No

TABLE OF CONTENTS

SUMMARY OF CASE AND STATEMENT REGARDING ORAL ARGUMENT............... i

Table of Authorities......................................................................................... iii

Statement of Jurisdiction.................................................................................. 1

Statement of the Issue....................................................................................... 1

Statement of the Case....................................................................................... 1

A. Course of Proceedings............................................................................ 1

B. Statement of Facts.................................................................................. 2

C. District Court’s Decisions...................................................................... 5

Standard of Review........................................................................................... 7

Summary of Argument..................................................................................... 8

Argument.......................................................................................................... 9

THE DISTRICT COURT PROPERLY ENFORCED EEOC’S SUBPOENA .. 9

A. The District Court Correctly Understood the Nature of the EEOC’s

Subpoena Request and Aerotek’s Objections to It. ........................ 12

B. The District Court Properly Enforced the EEOC’s Subpoena Because

It Seeks Information Relevant to its Directed Investigation. .......... 13

C. Although Aerotek Asserts Compliance with the Subpoena Would Be Disruptive to Its Business, Aerotek Has Failed to Demonstrate

Burdensomeness. ............................................................................. 21

Conclusion...................................................................................................... 23

Appendix

Certificate of Compliance

Certificate of Service

TABLE OF AUTHORITIES

Cases

Blue Bell Boots, Inc. v. EEOC, 418 F.2d 335 (6th Cir. 1969)........................ 17

Dow Chem. Co. v. Allen, 672 F.2d 1262 (7th Cir. 1982)................................. 8

EEOC v. Aaron’s, Inc., 779 F. Supp. 2d 754 (N.D. Ill. 2011)........................ 17

EEOC v. A.E. Staley Mfg. Co., 711 F.2d 780 (7th Cir. 1983) ....................... 15

EEOC v. Cambridge Title Mfg. Co., 590 F.2d 205 (6th Cir. 1979) ............... 15

EEOC v. Elrod, 674 F.2d 601 (7th Cir. 1982) ............................................... 15

EEOC v. Joslin Dry Goods, 483 F.2d 178 (10th Cir. 1973) .................... 15-16

EEOC v. Loyola Univ. Med. Ctr., 823 F. Supp. 2d 835 (N.D. Ill. 2011) ....... 17

EEOC v. McLane Co., No. CV-12-615, 2012 WL 1132758

(D. Ariz. Apr. 4, 2012)................................................................................. 18

EEOC v. Quantum Foods, LLC, 2010 WL 1693054 (N.D. Ill. Apr. 26, 2010) 16

EEOC v. Quad/Graphics, Inc., 63 F.3d 642 (7th Cir. 1994) ................... 7-8, 21

EEOC v. Sidley Austin Brown & Wood, 315 F.3d 696 (7th Cir. 2002) 10, 17, 20

EEOC v. Technocrest Sys., Inc., 448 F.3d 1035 (8th Cir. 2006) ................... 14

EEOC v. Tempel Steel Co., 814 F.2d 482 (7th Cir. 1987).............................. 11

EEOC v. United Air Lines, Inc., 287 F.3d 643 (7th Cir. 2002)............. 8, 16, 17

Endicott Johnson Corp. v. Perkins, 317 U.S. 501 (1943) .............................. 10

FTC v.Texaco, 555 F.2d 862 (D.C. Cir. 1977) (en banc) ......................... 15, 21

Graniteville Co. v. EEOC, 438 F.2d 32 (4th Cir. 1971) ................................. 19

Cases (cont.)

Inspector General, U.S. Dep’t. of Housing and Urban Dev. v.

