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E.E.O.C. v. APPLETON ELEC. CO.

February 29, 1984

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, PETITIONER,
v.
APPLETON ELECTRIC COMPANY, RESPONDENT.



The opinion of the court was delivered by: Leighton, District Judge.

Memorandum

This is an application by petitioner Equal Employment Opportunity Commission ("EEOC") to enforce three administrative subpoenas against respondent Appleton Electric Company ("Appleton"). Both parties have filed motions for summary judgment; and additionally, EEOC has moved for a protective order and sanctions. On consideration of all briefs, memoranda and oral arguments heard on Friday, December 23, 1983, the court grants EEOC's motion for summary judgment, denies respondent's and grants EEOC's motion for a protective order and sanctions. The material facts are as follows.

I

On November 20, 1978, EEOC Commissioner Daniel E. Leach issued a charge against Appleton alleging that it had engaged in unlawful discrimination against Negroes and women with respect to recruitment, hiring, job assignment, training and promotional opportunities. This action was pursuant to Section 706(b) of Title VII, 42 U.S.C. § 2000e-5(b); and on March 4, 1981, the change was amended to allege a continuing violation from, at least, January 1, 1974 to March 4, 1981. On December 4, 1978, in accordance with standard agency practices, EEOC served notice on Appleton and proceeded to conduct an investigation.

Appleton, however, refused to respond to EEOC's requests for information, contending that the Commission's investigation was unlawful because the Office of Federal Contract Compliance had previously investigated the company. Due to Appleton's unwillingness to produce requested documents voluntarily, EEOC served it with an administrative subpoena. On April 15, 1979, EEOC denied a petition by Appleton contesting issuance of the subpoena.

Still Appleton refused to comply with the subpoena; consequently, EEOC commenced an action similar to this proceeding which was assigned to Judge Shadur of this court. Relying on the briefs of the parties, and the recommendation of Magistrate Cooley, Judge Shadur entered an order enforcing the subpoena. EEOC v. Appleton Electric Company, slip op. No. 79 C2100 (N.D.Ill., Aug. 26, 1980). Appleton's appeal to the Seventh Circuit was dismissed. (Ex. 2, EEOC's Motion for Protective Order and Sanctions).

EEOC proceeded with its investigation. Although Appleton granted the Commission access to some documents and some employees, the company's cooperation continued to be less than complete. Eventually, the Commission was forced to issue three additional subpoenas, CH 83-01, CH 83-02 and CH 83-03 (Ex. 2, Aff. of Kathleen Blunt), which directed Appleton employees Carmen McDonald, Ralph Smoot and Ron Richards each to appear for an additional interview. Even though these three employees had been interviewed once before, EEOC maintains that it has a legitimate reason for asking them more questions about Appleton's employment practices. The evidentiary information which will be obtained through compliance with these subpoenas, the Commission argues, is material, relevant, not unduly burdensome and not repetitive.

Nevertheless, Appleton sought, as before, to have the Commission revoke the subpoenas, only to have EEOC's District Director, and later the full Commission, deny its petition. The Commission again directed Appleton to comply with the subpoena requests. Appleton refused.

Accordingly, on November 23, 1983, EEOC filed with this court an application for enforcement of these subpoenas. Appleton has opposed the Commission's application by raising several affirmative defenses. On December 23, 1983, this court granted EEOC's motion for a protective order prohibiting Appleton from taking the depositions of Commission personnel.

II

The first issue before this court is whether the subpoenas issued by EEOC should be enforced. The authority of the Commission to issue subpoenas in connection with an investigation is well settled. Section 710 of Title VII, 42 U.S.C. § 2000e-9, provides that

  for the purposes of all hearings and investigations conducted
  by the Commission or its duly authorized agents or agencies,
  Section 11 of the National Labor Relations Act (49 Stat. 455;
  29 U.S.C. § 161) shall apply.

Section 11 of the National Labor Relations Act, 29 U.S.C. § 161(2), authorizes the issuance of subpoenas requiring the production of evidence, and further provides that:

  In case of contumacy or refusal to obey a subpoena to any
  person, any district court of the United States . . . within
  the jurisdiction of which the inquiry is carried on or within
  the jurisdiction of which said person guilty of contumacy or
  refusal to obey is found or resides or transacts business, upon
  application of the Board shall have jurisdiction to issue to
  such person an order requiring such ...

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