EQUAL EMPLOYMENT OPPORTUNITY COMMISSION v. FORGE INDUSTRIAL STAFFING INC.
ORDER denying 1 Motion to enforce the administrative subpoena. The Court's order to Show Cause is hereby discharged. Signed by Magistrate Judge Mark J. Dinsmore on 11/24/2014. (CBU)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
EQUAL EMPLOYMENT OPPORTUNITY
FORGE INDUSTRIAL STAFFING INC.,
ORDER ON PLAINTIFF’S APPLICATION FOR ENFORCEMENT OF
This matter comes before the Court on Plaintiff’s motion for enforcement of an
administrative subpoena. For the reasons stated below, the Court DENIES Plaintiff’s motion.
Forge Industrial Staffing (“Respondent”) is a staffing agency that provides temporary
workers. [Dkt. 14 at 2.] On September 16, 2013, Samara Jenkins filed a charge of sexual
harassment and retaliation against Respondent. [Dkt. 2-1.] She alleged that Respondent assigned
her to work at a Pep Boys distribution center, and that in May of 2013, a coworker began
sexually harassing her. [Id.] Jenkins complained to Pep Boys and Respondent, and on June 4,
2013, Respondent informed her that Pep Boys had terminated her assignment. [Id.]
The Equal Employment Opportunity Commission (“EEOC” or “Plaintiff”) subsequently
investigated whether Respondent’s conduct violated Title VII of the Civil Rights Act of 1964.
[Dkt. 3 at 2.] The EEOC obtained from Respondent a copy of Jenkins’s employment application,
which contained the following clause:
WAIVER OF LIMITATIONS PERIODS. In exchange for the Company
considering my application for employment, and except as prohibited by law, I
agree that I must file any and all claims and/or lawsuits arising out of or
pertaining in any way to my application for employment, employment or
termination of employment within six (6) months of the event giving rise to the
claim and/or lawsuit (unless the applicable statute of limitations is shorter than six
(6) months, in which case the shorter period of limitations will apply). I
understand that applicable statutes of limitations may be longer than six (6)
months. However, I agree to be bound by this shorter six (6) month period of
limitations and accordingly WAIVE ANY STATUTE OF LIMITATIONS TO
[Id.] Plaintiff requested additional information about this clause, but Respondent refused to
produce it. [Id. at 3.] Plaintiff then served on Respondent a subpoena requiring Respondent to:
1) provide a copy of “each and every version of employment application form which the
Respondent has used at any time, for any length of time, at any and all of its
offices/places of business, in both paper/hardcopy and electronic/online formats,
between January 1, 2012, and May 31, 2014,” including all pages of and all revisions
to each form;
2) identify any address at which Respondent conducted business between January 1,
2012 and May 31, 2014;
3) identify each individual who signed any release or acknowledgment as part of
Respondent’s application process at any time between January 1, 2012 and May 31,
2014, including the date of application and office at which the individual applied; and
4) identify and provide copies of the complaints and dismissals of any lawsuits filed
against Respondent since January 1, 2012 that were dismissed because the filing party
had previously signed an agreement limiting the length of time the individual had to
file a lawsuit.
[Dkt 2-5 at 3.] Plaintiff seeks the information “to determine how long, if at all, Respondent has
required applicants to waive statutorily protected statutes of limitations.” [Dkt. 3 at 10.]
Respondent did not comply with the subpoena, and on September 15, 2014, Plaintiff filed an
Application for an Order to Show Cause Why an Administrative Subpoena Should Not Be
Enforced. [Dkt. 1.] The Court issued an order to show cause on September 16, 2014. [Dkt. 6.]
After granting Respondent’s request for an extension of time to respond, [Dkt. 13], the Court
conducted a hearing on November 20, 2014.
This Court has a limited oversight role in subpoena enforcement proceedings. E.E.O.C. v.
United Air Lines, Inc., 287 F.3d 643, 649 (7th Cir. 2002). “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.” Id. (quoting
E.E.O.C. v. Tempel Steel Co., 814 F.2d 482, 485 (7th Cir.1987)). The district court, however,
“also must consider the burdensomeness of compliance,” and may “modify or exclude portions
of a subpoena” if the demands are “unduly burdensome or unreasonably broad.” Id. at 653
(quoting FTC v. Shaffner, 626 F.2d 32, 38 (7th Cir.1980)).
