promote Rivera or for segregating him or other persons of Hispanic origin are pretextual.

Furthermore, such information would be material to the allegations of possible violations uncovered during the course of the Commission’s investigation of Rivera and Gutierrez’s charges. See EEOC v. A.E. Staley Mfg. Co., 711 F.2d 780 (7th Cir. 1983) (holding it’s sufficient that material subpoenaed by agency touches matter under investigation, even though material may not be considered evidence as term is employed in the courtroom). Likewise, the information would enable the EEOC to assess whether Aerotek is maintaining a hostile work environment, as Rivera charged when he alleged that he was harassed after he engaged in protected activity, and generally, be highly probative of the type of workplace to which he and Gutierrez were subjected. Konica, 639 F.3d at 369 (“When the EEOC investigates a charge of race discrimination for purposes of Title VII, it is authorized to consider whether the overall conditions in a workplace support the complaining employee's allegations.”).

Lastly, investigation of these other bases would comport with the EEOC's role in vindicating the public interest. The EEOC's investigatory authority serves a greater purpose than just investigating a charge on behalf of an individual. See Waffle House, 534 U.S. at 287. The EEOC “is not merely a proxy for victims of discrimination[;] . . . [w]hen the EEOC acts, albeit at the behest of and for the benefit of specific individuals, it acts also to vindicate the public interest in preventing employment discrimination.” General Tel. Co. of the Nw., Inc. v. EEOC, 446 U.S. 318, 326 (1980). Accordingly, this Court should “decline [Aerotek’s] invitation to straitjacket the EEOC into an artificially narrow survey of [Aerotek’s] employment records[.]” Recruit USA, 939 F.2d at 756. Courts have ruled that the relevancy determination undergirding the Commission’s subpoena authority should be interpreted “expansively,” New Orleans Steamship Ass’n. v. EEOC, 680 F.2d 23, 26 (5^th Cir. 1982), and the demand for race, sex, and age information in this case was relevant, definite, and related to the expanded investigation of Rivera and Gutierrez’s charges. Thus, this Court should affirm enforcement of the Commission’s subpoena. Accord EEOC v. UPMC, 2012 WL 1010856, at *4 (3d Cir. Mar. 6, 2012) (“if the EEOC meets its burden to demonstrate that the information is relevant to Gailey’s charge, as it construes her allegations, it is entitled to an order enforcing the subpoena notwithstanding that the information may allow it to explore other claims of discrimination against UPMC”).

To the extent that Aerotek takes particular exception to the Commission’s request for date of birth information as relevant to the Rivera and Gutierrez charges, the Commission again reiterates that this Court has allowed the Commission to expand its investigation beyond the allegations in the filed charges. However, if this Court were to conclude that the demographic information about the age of the applicants is not strictly relevant to the Rivera and Gutierrez charges, the Commission notes that this Court held 29 U.S.C. § 626(a) authorizes the EEOC to investigate potential age discrimination based on information from any source and to enforce subpoenas in the furtherance of those investigations even where no ADEA charge has been filed. See EEOC v. Sidley Austin Brown & Wood, 315 F.3d 696, 701 (7^th Cir. 2002) (“the ADEA’s grant of investigative authority to the Commission is not cabined by any reference to charges”). Thus, witness testimony about possible age discrimination by Aerotek provided during the course of the Rivera and Gutierrez investigation supports the Commission’s pursuit of age data even if it does not directly relate to their filed charges. Thus, the subpoenaed information was within the Commission’s authority to compel.

III. THE DISTRICT COURT PROPERLY FOUND THAT AEROTEK’S COMPLIANCE WOULD NOT BE UNDULY BURDENSOME.

Finally, Aerotek opposes enforcement of the subpoena on the ground that it is unduly burdensome. Aerotek Br. 35-37. Aerotek contends first that the district court imposed the wrong legal standard for assessing undue burden. Id. at 35. Specifically, Aerotek argues that it is not required to show that “’compliance [with the subpoena] would threaten the normal operations of its business.’” Id. (citing EEOC v. Quad/Graphics, Inc., 63 F.3d 642, 648 (7^th Cir. 1995)). Rather, Aerotek contends that the correct standard “requires the district court ‘to weigh the likely relevance of the requested material to the investigation against the burden to [the respondent] of producing the material.’” Id. (quoting United Air Lines, 287 F.3d at 654).