St. Nicholas Apartments, 947 F. Supp. 386 (C.D. Ill. 1996) ..................... 21

United States v. Morton Salt Co., 338 U.S. 632 (1950)................................. 11

Statutes

Federal Trade Commission Act,

15 U.S.C. § 49-50............................................................................... 1, 10

28 U.S.C. § 1291................................................................................ 1, 18

28 U.S.C. § 1345................................................................................ 1, 18

Fair Labor Standards Act,

29 U.S.C. § 209........................................................................................ 1

29 U.S.C. § 211(a).................................................................................. 10

Age Discrimination in Employment Act of 1967,

29 U.S.C. § 626............................................................................... passim

Title VII of the Civil Rights Act of 1964,

42 U.S.C. § 2000e-8(a)........................................................................... 10

Seventh Circuit Rules

7thCir. R. 30(d) ......................................................................................... A-19

7th Cir. R. 33.................................................................................................... 2

STATEMENT OF JURISDICTION

Aerotek’s statement of jurisdiction is accurate and complete.[1]

STATEMENT OF THE ISSUE

Did the district court properly enforce the EEOC’s subpoena?

STATEMENT OF THE CASE

A. Course of Proceedings

This is an ongoing investigation. EEOC has not yet determined whether it believes Aerotek, Inc., a staffing company, violated the ADEA. Among the unanswered questions is whether Aerotek has a practice of recruiting, hiring, or placing individuals for employment, both at its facilities and/or at the facilities owned or operated by Aerotek’s clients, using age-based criteria in violation of the ADEA. To shed light on these issues, the EEOC has sought, among other things, the names of Aerotek’s clients who seek employees through referrals from the 62 facilities at which EEOC discovered suspicious practices involving the use of age-based criteria in the employee selection process.

The EEOC’s then Chicago District Director, John P. Rowe initiated a directed investigation of age discrimination by Aerotek. In the course of its investigation, the EEOC issued an administrative subpoena seeking information that included names of Aerotek’s clients and of the individuals it refers for employment; when Aerotek refused to produce that information, the EEOC filed an application for an order to show cause why its ADEA subpoena should not be enforced. R.1[2] Application. The district court granted the application, ordered Aerotek to produce all information requested by the subpoena no later than March 23, 2015, and denied Aerotek’s motion to alter or amend the judgment. S.A.14[3], 25. Aerotek filed a notice of appeal, R.21, and asked the district court to stay its order pending appeal. R.25. The district court granted the motion for a partial stay during the pendency of this Court’s Rule 33 Prehearing Conference. R.31, 7th Cir. R. 33. After mediation failed, the district court vacated the stay. R.33. On June 15, 2015, the same day it filed its opening brief in this appeal, Aerotek provided a subset of client names to the EEOC, but has not fully complied with the court’s order enforcing the subpoena. Aerotek has not filed an emergency motion for a stay in this Court.

B. Statement of Facts

Respondent Aerotek, Inc. supplies temporary staffing services to its clients. On August 19, 2013, the EEOC informed Aerotek that, pursuant to Section 626 of the ADEA, 29 U.S.C. § 626, it was going to conduct a directed investigation to assess Aerotek’s compliance with the ADEA in its recruitment, hiring, and placement of individuals at all of the facilities owned and operated by Aerotek and/or its clients during the time period January 1, 2009, to the present. R.4-1 (EEOC Investigator Eric Lamb Declaration), Exh. A at 7. At the same time, EEOC issued a Request for Information (“RFI”) seeking information about Aerotek’s computerized files. Id., Exh. A at 9-10.

A few months later, the EEOC served a subpoena on Aerotek requesting from January 1, 2009, to the present: (1) certain information about all persons Aerotek referred from its Illinois facilities for employment at Aerotek’s clients; (2) certain information about all job requisition requests by clients of Aerotek nationwide; (3) information about individuals who were hired into certain internal positions at Aerotek’s Illinois facilities; and (4) documents related to Aerotek’s analysis of its workforce that it referenced in a prior letter. Id., Exh. B at 15-16. Aerotek partially complied with the request, producing some of the information sought in a computerized database. R.4-1, Lamb Decl. at ¶ 6, Exh. B. at 15-16.