Respondent contends that the Court should not enforce the subpoena because 1) the
information the EEOC seeks is not relevant [Dkt. 14 at 4]; and 2) even if the information is
relevant, compliance with the subpoena would be unduly burdensome. 1 [Id. at 10.]
A. Relevance of the EEOC’s Requests
“The EEOC’s investigative authority is not plenary; the EEOC ‘is entitled to access only
to evidence relevant to the charge under investigation.’” United Air, 287 F.3d at 652 (quoting
E.E.O.C. v. Shell Oil Co., 466 U.S. 54, 64 (1984)); see also 42 U.S.C. § 2000e-8(a) (“In
connection with any investigation of a charge filed under section 2000e-5 of this title, the
Respondent additionally argues that the Court should reject the EEOC’s application for enforcement because
Respondent’s allegedly illegal practice—contractually shortening the statute of limitations for complaints of
employment-based discrimination—is lawful. [Dkt. 14 at 8-9 (citing Taylor v. Western & Southern Life Ins. Co.,
996 F.2d 1188, 1204 (7th Cir. 1992).] Case law appears to support this proposition. See, e.g., Boaz v. FedEx
Customer Info. Servs., Inc., 725 F.3d 603, 606 (6th Cir. 2013) (“[C]ourts have enforced agreements that shorten an
employee’s limitations period for claims arising under statutes . . . such as Title VII[.]”). The Court, however, need
not address this argument, as the Court agrees with Respondent that its other contentions justify not enforcing the
Commission . . . shall at all reasonable times have access to . . . 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.”). “The charge requirement
evidences ‘Congress’ desire to prevent the Commission from exercising unconstrained
investigative authority.’” Id. (quoting Shell Oil, 466 U.S. at 65).
The EEOC bears the burden to establish that information sought is relevant to the charge
under investigation, but the “EEOC’s burden is not particularly onerous.” Id. Courts
“traditionally have allowed the EEOC access to information ‘that might cast light on the
allegations against the employer.’” Id. (quoting Shell Oil, 466 U.S. at 68-69). This definition of
relevancy is broader than the relevancy contemplated by the Federal Rules of Evidence; instead,
it is akin “to the standard found in Federal Rule of Civil Procedure 26, which says that
‘[r]elevant information [for civil discovery purposes] need not be admissible at the trial if the
discovery appears reasonably calculated to lead to the discovery of admissible evidence.’”
E.E.O.C. v. Konica Minolta Bus. Solutions U.S.A., Inc., 639 F.3d 366, 369 (7th Cir. 2011)
(quoting Fed. R. Civ. P. 26(b)(1)).
Nevertheless, “the Supreme Court also has cautioned that the charge and relevance
requirements should not be interpreted so broadly as to render the statutory language a ‘nullity.’”
United Air, 287 F.3d at 653 (quoting Shell Oil, 466 U.S. at 69). The relevance requirement is
designed to “prevent fishing expeditions,” and the EEOC must have “a realistic expectation
rather than an idle hope that something may be discovered.” Id. (citations and quotations
omitted). If the EEOC fails to meet its burden, a court cannot enforce the subpoena. Id.
The complainant in this case alleges that a co-worker at Pep Boys sexually harassed her
and that Respondent retaliated by terminating her employment in response to her complaint.
[Dkt. 2-1.] The complainant does not allege that Respondent has a pattern or practice of such
discrimination, nor does she allege that the above-referenced limitations clause impaired her
ability to file her complaint or impacted her employment in any way. [See id.]
Furthermore, the alleged harassment occurred in May 2013, and the complainant filed her
charge four months later, in September 2013. [Id.] Respondent therefore has not asserted the sixmonth limitations clause as a defense to the charge, [Dkt. 14 at 6], and acknowledges that
asserting the defense would be “temporally impossible.” [Show Cause Hearing, November 20,
2014, at 4:15.] Nonetheless, the EEOC’s subpoena in this case “seeks documents . . . to
determine how long, if at all, Respondent has required applicants to waive statutorily protected
statutes of limitations.” [Dkt. 3 at 10.]
At the hearing, Respondent argued that the request for information about the waiver was
relevant to the complainant’s charge because it related to the “overall conditions in the
workplace,” in that Respondent is allegedly “doing what they can to discourage employees from
filing claims.” [Hr’g at 4:10].
