EEOC v. Aerotek, Incorporated , 815 F.3d 328 ( 2016 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 15-1690
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,
Applicant-Appellee,
v.
AEROTEK, INC.,
Respondent-Appellant.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:15-cv-00275— Milton I. Shadur, Judge.
ARGUED DECEMBER 11, 2015 — DECIDED MARCH 4, 2016
Before KANNE, ROVNER, and HAMILTON, Circuit Judges.
ROVNER, Circuit Judge. The Equal Employment Opportu-
nity Commission (“EEOC”) is investigating Aerotek, Inc., a
staffing company, to determine if Aerotek or its clients are
engaged in age-related employment discrimination. In the
course of its ongoing investigation, the EEOC issued two
administrative subpoenas to Aerotek seeking information
2 No. 15-1690
regarding the company’s clients. Aerotek has partially com-
plied with those subpoenas but refuses to supply the EEOC
with all of the information it seeks. The district court granted
the EEOC’s application for enforcement of its subpoenas and
Aerotek appeals. We affirm.
I.
Aerotek is a staffing agency that supplies temporary
workers to its clients. In August 2013, the EEOC began con-
ducting a directed investigation to assess Aerotek’s compliance
with the Age Discrimination in Employment Act of 1967
(hereafter “ADEA” or “the Act”). See 29 U.S.C. § 621 et seq. In
particular, the EEOC sought information regarding Aerotek’s
practices in recruitment, hiring, and placement of workers at
all of the facilities owned and operated by Aerotek and/or its
clients from January 1, 2009 to the present. EEOC also sought
information about Aerotek’s computerized files. The EEOC
served a subpoena on Aerotek requesting for the period from
January 1, 2009 to the present: (1) information about all persons
that Aerotek referred from its Illinois facilities for employment
at Aerotek’s clients; (2) information regarding all job requisi-
tion requests by clients of Aerotek nationwide; (3) information
about persons hired into internal positions at Aerotek’s Illinois
facilities; and (4) documents related to Aerotek’s analysis of its
workforce. Aerotek partially complied with the subpoena,
producing some of the information sought in a database.
EEOC’s initial review of that information revealed hun-
dreds of discriminatory job requests by Aerotek’s clients at 62
No. 15-1690 3
of Aerotek’s 286 facilities.1 For example, one request noted that
the client and his employees were in their twenties and that “a
person in their 40s or 50s would not be a cultural fit.” Another
client was looking for “young entergetic [sic] guys with some
sports knowledge and good attention to detail.” Still another
sought a “Fresh College Grad.” Following its review of this
information, the EEOC issued another request for information
about the individuals who were assigned to the company’s
clients including their names, dates of birth, contact informa-
tion and the names of the clients to whom they were assigned.
Aerotek again partially complied with the request, producing
a generalized form of the information but excluding the names
of the clients and the names and contact information for
workers hired by those clients. In place of that information,
Aerotek created a code system and supplied numerical
identifiers for clients and workers. The EEOC asked Aerotek to
provide that redacted information and Aerotek refused, stating
it would not produce any of the information unless the EEOC
indicated which specific clients and workers it intended to
contact.
1
Aerotek states that it has operated more than 300 offices across the
country and has employed hundreds of thousands of people in temporary
contract positions with its clients since 2008. The company also states that
it produced data to the EEOC regarding its 286 offices. The EEOC
represents that Aerotek has 226 offices. The record does not reveal which
is the correct number but the discrepancy between the EEOC’s stated
number of facilities and the company’s two numbers does not affect the
outcome of the appeal. The EEOC has narrowed its request to the 62
facilities at which it identified potentially discriminatory requests.
4 No. 15-1690
The EEOC then issued the subpoena at issue here, seeking
the names of the clients and workers and contact information
for the workers, but only for the 62 facilities where it had
already identified discriminatory requests. Aerotek refused to
comply with the subpoena and the EEOC sought enforcement
from the district court. The court ordered Aerotek to comply
with the subpoena. Aerotek then produced the names of the
workers and their contact information but did not supply the
names of the clients. The company sought modification of the
district court’s order, which the court denied after hearing
argument on the motion. Aerotek then appealed from the
district court’s order but sought a stay pending appeal. The
district court granted a partial stay pending an attempt at
mediation. After the mediation produced no results, the court
lifted its stay. Aerotek then moved for a stay in this court,
which we denied. We also denied Aerotek’s motion for
reconsideration. At oral argument, Aerotek revealed for the
first time that the company has now produced all of the
requested client information to the EEOC, but wants the EEOC
to return that data.