Under this standard, Aerotek asserts that “it is clear that compliance with the scope and substance of the subpoena would impose a great and unwarranted burden on Aerotek” because a sample of information responsive to categories 7-10 for just one location and a two-year period took “several months and hundreds of hours” and “generated 13,000 pages of documents and hundreds of rows of electronic data.” Id. at 35-36. Aerotek argues that if it had to respond fully to the EEOC subpoena, “production would encompass more than 260,000 pages and would take more than two years to complete.” Id. at 36. Aerotek’s arguments are speculative and therefore inadequate to meet its burden of proof.

Contrary to Aerotek’s argument, the district court applied the correct legal standard. It is established law in this Circuit that to demonstrate undue burden in subpoena enforcement proceedings, the respondent must show that “compliance would threaten the normal operation of a respondent's business.” Bay Shipbuilding Corp., 668 F.2d at 313. Contrary to Aerotek’s argument, Aerotek Br. at 35, nothing in United Air Lines negates or undermines this standard. Instead, United Air Lines endorsed the Bay Shipbuilding standard, 287 F.3d at 653, and only clarified that “if the employer ‘carries the difficult burden of showing that the demands are unduly burdensome or unreasonably broad,’” id. (emphasis added), the district court should consider the cost of compliance and attempt to alleviate this burden by “weigh[ing] the likely relevance of the requested material to the investigation against the burden to [the respondent] of producing the material.” Id. at 654. Thus, Aerotek must satisfy the Bay Shipbuilding standard and prove that compliance with the EEOC’s subpoena would threaten or disrupt the operations of its nationwide company of 77,000 contract employees and 6,500 internal employees before relevancy of the subpoenaed material is considered. This it did not and cannot do.

Aerotek cannot meet the Bay Shipbuilding undue burden standard, as the district court correctly found, because its burdensomeness arguments on appeal are even more cursory and unsubstantiated than those presented in the district court. On appeal, Aerotek repeatedly refers to the 13,000 pages of documents it produced as evidence of undue burden. Aerotek Br. at 4, 13, 20, & 36. This argument is misleading because the subpoena requested electronic databases of information, not hard copies in response to Requests 7-9. ASA 33-34. In neither its district court opposition nor on appeal has Aerotek ever stated that it could not create or produce an electronic database of the information sought in Requests Nos. 7-9. To the contrary, in September 2009, Aerotek indicated that to create the electronic database, it “would have to collect electronic information for and hard copy documents from each of the six locations” and “code[ them] into electronic format.” R.7-2 at 52, D.4-1, Ex.4-Aerotek Req. to Revoke at 5. Id. In its opinion, it would only “take weeks, perhaps months, to gather this information.” Id. This admission also contradicts Aerotek’s first-time argument that it would take “two years” to produce the subpoenaed data.

Despite Aerotek’s admitted ability to produce the requested information in an electronic format, it has continued to refuse production, to claim that the documents or electronic information cannot be converted to a searchable database, or to bury the Commission in thousands of pages of unsearchable paper. In that the Commission knows, at a minimum, that Aerotek uses Peoplesoft to collect and archive information requested by the subpoena based on its pursuit of personnel with this experience,[9] the Commission’s request for electronic databases of the information sought by Requests Nos. 7-9 is not unduly burdensome. Peoplesoft records EEO data and is setup to deliver reports because many employers use it to deliver EEO-1 reports to the EEOC. Also, all data entered into PeopleSoft can be easily exported to electronic databases. Therefore, this Court should mandate that Aerotek comply with this aspect of the subpoena within two months so that the EEOC can complete this investigation expediently and determine whether there is any evidentiary support for the charged allegations.