This argument is unavailing. First, Respondent notes that the clause had no impact on the
complainant’s willingness to file a charge in this case, as the complainant timely filed her charge
well within the six-month period of limitations in the claim. [Hr’g at 4:15.] This makes it
difficult to contend that the waiver is “relevant to the charge under investigation.” 42 U.S.C. §
2000e-8(a) (emphasis added). Second, accepting this argument would eviscerate the meaning of
“relevance.” If anything relating to the “overall conditions in the workplace” is relevant, then
any information about the employer is relevant, and any distinction between relevant and
irrelevant information disintegrates. That renders relevance a “nullity,” and this the Court cannot
accept. United Air, 287 F.3d at 653 (quoting Shell Oil, 466 U.S. at 69) (“[T]he charge and
relevance requirements should not be interpreted so broadly as to render the statutory language a
Perhaps recognizing the weakness of this argument, the EEOC also contends that it has a
broader mandate to promote the public interest by combating all discrimination in the workplace.
[See Hr’g at 4:16.] The EEOC’s opening brief argues that if “an investigation discloses an
unalleged violation, the EEOC is not required to obtain a new charge from the aggrieved
individual or to issue a Commissioner’s charge,” such that the EEOC can immediately subpoena
information related to the unalleged violation. [Dkt. 3 at 9.] Plaintiff’s reply brief reiterates this
argument, and contends that the EEOC “is authorized to subpoena evidence regarding
employment practices not specifically mentioned in the charge.” [Dkt. 15 at 2.]
The Court observes numerous problems with this argument. At the outset, the EEOC’s
contentions contradict the plain text of the statute. The EEOC is authorized to subpoena
“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) (emphasis added). The charge under investigation in this
case is an individual complaint of sexual harassment and retaliation. [Dkt 2-1 (“I believe that I
have been discriminated against[.]”) (emphasis added).] The charge does not allege any broader
pattern or practice of discrimination or implicate the limitations waiver in any way. [See id.] The
EEOC’s request for information about that waiver therefore extends beyond the charge under
Next, the EEOC supports its argument with non-binding authority. Both the EEOC’s
opening brief and reply cite E.E.O.C. v. Astra USA, Inc., in which the First Circuit stated that an
initial charge “is capable of supporting an EEOC investigation into both the discrimination
described in the charge itself and into the surrounding circumstances (including a full probing of
any evidence of discriminatory practices unearthed during the course of the initial
investigation).” 94 F.3d 738, 746 (1st Cir. 1996). The First Circuit drew support for this
proposition from a case in which the Fourth Circuit stated that the EEOC can investigate
practices other than those in the original charge so “long as the new discrimination arises out of
the reasonable investigation of the charge filed.” E.E.O.C. v. Gen. Elec. Co., 532 F.2d 359, 366
(4th Cir. 1976).
Neither of these cases is especially convincing, as other circuits have taken the opposite
view. In E.E.O.C. v. Southern Farm Bureau Casualty Insurance Co., the Fifth Circuit considered
an EEOC investigation arising from a complaint that “specified racial discrimination only.” 271
F.3d 209, 211 (5th Cir. 2001). The EEOC later sought information related to sex discrimination,
and the Fifth Circuit upheld the district court’s decision not to enforce a subpoena demanding
When the EEOC discovered what it considered to be possible evidence of sex
discrimination by Southern Farm, the EEOC could have exercised its authority
under 42 U.S.C. §§ 2000e–5(b), 2000e–6(e) to file a commissioner’s charge
alleging sex discrimination, thereby freeing the EEOC to demand information
relevant to Southern Farm’s employment of women. Instead, nineteen months into
its investigation of Thomas’s racial discrimination charge, the EEOC simply
began requesting information about the sex of Southern Farm’s employees. Given
this timing, together with the availability of a statutory avenue for pursuing other
discrimination charges and the EEOC’s inability to demonstrate relevance in this
case, we perceive no clear error in the district court’s determination.
Id. at 211-12. The Third Circuit has come to a similar conclusion: In E.E.O.C. v. Kronos, the
court considered a white female’s complaint of disability discrimination. 620 F.3d 287, 301 (3d
Cir. 2010). The court then cited the Fifth Circuit’s Southern Farm decision and rebuffed the
EEOC’s attempt to expand the investigation to include race discrimination: “While the EEOC is
not required to ignore facts it uncovers in the course of a reasonable investigation of the charging
party’s complaint, that standard does not justify the expansion of the investigation undertaken
here.” Id. Indeed, the Court also cited the Seventh Circuit’s United Air decision for the
proposition that the EEOC could not conduct a “fishing expedition” to wander into unrelated
areas of discrimination. See id. (quoting United Air, 287 F.3d at 653).