II.
On appeal, Aerotek asserts that the district court erred in
ordering the company to produce the names of more than
22,000 clients when the vast majority of those clients were not
related in any manner to the hundreds of job requisitions that
the EEOC identified as potentially problematic. Because of the
broad nature of the request, Aerotek objects that the EEOC is
engaged in a fishing expedition totally unrelated to the matter
under investigation. The company contends that it may be
ordered to produce only that information that is relevant to the
No. 15-1690 5
EEOC’s inquiry. Clients who have not made discriminatory
requests, the company contends, are not relevant. The com-
pany fears an unnecessary disruptive effect on its ongoing
business relationship with its clients, and seeks reversal of the
district court’s order.
Because Aerotek has now produced all of the requested
information, we must first consider whether the matter is
moot. An appeal becomes moot when the issues presented are
no longer live or the parties lack a legally cognizable interest in
the outcome. United States Parole Comm’n v. Geraghty, 445 U.S.
388, 396 (1980); Stevens v. Housing Auth. of South Bend, Ind.,
663 F.3d 300, 306 (7th Cir. 2011). When a court's decision can no
longer affect the rights of the litigants in the case before it, the
case becomes moot. Church of Scientology of California v. United
States, 506 U.S. 9, 12-13 (1992) (if an event occurs while a case
is pending on appeal that makes it impossible for a court to
grant any effectual relief to the prevailing party, the appeal
must be dismissed as moot); Stevens, 663 F.3d at 306.
Although Aerotek has already produced all of the re-
quested information to the EEOC, both Aerotek and the EEOC
asserted at oral argument that the matter was not moot
because the court could order the return of the information to
Aerotek. We agree that, although the parties could not be
returned precisely to the status quo ante, the court could fashion
some meaningful relief in these circumstances, including
ordering the return of the information or prohibiting the EEOC
from contacting those of Aerotek’s clients not involved in the
already-identified discriminatory requests. See Church of
Scientology, 506 U.S. at 12-13. The availability of a partial,
6 No. 15-1690
possible remedy is sufficient to prevent the case from being
moot. Church of Scientology, 506 U.S. at 13. Although Aerotek
did not specifically request this relief in its brief, at the time of
briefing the company did not yet know that this court would
also deny a stay pending appeal. Aerotek first asked for the
return of the information at oral argument in this court. To the
extent that the company waived that relief by not requesting it
earlier, the EEOC waived the waiver by conceding that it
would return the information if ordered to do so by this court
and by urging the court to decide the issue on the merits.
United States v. Whitlow, 740 F.3d 433, 439 (7th Cir. 2014) (when
the government fails to argue that a point was not preserved
and instead urges a court to decide an issue on the merits, the
waiver is waived).
We turn then to the merits. We review the district court’s
decision to enforce an agency subpoena for abuse of discretion,
and we review any factual determinations on which the ruling
is based for clear error. E.E.O.C. v. United Air Lines, Inc.,
287 F.3d 643, 649 (7th Cir. 2002); E.E.O.C. v. Quad/Graphics, Inc.,
63 F.3d 642, 645 (7th Cir. 1995). Questions of law are reviewed
de novo. United Air Lines, 287 F.3d at 649. Subpoena enforce-
ment proceedings are designed to be summary in nature.
United Air Lines, 287 F.3d at 649; E.E.O.C. v. Tempel Steel Co.,
814 F.2d 482, 485 (7th Cir. 1987). And a district court’s sub-
poena enforcement function is narrowly limited: in deciding
whether to enforce, “it is sufficient if the inquiry is within the
authority of the agency, the demand is not too indefinite and
the information sought is reasonably relevant.” Dow Chemical
Co. v. Allen, 672 F.2d 1262, 1266-67 (7th Cir. 1982) (quoting
United States v. Morton Salt Co., 338 U.S. 632, 652 (1950)). See also
No. 15-1690 7
United Air Lines, 287 F.3d at 649 (same); Quad/Graphics, 63 F.3d
at 645 (collecting cases). Under this familiar formulation,
known as the Morton Salt test, disclosure may be restricted
where it would impose an unreasonable or undue burden on
the party from whom production is sought. Dow Chemical,
672 F.2d at 1267. “[C]ourt assessments of whether disclosure
would be burdensome and of what restrictions might be
appropriate are decisions within the sound discretion of the
trial court and should only be reversed for abuse of discretion.”
