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United States Equal Employment Opportunity Commission v. Aaron's

April 11, 2011


The opinion of the court was delivered by: Matthew F. Kennelly, District Judge:


The Equal Employment Opportunity Commission (EEOC) has filed an application to enforce an administrative subpoena served on Aaron's, Inc. in the course of an investigation of a race discrimination charge by a former Aaron's employee filed under Title VII of the Civil Rights Act of 1964. Aaron's contends that the document requests in the subpoena are irrelevant to the underlying charge, overly broad, and unduly burdensome. Aaron's separately moves to strike portions of an EEOC declaration submitted in support of its application. For the following reasons, the Court enforces the subpoena with one limitation and denies the motion to strike as moot.


Aaron's sells and rents residential and office furniture, consumer electronics products, home appliances, and accessories. It has more than 1,800 stores in North America, of which approximately 1,200 are corporate-owned and 600 are franchisee-owned. In Illinois, Aaron's has eighteen corporate-owned stores.

The Illinois store location at issue in this case was originally franchisee-owned. Aaron's does not operate franchisee-owned stores and was not involved in the store's hiring decisions prior to August 2007, when it acquired the store. Upon acquisition, Aaron's offered conditional employment to the store's employees, subject to successful completion of a background check, a requirement for all newly hired Aaron's employees. As part of this process, Aaron's conducted criminal background checks for certain positions, including that of product technician.

Otis Nash worked as a product technician at the store for approximately six years before Aaron's acquired it in August 2007. The responsibilities of a product technician include delivering products to customers and installing products inside customers' homes. When Aaron's acquired the store where Nash worked, it conditionally offered him employment, subject to successful completion of a criminal background check. On September 11, 2007, Aaron's obtained Nash's background check, which showed that he had been convicted in 1992 of armed robbery and four counts of felony murder. Aaron's says that it decided to terminate Nash on September 12, 2007 because it did not want to send a convicted murderer into its customers' homes.

On May 1, 2008, Nash filed an EEOC charge alleging that he was terminated based on his race. The EEOC assigned attorney Aaron DeCamp and investigator Susan Smith to investigate Nash's charge.

The EEOC served Aaron's with a subpoena on December 4, 2009. In request three of the subpoena, the EEOC sought an electronic database identifying all persons who applied for employment at any of Aaron's Illinois stores from September 1, 2005 to the present. For each applicant, the EEOC requested several items of information including the applicant's name; race; store at which the applicant applied; position applied for; and a copy of the applicant's criminal background check. In request four, the EEOC requested copies of the franchise agreements for all franchisee-owned stores in Illinois. The subpoena requested production of the information by December 21, 2009.

On December 11, 2009, Alisa Cleek, attorney for Aaron's, served the EEOC with objections to the subpoena. The objections concerned only request four. Ultimately, the EEOC and Aaron's reached an agreement regarding request four which, as a result, is no longer at issue.

Regarding request three, on December 21, 2009, Cleek sent a letter to the EEOC stating that Aaron's did not have an electronic database of the type requested. EEOC attorney Aaron DeCamp says that in September-October 2010, he communicated with Cleek, who again advised that Aaron's did not have an electronic database with the requested information. DeCamp says he told Cleek that the EEOC would accept the information in any format. He says that Cleek said she would consult with her client but was not inclined to produce the information sought in request three. According to DeCamp, he never heard back from Cleek after this despite several attempts. Cleek says that no EEOC representative requested the information sought in request three in a format other than an electronic format.

On January 12, 2011, the EEOC commenced this enforcement action.


1. Enforceability of the subpoena

The EEOC has jurisdiction to investigate charges of unlawful employment practices filed with the agency. 42 U.S.C. § 2000e-8(a). As part of its investigation, the EEOC has broad authority to issue subpoenas requiring the production of evidence. 29 C.F.R. § 1601.16(a). A party served with a subpoena may seek its revocation or modification within five days of service. Id. § 1601.16(b)(1). If the EEOC determines that it will uphold all or part of ...

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