The Eleventh Circuit has had the most recent word on this issue. In E.E.O.C. v. Royal
Caribbean Cruises, Ltd., the court upheld a district court’s denial of enforcement of a subpoena.
No. 13-13519, 2014 WL 5756126, at *3 (11th Cir. Nov. 6, 2014). The initial complaint alleged
that Royal Caribbean discriminated against Jose Morabito in violation of the Americans with
Disabilities Act, but the EEOC subpoenaed company-wide application, hiring, and termination
data. The Eleventh Circuit affirmed the district court because it doubted that “company-wide
data regarding employees and applicants around the world with any medical condition . . . would
shed light on Mr. Morabito’s individual charge that he was fired because of his [diagnoses.]” Id.
at *2. The Court also rejected the EEOC’s argument that it was entitled to go beyond Mr.
Morabito’s individual complaint:
The EEOC focused most of its efforts before the district court, and in its briefs
before us, on its argument that the EEOC is entitled to expand the investigation to
uncover other potential violations and victims of discrimination on the basis of
disability. . . . We do not construe the relevancy standard so broadly. It might be
that this information is related to Mr. Morabito’s individual charge, but the
standard by which the EEOC’s subpoena power is governed is “relevant to the
charge under investigation.” 42 U.S.C. § 2000e–8(a) (emphasis added). The
relevance that is necessary to support a subpoena for the investigation of an
individual charge is relevance to the contested issues that must be decided to
resolve that charge, not relevance to issues that may be contested when and if
future charges are brought by others. . . . Although eradicating unlawful
discrimination and protecting other as-yet undiscovered victims are laudatory
goals and within the Commission’s broad mandate, the EEOC must still make the
necessary showing of relevancy in attempting to enforce its subpoena. We agree
with the magistrate judge and the district court that the broad company-wide
information sought by the EEOC here has not been demonstrated to be relevant to
the only contested issues that remain from those that arose as a result of the
individual charge brought by Mr. Morabito.
Id. at *3. The most recent word from circuits outside the Seventh thus rejects the EEOC’s
position in this case. It may be that Respondent’s waiver is unlawful, but see supra note 1, but
that waiver goes beyond the issues arising “as a result of the individual charge brought by [Ms.
Jenkins.]” Royal Caribbean, 2014 WL 5756126, at *3. The EEOC’s subpoena in this case thus
exceeds its authority.
Even more problematic for Plaintiff is that the Seventh Circuit also disagrees with Astra
USA and General Electric. In United Air, the original complaint focused on United Air Lines’
failure to make contributions to the French social security system on behalf of American flight
attendants. 287 F.3d at 654.The EEOC issued a subpoena, but its request was “not limited to
individuals who may be considered similarly situated to [the complainant] either by position
(flight attendant) or by location (France).” Id. Instead, the subpoena demanded “extensive
information with respect to all United employees residing abroad.” Id. The EEOC argued that it
needed this information “to be able to determine whether United’s policies have a disparate
impact on men and women and whether United’s policies discriminate based on national origin.”
Id. at 655. The Seventh Circuit disagreed: “Nothing in the charge suggest[ed] systemic
discrimination on the basis of national origin or sex with respect to life, health, disability and
leave benefits.” Id. Thus, allowing the EEOC to conduct such a broad investigation would have
required the court “to disregard the Congressional requirement that the investigation be based on
the charge.” Id.
The current situation is analogous. Nothing in Ms. Jenkins’s complaint suggests systemic
or company-wide discrimination, [see Dkt. 2-1], and the EEOC’s company-wide demands go far
beyond employees who worked in the same position or same location as Ms. Jenkins. This Court,
like the Seventh Circuit, will not “disregard the Congressional requirement that the investigation
be based on the charge,” and will not enforce the EEOC’s subpoena.
Furthermore, the United Air court stated that, should “the EEOC discover, in the course
of a significantly narrowed inquiry, evidence of a broader pattern of discrimination, it is, of
course, free to file a commissioner’s charge incorporating those allegations and broaden its
investigation accordingly. Without a broader charge, however, the EEOC’s current request
cannot be sanctioned.” 287 F.3d at 655 (citing S. Farm Bureau, 271 F.3d at 211). The Seventh
Circuit thus agrees with the position articulated above by the Third, Fifth, and Eleventh Circuits,
such that the EEOC in this case must file a broader charge before investigating alleged
discrimination unrelated to the complainant’s original charge. 2
The EEOC attempts to save its position with E.E.O.C. v. Konica Minolta Business.
