United States Court of Appeals,
Eleventh Circuit.
No. 95-4227
Non-Argument Calendar.
UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-
Appellee,
v.
TIRE KINGDOM, INC., Defendant-Appellant.
April 12, 1996.
Appeal from the United States District Court for the Southern
District of Florida. (No. 94-8635-CV-JAG), Jose A. Gonzalez, Jr.,
Judge.
Before TJOFLAT, Chief Judge, and EDMONDSON and BARKETT, Circuit
Judges.
PER CURIAM:
The sole issue before us on this appeal is whether the Equal
Employment Opportunity Commission can proceed with an investigation
under the Age Discrimination in Employment Act of 1967, Pub.L. No.
90-202, 81 Stat. 602, 29 U.S.C. §§ 621-634 (1994) ("ADEA"), if the
underlying charge of age discrimination is untimely. We conclude
that it can.
I.
Paul Spencer was employed by defendant Tire Kingdom, Inc., as
an assistant manager until he was discharged from his position in
the summer of 1992. On July 26, 1993, more than a year after his
termination, Spencer filed a charge with the EEOC alleging that
Tire Kingdom had fired him from his position because of his age.
The charge included an allegation that a younger employee with
similar performance problems had not been discharged. As a result,
the EEOC commenced an investigation and requested from Tire Kingdom
information necessary to evaluate the allegations of age
discrimination. Specifically, the Commission asked for a written
position statement concerning Spencer's allegations; details of
Spencer's termination and replacement; information concerning
other recent terminations and comparable misconduct; copies of
disciplinary rules and discharge procedures; and information
concerning the size and structure of the company.
The EEOC awaited a response from Tire Kingdom for several
months, but none was forthcoming. Eventually, the Commission sent
a follow-up letter that once again requested the information, and
Tire Kingdom finally responded. In its response, however, Tire
Kingdom refused to provide the information requested, pointing out
that Spencer's charge had been filed more than a year after he had
been terminated. Under section 7(d) of the ADEA (as amended by the
Age Discrimination in Employment Act Amendments of 1978, Pub.L. No.
95-256, § 4(b)(1), 92 Stat. 189, 190), 29 U.S.C. § 626(d), an
individual in the state of Florida must file a charge with the EEOC
within three hundred days after the alleged unlawful practice
occurred. Spencer's charge came after that time limit. Thus, Tire
Kingdom was of the opinion that the lack of a timely charge
prevented the EEOC from conducting an investigation of the age
discrimination claim. The Commission was not satisfied with the
company's response and once again requested the information. In so
doing, it claimed that its authority to investigate claims of age
discrimination existed regardless of the filing of a timely charge.
Tire Kingdom repeatedly refused to supply the information, so
the EEOC issued an administrative subpoena duces tecum. On July
13, 1994, Tire Kingdom filed a motion with the Commission to quash
the subpoena, once again arguing that the investigation could not
proceed absent a timely charge. The Commission denied the motion.
Receiving no further response from Tire Kingdom, the EEOC brought
this action in district court to obtain enforcement of its
subpoena. After hearing argument of counsel, the court ordered
Tire Kingdom to comply with the subpoena. Tire Kingdom now appeals
from this order.
II.
The issue of the EEOC's authority to conduct an investigation
into allegations of age discrimination is a question of law.
Therefore, we review the district court's ruling de novo. See,
e.g., Tisdale v. United States, 62 F.3d 1367, 1370 (11th Cir.1995).
A district court's role in a proceeding to enforce an
administrative subpoena is limited. See EEOC v. Kloster Cruise
Ltd.,
939 F.2d 920, 922 (11th Cir.1991). The court may inquire
into (1) whether the administrative investigation is within the
agency's authority, (2) whether the agency's demand is too
indefinite, and (3) whether the information sought is reasonably
relevant. See United States v. Florida Azalea Specialists,
19 F.3d
620, 622-23 (11th Cir.1994); see also United States v. Morton Salt
Co.,
338 U.S. 632, 652,
70 S. Ct. 357, 368,
94 L. Ed. 401 (1950).
This appeal involves the first inquiry: whether the Commission has
the authority to conduct the challenged investigation.
We begin with the statute, which provides that
[t]he [Equal Employment Opportunity Commission] 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 9 and 11 of the Fair Labor Standards Act
of 1938, as amended [29 U.S.C. §§ 209, 211].
ADEA § 7(a), 29 U.S.C. § 626(a). The incorporation of section 9 of
the Fair Labor Standards Act of 1938, ch. 676, 52 Stat. 1060, 1065,
29 U.S.C. § 209, which in turn incorporates sections 9 and 10 of
the Federal Trade Commission Act, ch. 311, 38 Stat. 717, 722-24
(1914), 15 U.S.C. §§ 49, 50 (1994), provides the authority for the
EEOC to subpoena witnesses and documents. Likewise, the
incorporation of section 11 of the Fair Labor Standards Act, 52
Stat. at 1066-67, 29 U.S.C. § 211, gives the Commission the
authority in ADEA cases 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 [the]
Act, or which may aid in the enforcement of the provisions of [the]
Act." Fair Labor Standards Act § 11(a), 52 Stat. at 1066, 29
U.S.C. § 211(a). Thus, the ADEA grants the Commission broad power
to investigate, and nothing in its language suggests that this
power is dependent upon the filing of an employee charge.