In the event certain data actually cannot be converted to an electronic database, the Commission is still entitled to its production even if it results in “260,000 pages” as Aerotek contends. Aerotek Br. at 36. As one court of appeals observed, “[s]ome burden on subpoenaed parties is to be expected and is necessary in the furtherance of the agency’s legitimate inquiry and the public interest.” FTC v. Texaco, Inc., 555 F.2d 862, 882 (D.C. Cir.) (en banc), cert. denied, 431 U.S. 974 (1977). See also Bradley Lumber Co. v. NLRB, 84 F.2d 97, 100 (5^th Cir.) (an investigation may “cause some inconvenience” but this is “part of the social burden of living under government”), cert. denied, 299 U.S. 559 (1936).

In addition to complaining about the volume of information sought, as it did in the district court,[10] Aerotek complains that the burden to comply with Subpoena CH 09-322 is “unquestionably high” because “certain information which is available to produce is incomplete, and as such, of limited utility.” Aerotek Br. at 36. Notably, incompleteness and unreliability of the requested information are not impediments to production nor demonstrative of any hardship or undue burden to the company. And, whether such incomplete information is useful in the investigation is a decision to be made by the EEOC, not the respondent. See EEOC v. Recruit USA, 939 F.2d 746, 756-57 (9^th Cir. 1991) (“‘an alleged perpetrator of discrimination cannot be allowed to pick and choose the evidence which may be necessary for an agency investigation’”). Thus, Aerotek has not shown undue burden and after two years of negotiations, modifications, and concessions, Aerotek’s non-production of the subpoenaed information is completely unacceptable.

Understandably, if Aerotek cannot produce certain information at all because data was “modified or deleted in the ordinary course of business such that the content differs from what existed when decisions were made,” Aerotek Br. at 36, noncompliance is excusable. Bay Shipbuilding Corp., 668 F.2d at 313 (“If a respondent lacks the information necessary to respond to part of a subpoena, of course it would be excused pro tanto.”). Production of existing and current documents, albeit incomplete or of limited utility, however, is still appropriate, and Aerotek has made no argument that such production would pose any hardship. R.7-2 at 57-58, D.4-1, Ex. 4-Aerotek Req. to Revoke at 10-11 (objecting only on relevancy and overbreadth grounds). Accordingly, because Aerotek’s burdensomeness arguments “fall[] far short of what is required to modify or quash a subpoena,” Konica, 639 F.3d at 371, the district court did not abuse its discretion in holding that Aerotek failed to demonstrate that compliance with the subpoena would be unduly burdensome. ASA 28; United Air Lines, 287 F.3d at 649 (court assessments of whether disclosure would be burdensome should only be reversed for abuse of discretion).

CONCLUSION

The purpose of an EEOC investigation is “to determine whether probable cause or reasonable cause to bring a discrimination charge exists.” United Air Lines, 287 F.3d at 652 (internal citations omitted). To enable the EEOC to determine whether there is reasonable cause to believe that Aerotek subjected Rivera and Gutierrez to national origin discrimination, retaliation, harassment, and constructive discharge, Congress has conferred upon the Commission a broad right of access to relevant evidence. Fed. Express, 558 F.3d at 856. The information requested by Subpoena CH 09-322 is not overbroad and is focused on information material to the allegations in the subpoenaed charges and uncovered during the investigation of those charges. Further, Aerotek has failed to demonstrate that its production would cause an undue burden. Therefore, the Commission urges this Court to affirm the district court order enforcing Subpoena CH 09-322 in its entirety and to set a deadline for electronic database and document production.

[1] The district court’s record for the subpoena enforcement proceeding was given a single record designation of R.7-2 on this Court’s docket. Although the annotated district court docket indicates consecutive pagination, none appears on the actual documents. Accordingly, to assist in locating the cited documents, this brief uses the electronic pdf page associated with R.7-2 along with the district court docket number (“D.”), name of the document, and original document page. If any of the documents are part of Aerotek’s Short Appendix (ASA), the brief cites those pages instead.