Solutions U.S.A., Inc., 639 F.3d 366 (7th Cir. 2011), which it cites for the proposition that when
“investigating a charge of discrimination, the Commission is authorized to subpoena evidence
regarding employment practices not specifically mentioned in the charge.” [Dkt. 15 at 2 (citing
Konica Minolta, 639 F.3d at 369).]
In Konica Minolta, the Seventh Circuit considered an EEOC subpoena issued in response
to a complaint in which Elliot Thompson alleged both a “specific instance” of race
discrimination and “a pattern of race discrimination.” 639 F.3d at 369. The Seventh Circuit
The EEOC’s opening brief acknowledges this contrary Seventh Circuit authority, but does so with a passing
reference to United Air at the end of a page-long string cite. [Dkt. 3 at 9-10.] The rest of the brief ignores it. [See
Dkt. 3.] In reply, the EEOC attempts to distinguish the current case from United Air and vaguely argues that the
information it seeks here is “properly tailored to matters within the Commission’s authority.” [Dkt. 15 at 3.] In
United Air, however, the Seventh Circuit found that “accepting the EEOC’s interpretation of relevance in this case
would render that requirement a ‘nullity.’” 287 F.3d at 654. The Court in the current case, as described above, has
come to the same conclusion, and thus finds that the Seventh Circuit’s requirement that the EEOC initiate a new
charge before obtaining the information it seeks is directly on point.
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. Racial discrimination is “by
definition class discrimination,” and 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
Id. Konica Minolta thus establishes that the EEOC is empowered to investigate whether the
employer “discriminated against other members of the same class” as the original complainant.
Id. As an example, when an employer is alleged to discriminate on the basis of race against an
individual African American, Konica Minolta suggests that the EEOC may then investigate
discrimination on the basis of race against African Americans within the entire company. Konica
Minolta does not suggest that the EEOC may immediately demand information about other
potentially illegal employment practices in which the company might be engaged.
The Seventh Circuit confirmed this interpretation in writing that the question “under Shell
Oil and its progeny is not whether Thompson specifically alleged discrimination in hiring, but
instead is whether information regarding Konica’s hiring practices will ‘cast light’ on
Thompson’s race discrimination complaint.” Id. (emphasis added). The EEOC’s broader
investigation thus must still be tied to the original complaint.
In the current case, the EEOC has not established a link between its subpoena and the
original complaint. The complainant has not alleged a pattern or practice of discrimination, nor
has she alleged the sort of racial discrimination that might, by definition, be class-wide. [See Dkt.
2-1; Konica Minolta, 639 F.3d at 369.] The complainant’s allegations, in fact, are entirely
unrelated to the employment application’s waiver, leaving no prospect that information about the
waiver and other employees will “cast light” on whether the individual complainant suffered
from the discrimination she alleges.
The EEOC, in short, does not seek to investigate whether Respondent “discriminated
against other members of the same class” as the complainant. Konica Minolta, 639 F.3d at 369.
Instead, it seeks to launch an unrelated investigation into a new and unrelated class of
employees—those whose claims may have been affected by signing the waiver. Konica Minolta
does not support such a broad investigation. The Court will therefore adhere to the Seventh
Circuit’s statement in United Air and will not enforce the subpoena in the absence of a “broader
charge” against Respondent. United Air, 287 F.3d at 655.
B. Burden of Compliance
A district court may also modify or decline to enforce a subpoena where compliance
would be unduly burdensome. Id. at 653. The employer must establish that the demands are
burdensome, and conclusory allegations of burden are insufficient. Id. The Seventh Circuit has
stated that the employer carries a “difficult burden” of showing that “compliance would threaten
the normal operation of a respondent’s business.” Id. (quoting E.E.O.C. v. Bay Shipbuilding
Corp., 668 F.2d 304, 313 (7th Cir.1981)). However, “that scenario is more illustrative than
categorical. ‘What is unduly burdensome depends on the particular facts of each case and no
hard and fast rule can be applied to resolve the question.’” Id. (quoting Shaffner, 626 F.2d at 38).