Furthermore, we note that section 7(b) of the ADEA, 29 U.S.C. §
626(b), grants the EEOC an independent right to bring suit to
enforce the provisions of the ADEA. An independent investigative
authority logically precedes this right. See EEOC v. American &
Efird Mills, Inc.,
964 F.2d 300, 303 (4th Cir.1992).
Tire Kingdom relies on the statute to support its argument
that the filing of a timely charge is a prerequisite to the
Commission's power to investigate. The company points specifically
to section 7(d), 29 U.S.C. § 626(d), which sets forth certain time
limitations:
No civil action may be commenced by an individual under
this section until 60 days after a charge alleging unlawful
discrimination has been filed with the [Equal Employment
Opportunity Commission]. Such a charge shall be filed—
(1) within 180 days after the alleged unlawful
practice occurred; or
(2) in a case to which section 14(b) [29 U.S.C. §
633(b) ] applies, within 300 days after the alleged
unlawful practice occurred, or within 30 days after
receipt by the individual of notice of termination of
proceedings under State law, whichever is earlier.
ADEA § 7(d), 29 U.S.C. § 626(d). Tire Kingdom's reliance on
section 7(d) is misplaced. Section 7(d)'s time limits apply only
to cases brought under the ADEA by an individual against his or her
employer; by its plain reading, the section does not apply to the
EEOC.1 Thus, despite Tire Kingdom's arguments to the contrary, the
Commission's power to conduct an investigation into claims of age
discrimination is not dependent upon the filing of a charge with
the time requirements of section 7(d) of the ADEA. See American &
Efird
Mills, 964 F.2d at 304.
A review of the caselaw supports the EEOC's position. In
Gilmer v. Interstate/Johnson Lane Corp.,
500 U.S. 20,
111 S. Ct.
1647,
114 L. Ed. 2d 26 (1991), the Supreme Court discussed the issue
of compulsory arbitration of claims filed under the ADEA. In doing
so, the Court observed that
1
Before 1991, the EEOC's right to bring a suit under the
ADEA was subject to certain time limitations. Section 7(e) of
the ADEA, 29 U.S.C. § 626(e), incorporated the statute of
limitations of § 6 of the Portal-to-Portal Act of 1947, ch. 52,
61 Stat. 84, 87-88, 29 U.S.C. § 255. The Civil Rights Act of
1991, Pub.L. No. 102-166, § 115, 105 Stat. 1071, 1079, however,
deleted from § 7(e) the reference to § 6 of the Portal-to-Portal
Act, and thus the statute of limitations no longer applies.
the EEOC's role in combating age discrimination is not
dependent on the filing of a charge; the agency may receive
information concerning alleged violations of the ADEA "from
any source," and it has independent authority to investigate
age discrimination. See 29 CFR §§ 1626.4, 1626.13 (1990).
Gilmer, 500 U.S. at 28, 111 S.Ct. at 1653 (emphasis added). The
Court also recognized that both individuals and the EEOC have the
right to bring actions to enforce the ADEA. See
id. at 27, 111
S.Ct. at 1652-53. It is true that Gilmer does not address the
precise question in this case. Nevertheless, if we were to accept
Tire Kingdom's argument, we would have to conclude that the
Commission has no independent power to investigate under the ADEA.
Such a holding would contradict the statement we quote from
Gilmer.2
The Fourth Circuit and several lower courts have addressed the
question now before us. See, e.g., EEOC v. American & Efird Mills,
Inc.,
964 F.2d 300 (4th Cir.1992); EEOC v. Ritenour Sch. Dist.,
692 F. Supp. 1068 (E.D.Mo.1988); EEOC v. Gladieux Refinery, Inc.,
631 F. Supp. 927 (N.D.Ind.1986). In each of these cases, the court
rejected the employer's argument that the EEOC lacked the authority
to proceed with an investigation in the absence of a charge of
discrimination. We are likewise unpersuaded by Tire Kingdom's
arguments in this case, and the order of the district court is
2
Besides relying on inapposite cases involving actions
brought by individual employees, as opposed to cases involving
actions brought by the EEOC, see, e.g., McClinton v. Alabama By-
Products Corp.,
743 F.2d 1483 (11th Cir.1984), McBrayer v. City
of Marietta,
967 F.2d 546 (11th Cir.1992), Tire Kingdom also
relies on several Title VII cases. These are also inapposite.
Unlike the ADEA, Title VII requires the filing of a charge before
the EEOC can exercise its powers and authority. See Civil Rights
Act of 1964, §§ 706(b), 709(a), 78 Stat. 241, 259, 262, 42 U.S.C.
§§ 2000e-5(b), 2000e-8(a) (1988 & Supp. V 1993).
therefore
AFFIRMED.
