APPEALS COURT IN CHICAGO UPHOLDS EEOC SUBPOENA OF EMPLOYER RECORDS

Seventh Circuit Says Attempted Withdrawal of Charge of Discrimination  'Does Not Diminish Agency's Authority to Investigate'

CHICAGO  — The U.S. Court of Appeals for the Seventh Circuit, in a decision by Chief  Judge Frank H. Easterbrook, Friday ordered a District Court to enforce a  subpoena issued by the U.S. Equal Employment Opportunity Commis­sion (EEOC).  The court ruled that the EEOC had the authority to refuse to allow an  individual to withdraw a charge of discrimination, and, therefore, to enforce a  subpoena against an employer and to pursue an investigation of discrimination  by that employer, Watkins Motor Lines, Inc.  Watkins had entered into a private settlement agreement with a rejected  job applicant who had filed the charge of discrimination which gave rise to the  EEOC investigation. EEOC v. Watkins Motor Lines, Inc, (7th Cir. No. 08-2483,  C.J. Easterbrook, 1/23/2009).

The Seventh  Circuit’s decision overturned a March 2008 decision by U.S. District Judge  Rebecca Pallmeyer in which she dismissed the EEOC’s application to enforce a  subpoena against Watkins, a Florida-based trucking company, which the EEOC had  filed in July 2007. The trucking company  had reached a private settlement with its rejected job applicant conditioned  upon his withdrawing the charge of discrimination he had previously filed with  the EEOC.

Judge Pallmeyer ruled that EEOC’s  refusal to permit with­drawal of that charge and to shut down its  administrative investigation of a possible pattern of race discrimination  against the applicant and others in the same position was “arbitrary.” She then dismissed the EEOC’s application to  enforce the subpoena for documents, concluding that the EEOC could not ask a  court to enforce a subpoena when it should have allowed the charging party to  withdraw his charge. EEOC v. Watkins  Motor Lines, Inc. (N.D. Illinois  No. 07 C 4115, J. Pallmeyer, 3/26/2008).

Writing for  the Court of Appeals, Chief Judge Easterbrook said, “The Northern District of  Illinois is the right tribunal, this is the right time, and these are the right  litigants to resolve the question of whether [the rejected job applicant’s]  request to withdraw his charge ends the EEOC’s authority to investigate.”

In  rejecting the lower court’s reasoning and resolving the issue in favor of the  EEOC, Chief Judge Easterbrook went on to write, “The problem with the argument  is that it allows litigants to achieve their settlement by injuring other  unrepresented persons. Many a defendant would love to decapitate a class . . .  by paying off the sole representative plaintiff and thus avoiding liability to  all other class members. . . That was what Watkins tried to do here . . . The  agency and the judiciary are not obliged to abet this strategy by preferring  [the rejected applicant’s] interests over those of other workers … A charging  party’s change of mind does not diminish the agency’s authority to investigate  on its own behalf.”

EEOC  General Counsel Ronald S. Cooper said this morning in Washington, “We at the EEOC are very, very  satisfied with the unequivocal decision of the Seventh Circuit in this case  which we view as entirely consistent with established precedent. This is one more important reaffirmation of  what we have always understood to be our authority to investigate and challenge  employment discrimination on both class and individual bases. That was what we did in both the Waffle House and the Sidley & Austin cases which the  Seventh Circuit noted in today’s decision, that was what we were doing here,  and that is what we expect to continue to do.”

John  Hendrickson, EEOC regional attorney in Chicago,  said, “Some recalcitrant employers and their counsel attempt to avoid  accountability for employment discrimination through adoption of what they  consider effective counter-strategies.  Such strategies may include filing lawsuits against those who complain  of discrimination, conducting endless discovery so as to draw out litigation  for years, and, as in this case, getting one or two possible victims of the  discrimin­ation which may have been visited upon a class to cut a quick and  often cheap deal. Those strategies are,  in the final analysis, never really effective against the EEOC. We’re pleased to see that point made once  again made so forcefully in this important decision by the Seventh Circuit.”

The EEOC  was represented in the District Court proceedings in Chicago by Hendrickson and by Supervisory  Trial Attorney Gregory Gochanour and Trial Attorney Ethan Cohen. The agency was represented in the proceedings  before the Court of Appeals by Assistant General Counsel Carolyn Wheeler and Appellate  Attorney Gail Coleman of the Office of General Counsel in Washington.

The EEOC is  responsible for enforcing federal laws prohibiting discrimination in employment  based on race, color, sex (including sexual harassment and pregnancy),  religion, national origin, age, disability, and retaliation. Further information about the Commission is  available on its web site at www.eeoc.gov.