The EEOC’s review of the produced information revealed hundreds of discriminatory job requests by Aerotek’s clients at 62 of Aerotek’s 226 facilities. Id. at ¶ 7. The EEOC noted a few examples of such requests: 1) “. . . is 22 years old and his two employees are both in their 20s – a person in their 40s or 50s would not be a cultural fit”; 2) “Looking for young entergetic [sic] guys with some sports knowledge and good attention to detail”; and, (3) “We’re looking for a Fresh College Grad . . . .” R.4-1, Exh. B. at 15-16.

The EEOC issued to Aerotek another RFI, seeking information about the individuals who were assigned by Aerotek to its clients, nationwide, including but not limited to the individuals’ names, dates of birth, and contact information, and the names of the clients to which they were assigned. R.4-1 at ¶ 9, Exh. D at 23-24. Again, Aerotek partially complied, producing some, but not all of the information in its computerized database. Most notably, Aerotek excised the names of its clients and the names and contact information of the individuals hired by its clients and, in place of that information, created and provided a code system and numerical identifiers of clients and individuals. See R.4-1, Exh. F at 31.

The EEOC then asked Aerotek to produce the information that was removed or otherwise missing in response to the RFI. R.4-1 at ¶11, Exh. E. Aerotek responded, stating that it refused to produce client names and the requested identifying information for the individual employees. R.4-1 at ¶12, Exh. F. Aerotek stated that it would not produce any of the information requested unless the Commission first specified precisely which clients and individuals it wants to contact. Id. Only then, Aerotek stated, would it partially comply with the subpoena and decode that portion of the database. Id.

The EEOC thus issued the subpoena at issue here, seeking the identifying client and individual employee information that Aerotek refused to provide, but narrowing the request geographically to the 62 facilities in which the EEOC had discovered discriminatory requests. Id. at ¶13, Exh. G. Aerotek advised the EEOC that it did not intend to comply with the modified subpoena and this enforcement action followed. Id. at ¶14. The district court ordered Aerotek to comply and a few weeks later Aerotek produced the individuals’ names and contact information. Aerotek did not produce the client names.

C. District Court’s Decisions

On March 10, 2015, the district court issued an order rejecting Aerotek’s objections to the subpoena and directed Aerotek to comply by March 23, 2015. S.A.14. At the hearing held in February, the district court rejected Aerotek’s argument that it is entitled to withhold client and individual employee information from the 62 facilities at which EEOC found problematic employee requisitions “as missing the whole point of what [EEOC is] seeking to do.” Id. at 8. The court stated that Aerotek “keep[s] trying to cabin this thing in a way that is not fair to the idea of what the agency is responsible for doing. They are responsible for trying to see that there are not violations of ADEA. And what they have done up to now is to say, ‘Based on what we have seen we know that there are sufficient number of these situations that deserve further inquiry.’ And the inquiry is not in – simply into the ones that they have already identified. That is not much of . . . an investigation, is it?” Id. The court granted enforcement of the subpoena, stating that the information EEOC already found “serves as a predicate as the potential springboard for finding out if this is a larger problem or not” and that Aerotek’s opposition to enforcement of the subpoena “is essentially nonresponsive.” Id. at 11.

On March 20, 2015, the district court denied Aerotek’s motion to alter or amend the judgment. S.A.25. The district court rejected Aerotek’s argument that “the universe got bounded by what had been learned as a result of [EEOC’s] search,” and the legitimacy of Aerotek’s efforts to “eliminate” EEOC’s “ability to communicate” with clients at the 62 facilities. S.A.17. The court noted Aerotek’s objection to the court’s previous characterization of the instances of suspected age discrimination EEOC discovered as a “sample,” stating that the court “meant” that EEOC had demonstrated “not just smoke but at least some elements of fire” in its investigation thus far and, as the agency responsible for enforcing the ADEA, EEOC must not be hindered in its efforts to obtain all information necessary to “reconstruct” the events to determine what happened at Aerotek. Id.

