The opinion of the court was delivered by: Judge Sharon Johnson Coleman
Magistrate Judge Morton Denlow
MEMORANDUM OPINION AND ORDER
The Equal Employment Opportunity Commission ("EEOC") has filed an Application for Order to Show Cause Why the Subpoena Should Not Be Enforced ("application") [dkt # 1] against Aerotek, Inc. ("Aerotek"). The EEOC issued the subpoena in the course of an investigation of charges of national origin discrimination. Aerotek objects to the document requests in the subpoena, claiming they are irrelevant to the charges, overbroad, and unduly burdensome. Aerotek separately moves to dismiss [dkt # 11] the application to enforce the subpoena pursuant to Federal Rule of Civil Procedure 12(b)(1), challenging this Court's subject-matter jurisdiction.
Aerotek is a national staffing agency with several offices in Illinois, currently the EEOC is investigating twelve charges of discrimination against Aerotek. Two of the charges are referenced in the subpoena at issue. On May 20, 2008, Marco A. Rivera and Oscar A. Gutierrez filed EEOC charges alleging national origin discrimination. Both Rivera and Gutierrez were internal employees working as recruiters of temporary workers for Aerotek. They allege that Aerotek discriminated against them by denying them training and promotions, constructively discharging them and retaliating against them for engaging in protected activities.
EEOC Investigator Eric G. Lamb was assigned to investigate the Rivera and Gutierrez charges as well as ten other discrimination charges filed against Aerotek. The other charges relate to allegations of age and disability discrimination, retaliation, in addition to sexual and racial harassment. In the course of investigating these charges, the EEOC asserts that it found indications that Aerotek may be placing certain employees in lower paying jobs based on their national origin, and that Aerotek may be directing its employees to recruit temporary employees based on prohibited factors, including national origin, race, disability, and sex. On September 15, 2009, the EEOC issued a subpoena (No. CH-09-322) to Aerotek, requesting seventeen categories of documents from Aerotek's seven Illinois facilities.
On September 29, 2009, Aerotek challenged the subpoena with a petition to revoke or modify pursuant to 29 C.F.R. 1601.16(b). Aerotek challenged the subpoena on the basis that the requested information was irrelevant to the charges, overbroad, unduly burdensome, and/or privileged. The EEOC considered the petition and determined that the subpoena should be modified as to two of the seventeen categories of documents and the remaining fifteen should be enforced without modification. Due to the departure of the then Acting Vice Chair of the Commission, Christine M. Griffin, only two members of the Commission considered the petition. The determination by the Commission, issued on January 11, 2010, directed Aerotek to comply with the subpoena by February 10, 2010, for Categories 1-6, 10, 12, and 13-17, and by March 12, 2010, for Categories 7-9. The Commission modified Category 12 and decided that it would not pursue its request in Category 11 at that time. Thereafter, the EEOC agreed to temporarily limit Categories 7-10 to the years 2007-2008, rather than the originally requested 2006 to the present. Aerotek allegedly continued to fail to comply with the EEOC's repeated requests for information and had submitted only partial responses by the extended deadlines of April 19, 2010, and May 2, 2010. After reviewing the material tendered by Aerotek, the EEOC determined that compliance with the subpoena would not be unduly burdensome. The EEOC gave Aerotek until June 11, 2010, to submit the missing information from Categories, 7, 9, 10, 12-14, and 16. The EEOC began the present enforcement proceeding on November 4, 2010.
1. Aerotek's Motion to Dismiss
This Court will first address Aerotek's motion to dismiss since it concerns this Court's jurisdiction to enforce the subpoena. Aerotek moves to dismiss the EEOC's application to enforce the subpoena pursuant to Rule 12(b)(1), arguing that this Court does not have jurisdiction to enforce the subpoena because the Commission did not reach a final determination on Aerotek's petition to revoke or modify. Aerotek contends that only two members of the Commission considered the petition, and thus, no quorum existed to make the final determination.
The EEOC chose not to respond in writing to the motion. Instead, this Court heard oral argument on November 30, 2010. During the hearing, the EEOC responded that the Commission properly delegated its authority to the two commissioners that considered the petition; that the Commission ratified the decisions made during the three-month period that lacked a quorum; and that the EEOC is not subject to the same delegation limitations as the National Labor Relations Board ("NLRB"), as asserted by Aerotek. For the reasons that follow, Aerotek's motion is denied and this Court has jurisdiction to enforce the subpoena.
When reviewing a motion to dismiss under Rule 12(b)(1) for lack of subject-matter jurisdiction, the Court should generally accept as true all well-pleaded factual allegations and draw all reasonable inferences in favor of the non-moving party. See, e.g., Long v. Shorebank Dev. Corp., 182 F.3d 548, 554 (7th Cir. 1999). "The district court may properly look beyond the jurisdictional allegations of the complaint and view whatever evidence has been submitted on the issue to determine whether in fact subject matter jurisdiction exists." Capitol Leasing Co. v. FDIC, 999 F.2d 188, 191 (7th Cir. 1993) (quoting Grafon Corp. v. Hausermann, 602 F.2d 781, 783 (7th Cir. 1979)).
The federal regulations governing EEOC procedures provide that the target of a subpoena may file a petition to revoke or modify the subpoena. 29 C.F.R. §1601.16(b). "[I]f a person who is served with a subpoena petitions for revocation or modification of the subpoena pursuant to paragraph (b), and the Commission issues a final determination upholding all or part of the subpoena, and the person does not comply with the subpoena, the General Counsel or his or her designee may institute proceedings to enforce the subpoena in accordance with paragraph (c) of this section." 29 C.F.R. §1601.16(d). Paragraph (c) incorporates by reference the procedures of section 11(2) of the National Labor Relations Act, as amended,, to compel enforcement of the subpoena through the district court by application. 29 C.F.R. §1601.16(c); 29 U.S.C. §161(2).
Here, Aerotek argues that there was no "final determination" by the Commission because the two member Commission did not satisfy the quorum requirement. Aerotek asserts that "the Commission" as referred to in 29 C.F.R. §1601.16(d), "means a properly constituted Commission ...