Dow Chemical, 672 F.2d at 1267.
Under these deferential standards, we conclude that the
district court properly enforced the EEOC’s subpoena. Section
626 of the Act authorizes the EEOC “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”
the Fair Labor Standards Act (“FLSA”). 29 U.S.C. § 626(a).
Section 211 of the FLSA, in turn, provides the agency with
broad authority to “investigate such facts, conditions, practices,
or matters as [it] may deem necessary or appropriate to
determine whether any person has violated any provision of
this chapter, or which may aid in the enforcement of the
provisions of this chapter.” 29 U.S.C. § 211(a). Section 209 of
the FLSA incorporates the subpoena power of the Federal
Trade Commission Act. 15 U.S.C. §§ 49-50. There is therefore
no doubt that “the inquiry is within the authority of the
agency.” Morton Salt, 338 U.S. at 652.
On the question of the scope and relevance of the inquiry,
the provisions that we have cited permit the EEOC to “investi-
gate merely on suspicion that the law is being violated, or even
8 No. 15-1690
just because it wants assurance that it is not.” Morton Salt,
338 U.S. at 642-43. Aerotek’s objection to the relevance of the
information must be considered in this context of the EEOC’s
broad power to investigate on suspicion that the ADEA is
being violated, without the necessity of bringing a charge. See
E.E.O.C. v. Sidley Austin Brown & Wood, 315 F.3d 696, 701 (7th
Cir. 2002) (the ADEA's grant of investigative authority to the
Commission is not cabined by any reference to charges). As we
noted above, the EEOC has already identified hundreds of
discriminatory requests by Aerotek’s clients, recorded in
Aerotek’s database. The EEOC states that it wishes to investi-
gate whether Aerotek’s clients also made discriminatory
requests that were not recorded in the company’s database.
That inquiry obviously would be ineffectual if Aerotek refuses
to reveal the names of its clients. See E.E.O.C. v. Shell Oil Co.,
466 U.S. 54, 68-69 (1984) (noting that the relevance requirement
for the EEOC’s investigatory authority is “not especially
constraining,” and has been regularly construed to give the
agency access to virtually any material that might cast light on
the allegations against the employer); E.E.O.C. v. Konica Minolta
Bus. Solutions U.S.A., Inc., 639 F.3d 366, 369 (7th Cir. 2011)
(noting that Shell Oil articulated a generous standard of
relevance for purposes of EEOC subpoenas whereby the
agency need only satisfy a “not particularly onerous” burden
to obtain virtually any material that might cast light on the
allegations against the employer) (quoting United Airlines,
287 F.3d at 652). There is no support in the law or the facts for
the proposition that the EEOC is somehow limited to investi-
gating instances of discrimination that are actually recorded in
No. 15-1690 9
Aerotek’s database.2 The identification of the clients will allow
the EEOC to investigate discriminatory activity that has not
been recorded in the database, information that is clearly
relevant to its investigation. The district court did not abuse its
discretion in determining that the information sought was
relevant to the EEOC’s investigation.
In sum, the inquiry is within the authority of the EEOC and
the information sought is clearly relevant to the agency’s
investigation of age-related discrimination. Aerotek makes no
claim that the request is too indefinite. That leaves only the
question of whether the production of this information would
impose an unreasonable or undue burden on Aerotek. Dow
Chemical, 672 F.2d at 1267. To establish that the EEOC's
subpoena is excessively burdensome, Aerotek must show that
compliance would threaten the normal operation of its
business. Quad/Graphics, 63 F.3d at 648. The actual process of
producing the data imposes little burden on Aerotek because
the company maintains a database containing all of the
requested information. In fact, Aerotek increased the burden
on itself by creating a coding system to mask the identity of
individuals and clients in its earlier non-compliant productions
to the EEOC. Moreover, Aerotek has now produced the
information and makes no claim that the process of producing
the information was unusually difficult or costly. The com-
pany’s only objection appears to be that production of this
2
We reject without discussion the company’s contention that the district
court misapprehended the facts or the legal standards at issue. A review of
the transcripts demonstrates that the court fully understood both the law
and the facts.
10 No. 15-1690
information will harm its business relationships with its clients.
But it provides no basis for this fear and speculation is inade-
quate to establish undue burden.
We therefore conclude that the district court did not abuse
its discretion in ordering Aerotek to comply with the sub-
poena. The judgment of the district court is AFFIRMED.