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United States Equal Opportunity Commission v. ABM Janitorial-Midwest

December 2, 2009

UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, APPLICANT,
v.
ABM JANITORIAL-MIDWEST, INC., RESPONDENT.



The opinion of the court was delivered by: Elaine E. Bucklo United States District Judge

MEMORANDUM OPINION AND ORDER

Before me is an application by the United States Equal Opportunity Commission to enforce an administrative subpoena it issued to ABM Janitorial-Midwest, Inc., a putative successor to Lakeside Building Maintenance, Inc., in the course of an investigation prompted by a charge of national origin discrimination against Lakeside. For the reasons that follow, I decline to enforce the subpoena.

I.

On November 13, 2000, a Lakeside employee named Lue Bowens filed a charge of discrimination against Lakeside. The particulars of her charge were as follows:

I. I was hired by Respondent*fn1 in 1977 as a Janitor. My most recent superivsor (sic) has continually conducted monthly employee meetings in a language which I and another co-worker do not understand. The content of these meetings has rarely been translated for me.

II. I believe I have been discriminated against due to my national origin, non-Polish, in violation of the Civil Rights Act of 1964, as amen[ded].

In the course of investigating the Bowens charge, the EEOC uncovered certain facts that prompted it to expand its inquiry beyond the scope of Bowens' narrow charge to determine whether Lakeside's hiring and job assignment practices reflected a general pattern of discrimination. In connection with its expanded investigation, on August 5, 2002, the EEOC issued an administrative subpoena to Lakeside seeking to depose seven Lakeside employees. See EEOC v. Lakeside Building Maintenance, Inc., 255 F.Supp.2d 871 (N.D. Ill. 2003)("Lakeside"). Lakeside refused to comply with the subpoena on the ground that it sought information that was irrelevant to the underlying charge. Id. In January of 2003, EEOC applied to this court for an order to enforce the subpoena, which I granted. Id.

By the time the EEOC issued its subpoena to Lakeside, a substantial portion of Lakeside's assets had been acquired by ABM.*fn2

Nevertheless, Lakeside was the only respondent to the 2002 subpoena and the 2003 enforcement action. According to Lakeside's response in the enforcement action, at that time the company had "approximately 3,500 active employees in Illinois and an additional 2,000 employees in six other states." Resp.'s Opp. to EEOC's App. For Order to Show Cause in No. 03 C 564 at 1 (Docket No. 5).*fn3

After I ordered Lakeside to comply with the EEOC's subpoena, Lakeside provided the EEOC with hiring, work location and other information about every person who worked for Lakeside from January 1, 1998 through July 12, 2002, when Lakeside sold its assets to ABM.*fn4

In late 2006 or January of 2007, the EEOC sent a request for information to ABM, seeking databases of information about ABM employees from the period beginning July 12, 2002 (the closing date of ABM's purchase of Lakeside's assets) to the date of the request. ABM refused to provide the requested information, and on March 21, 2007, the EEOC issued a subpoena to ABM seeking, with respect to each employee in ABM's Chicago and suburban facilities between July 12, 2002 and March 12, 2007, the employee's name; race and national origin; date of hire (as a non-permanent employee); date promoted into permanent position; work address; current employment status; date and reason for separation (if applicable); and last known address and telephone number. The EEOC also sought, for each individual who had applied for a position at ABM during the same time period, the employee's name; national origin; race; date of application; application; referral source; position sought; reason person was or was not selected for hire; date of hire if applicable; and name, race, and national origin for each person who made a decision to select or deny hire. In addition to the foregoing information about employees and applicants, the EEOC sought, all for the period from July 12, 2002 to March 12, 2007, ABM's annual EEO-1 reports and various other categories of information relating to ABM's organizational structure (including the name, race, national origin and job titles of the individuals responsible at various levels of authority); the geographical areas of ABM's recruitment and hiring; ABM's hiring and recruitment policies; job vacancies at ABM; new contracts acquired by ABM; and employee information (including name, date of hire, position, permanent or non-permanent status, national origin, and race) for each employee acquired with each new contract.

ABM petitioned to revoke the subpoena on March 28, 2007. Two years later, on March 26, 2009, the EEOC denied the petition. ABM refused to comply with the subpoena, and this action followed.

II.

The role of federal courts in enforcing administrative subpoenas issued by the EEOC is "sharply limited." EEOC v. Tempel Steel Co., 814 F.2d 482, 485 (7th 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." Id. (citing EEOC v. Illinois State Tollway Auth., 800 F.2d 656, 658 (7th Cir. 1986); EEOC v. A.E. Staley Mfg. Co., 711 F.2d 780, 783 (7th Cir. 1983), cert. denied, 466 U.S. 936, 104 S.Ct. 1907, 80 L.Ed. 456 (1984)). The first and the third prongs of this inquiry are related in that the EEOC's investigative authority "is not plenary": the agency is entitled only to information that is "relevant to the charge under investigation." EEOC v. United Air Lines, Inc., 287 F.3d 643, 652 (7th Cir. 2002) (quoting EEOC v. Shell Oil Co., 466 U.S. 54, 64 (1984)). ...


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