After Aerotek’s March 31, 2015, notice of appeal, R.21, on April 8, 2015, Aerotek filed in district court a motion for a stay pending appeal. R.25. On April 17, 2015, the district court granted Aerotek’s motion for a partial stay pending this Court’s scheduled Rule 33 Prehearing Conference, stating that in its request for a stay, Aerotek “made the same failure . . . [it] made the first time around,” in that both times “Aerotek never made clear just how it was potentially harmed,” and its argument that individuals will be “bothered” if EEOC contacts them is insufficient. EEOC Appendix (“EEOC App.”) 2-4. After the mediation failed, on June 11, 2015, the district court vacated the partial stay and denied Aerotek’s further request for a stay for the reasons stated earlier, noting that Aerotek can request from this Court an emergency stay. R.33, EEOC App. 5-7. Aerotek has not produced the client information sought by the subpoena.

STANDARD OF REVIEW

This Court reviews a district court’s decision to enforce an agency subpoena for abuse of discretion. EEOC v. Quad/Graphics, Inc., 63 F.3d 642, 644 (7th Cir. 1994). “‘A finding by the district court that documents are reasonably relevant to a legitimate agency purpose cannot be overturned absent a showing that the factual determinations are clearly erroneous or that the ruling itself constitutes an abuse of discretion.’” EEOC v. United Air Lines, Inc., 287 F.3d 643, 649 (7th Cir. 2002) (quoting Dow Chem. Co. v. Allen, 672 F.2d 1262, 1267 (7th Cir. 1982)). A district court’s assessment of whether compliance with a subpoena would be burdensome “‘should only be reversed for abuse of discretion save where [it is] intimately tied to a misunderstanding of law, in which case the ordinary standard of error applies.’” Quad/Graphics, 63 F.3d at 645 (quoting Dow Chem., 672 F.2d at 1267).

SUMMARY OF ARGUMENT

The district court properly enforced the EEOC’s subpoena. The EEOC’s subpoena seeks information relevant to its directed investigation of potential age discrimination in Aerotek’s business practice of providing staffing services for its clients. On appeal, Aerotek argues, essentially, that when the EEOC discovered that some of the requisitions in Aerotek’s database reflected potential ADEA violations, the scope of its investigation should have been narrowed to focus only on the clients making those requisitions, and that the EEOC should be barred from looking at any other clients handled at those same facilities. As the district court repeatedly pointed out, Aerotek “miss[es] the whole point of what [EEOC] is seeking to do.” S.A.8.

The focus of this inquiry is Aerotek and the 62 facilities at which the EEOC already discovered requisitions problematic under the ADEA. As the district court noted, to determine the magnitude and scope of Aerotek’s practices, the EEOC needs to investigate further. Although the first step of the investigation involves, in part, reviewing Aerotek’s unedited databases for these facilities, the investigation necessarily will move beyond those raw facts to determine whether what appear to be discriminatory employment requisitions actually were unlawful and whether there are other problematic staffing requests or actions not captured in the database. Aerotek has failed to demonstrate why these client names are not relevant to EEOC’s investigation of its compliance with the ADEA. Aerotek has also failed to demonstrate that compliance with the subpoena would create a burden on the operation of its business.