This Court must therefore “weigh the likely relevance of the requested material to the
investigation against the burden to [the respondent] of producing the material.” Id. at 654
(quoting E.E.O.C. v. Ford Motor Credit Co., 26 F.3d 44, 47 (6th Cir. 1994)).
As described above, the Court finds that the EEOC’s subpoena demands information that
is not at all relevant to the “charge under investigation.” 42 U.S.C. § 2000e-8(a). However, even
if the Court accepted the EEOC’s strained argument that the waiver information relates to
complainant’s claim because it sheds light on the “overall conditions in the workplace,” the
Court would not enforce the subpoena. This is because the burden imposed on Respondent far
exceeds the minimal relevance that the waiver’s potential implications for the “overall conditions
in the workplace” might have for the complainant’s charge.
Respondent in this case discussed at length the burden that compliance with the subpoena
would impose, [Dkt. 14 at 11-12], and submitted evidence supporting its assertions in the form of
an affidavit from its Director of Human Resources. [Dkt. 14-1.] In particular, Respondent
explained that, during the time period covered by the EEOC subpoena, Respondent processed
130,000 temporary employee applications and that these applications are “not kept in a central
repository, nor electronically in any form.” [Id. ¶¶ 11-12]. Compliance with the subpoena would
thus require Respondent to “manually review each employment application maintained in paper
format at each of its office locations,” at an estimated time of “2,166 hours.” 3 [Id. ¶¶ 15-16.]
Respondent would also need time to find and produce information responsive to Plaintiff’s
demand for data on lawsuits that had been dismissed as a result of the limitations waiver. [Dkt.
14 at 11.] Respondent does not store such data electronically or in any sort of central repository,
such that it would again need to manually collect and produce the information. [Id. at 11-12.]
In reply, the EEOC suggests that Respondent has not established how the above
described burden “would threaten its normal business operations.” [Dkt. 15 at 5.] Respondent,
however, explained that it “employs a small administrative staff of approximately 8-10
employees” at each of its ten locations. [Dkt. 14-1 ¶¶ 4, 6.] It is a “leanly staffed operation” that
has a Director of Human Resources, but no Human Resources Department. [Hr’g at 4:19.]
Compliance with the subpoena would thus require Respondent to divert its employees from their
Respondent’s Director of Human Resources estimated that it would require one minute to “gather, review and
compile the information requested in Paragraph 3 of the Subpoena” for each of Respondent’s 130,000 applications.
[Dkt. 14-2 ¶ 16.]
regular tasks, [see Dkt. 14-1 ¶¶ 7-10], and thereby disrupt Respondent’s day-to-day operations.
This is the very definition of undue burden. See, e.g., Bay Shipbuilding Corp., 668 F.2d at 313
(requiring employer to show that compliance with subpoena would “threaten the normal
operation of a respondent’s business”). 4
The Court thus finds that Respondent has shown that compliance with the subpoena
would be unduly burdensome. The relevance of the information the EEOC seeks is generously
described as tangential to the underlying charge, and Respondent’s evidence establishes that
compliance would significantly interfere with its staff members’ daily activities. Weighing these
factors against each other in compliance with United Air, see 287 F.3d at 653, the Court
concludes that enforcement of the subpoena is not justified.
For the reasons stated above, the Court DENIES Plaintiff’s motion for enforcement of
the administrative subpoena issued to Respondent. [Dkt. 1.] The Court’s Order to Show Cause,
[Dkt. 6], is hereby discharged.
Plaintiff also notes that Respondent “has not provided any dollar estimate regarding the cost of compliance.” [Dkt.
15 at 5.] This is not fatal to Respondent’s argument. See, e.g., E.E.O.C. v. ABM Janitorial-Midwest, Inc., 671 F.
Supp. 2d 999, 1006 (N.D. Ill. 2009) (sustaining burdensomeness objection without identifying monetary cost of
compliance). In any case, the Court may easily infer the cost of compliance: Respondent assigns its temporary
employees to positions where they earn $9.00 to $10.00 per hour. [Dkt 14-2 ¶¶ 18-19.] Thus, if Respondent decided
to try to avoid the subpoena’s disruption of its own employees’ daily operations, it would incur at least $20,000
dollars in costs—hardly insignificant for a “leanly staffed” operation that does not even have a Human Resources
Jo Ann Farnsworth
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
William F. Dugan
SEYFARTH SHAW LLP
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?