[2] In addition to refusing to comply with the subpoena, Aerotek also forbade its Illinois recruiters, including non-supervisory recruiters, from speaking to the EEOC investigator without Aerotek’s counsel present. Consequently, on December 14, 2009, EEOC filed a petition for a preliminary injunction. On January 19, 2010, Aerotek agreed to tell its non-managerial recruiters that they could participate in the EEOC’s investigation without Aerotek counsel present. EEOC withdrew its petition. R.7-2 at 32, D.4-1, Ex.A-Lamb Decl. at 6¶¶9-10.

[3] The district court’s decision is published at 2011 WL 124266.

[4] The Commission believes that when the district court included disability in the list of approved data, it really meant to include age because the EEOC subpoena did not request disability information and the district court acknowledged the age request on ASA 25.

[5] Since filing its Notice of Appeal, Aerotek has produced the two sample client contracts in compliance with the modified version of Request No. 12.

[6] In New Process Steel, the Supreme Court also determined that it had not been the practice of the NLRB to transact agency business with only two commissioners. 130 S.Ct. at 2642 n.3. Aerotek has produced no evidence in this case that two commissioners had never exercised the authority of the EEOC before.

[7] The Commission notes that Aerotek takes issue with the fact that the delegation and ratification documents were not made part of the formal record or “authenticat[ed].” Aerotek Br. at 26. Although the delegation and ratification orders are not part of the district court’s record, their omission in no way undermines the district court’s denial of Aerotek’s motion to dismiss. The district court decision indicates that the judge relied on the oral argument of EEOC’s counsel who explained the delegation and ratification process, and not on the actual delegation and ratification orders. ASA 19. Also, during the subpoena enforcement hearing, EEOC’s trial attorney presented Aerotek’s attorneys and the district court judge with copies of the delegation and ratification orders. At no point in this proceeding did Aerotek object to the EEOC ‘s submission of these orders nor did it object to the district court’s review of them. ASA 5-14. Therefore, this Court should treat Aerotek’s challenge to the authenticity of the delegation and ratification orders as waived. For the convenience of the Court, EEOC has placed the redacted documents in the addendum in the event there is a need to review them. See Add. 54-1 & 54-2.

[8] As to the temporal scope of the subpoena, Aerotek states that “[a] review of the Gutierrez and Rivera charges shows that they are narrow and relate only to each charging party’s individual circumstances between July 2007 and May 20, 2008.” Aerotek Br. at 29. Beyond this, Aerotek offers no argument on appeal as to why the subpoena’s temporal scope of 2006- present is irrelevant or overbroad as it asserted in the district court. Hence, this Court should treat this issue as abandoned. Even if Aerotek’s argument were not waived, the law is clear that “[e]vidence relat[ing] to the employment practice under investigation prior to and after [the] charge[s] provides valuable context that may assist the EEOC in determining whether discrimination occurred.” Kronos, 620 F.3d at 298; see also EEOC v. Roadway Express, Inc., 261 F.3d 634, 642 (6^th Cir. 2001) (enforcing EEOC subpoena for information both before the alleged discrimination took place and after the charge of discrimination; “it is not uncommon for the EEOC to receive information concerning events that took place up to three or four years before the date when the discrimination allegedly took place”).

[9] See, for example, Aerotek’s job announcements: http://administrative.thingamajob.com/jobs/Connecticut/Administrative-Assistant/2507017 ("Assist with data entry of personal data updates, starts and finishes in PeopleSoft"); http://information-technology.thingamajob.com/jobs/Texas/HRIS-Analyst/2509623 ("Managing timecard audit and collection (including contacting contractors and/or clients for missing timecards) in PeopleSoft and AHCS.").

[10] There, Aerotek offered no evidence to support its conclusion that compliance “would be an enormous, time-consuming, labor-intensive and costly effort.” R.7-2 at 130, D.14-Aerotek Opp. at 13. Instead, Aerotek complained that it “has no complete or reliable way to identify individual candidates for hire in response to Request Nos. 7 and 8” and that “it cannot ensure that the resumes on file for those individuals (Subpoena Request No. 10) were representative of the records in the Company’s possession at the time employment decisions were made.” Id.