ARGUMENT

THE DISTRICT COURT PROPERLY ENFORCED EEOC’S SUBPOENA

The ADEA authorizes the EEOC “to make investigations and require the keeping of records . . . in accordance with the powers and procedures provided in” the Fair Labor Standards Act (“FLSA”). 29 U.S.C. § 626(a). The FLSA gives the inquiring agency broad authority to “investigate such facts, conditions, practice, or matters as [it] may deem necessary or appropriate to determine whether any person has violated any provision of” the at-issue statutory provision. 29 U.S.C. § 211 (a). The FLSA, in turn, incorporates the subpoena power of the Federal Trade Commission Act, 15 U.S.C. §§ 49-50, which permits the agency to “investigate merely on suspicion that the law is being violated, or even just because it wants assurance that it is not.” United States v. Morton Salt Co., 338 U.S. 632, 642-43 (1950) (construing the Federal Trade Commission Act). The EEOC’s power to investigate on its own initiative sets the ADEA apart from Title VII, which limits the EEOC’s investigations to information “relevant to the charge under investigation.” 42 U.S.C. § 2000e-8(a). This Court has acknowledged this feature of the EEOC’s investigative authority under the ADEA, noting that the lack of a charge in an ADEA case brought by the EEOC is “irrelevant” because the “ADEA’s grant of investigative authority to the Commission is not cabined by any reference to charges.” EEOC v. Sidley Austin Brown & Wood, 315 F.3d 696, 701 (7th Cir. 2002).

This Court has explained that a district court properly orders enforcement of a subpoena absent a showing that the information sought in the subpoena is “plainly incompetent or irrelevant.” Id. at 701 (citing Endicott Johnson Corp. v. Perkins, 317 U.S. 501 509 (1943)); see also Morton Salt, 338 U.S. at 652 (administrative subpoenas are properly enforced where the “inquiry is within the authority of the agency, the demand is not too indefinite and the information is reasonably relevant”). Such limited oversight by district courts is “sufficient, for agency subpoena enforcement proceedings are of a summary nature not requiring the issuance of process, hearing, [or] findings of fact.” EEOC v. Tempel Steel Co., 814 F.2d 482, 485 (7th Cir. 1987).

The district court in this case conducted precisely the review this Court contemplates. The court correctly applied the governing legal standards, considered Aerotek’s request to withhold its clients’ names, repeatedly asked Aerotek to identify whatever relevancy or burdensomeness argument it had to substantiate its request, and ruled that Aerotek’s arguments were insufficient to excuse compliance with the subpoena. Particularly where, as here, the EEOC limited its subpoena request to only those facilities at which it had discovered problematic requisitions, the district court properly concluded that the subpoena should be enforced because it sought information reasonably relevant to the EEOC’s directed age investigation.

On appeal, Aerotek makes two principal arguments: that the district court based its decision on a misinterpretation of the facts of the case, Aerotek br. at 18-20; and that the subpoena seeks irrelevant information, id. at 20-28. Aerotek’s argument about the relevance of the requested information includes statements suggestive of the way compliance would impose a hardship on Aerotek’s business, although it does not assert that the production would be burdensome. Aerotek br. at 26-28.

A. The District Court Correctly Understood the Nature of the EEOC’s Subpoena Request and Aerotek’s Objections to It.

Aerotek insists that the district court based its decision to enforce the subpoena on a misunderstanding of the facts. Aerotek’s argument that the district court “completely misapprehended or misconstrued the circumstances underlying the dispute” does not withstand scrutiny. Aerotek br. at 18. This argument rests primarily on the district court’s use of the term “sample” in the February hearing. Id. at 14, 19. Aerotek contends that the word “sample” is a misnomer because the age-related requisitions the EEOC uncovered in the database represent not a sample or sub-set, but instead the entire universe of potentially age-discriminatory practices committed by Aerotek.

The flaw in Aerotek’s argument is that the EEOC’s investigation is of potential age discrimination by Aerotek, it is not an investigation of a database. While the EEOC began with the database, that database is not the subject of the investigation and it does not reflect or control the outer bounds of the EEOC’s investigation. As the district court pointed out to Aerotek during the March hearing on Aerotek’s motion to alter or amend the judgment, it did not “misunderstand” the facts. The court explained that its use of the term sample was not technical, and was intended to communicate its “sense” that EEOC “demonstrated . . . not just smoke but at least some elements of fire . . . and that [EEOC] did not exhaust the possibility that there was more to it substantively.” S.A.17.

As the EEOC’s attorney explained, the problematic requisitions may reflect only the “tip of the iceberg” (id. at 16) and the EEOC needs to follow up to determine whether Aerotek has referred employees to other Aerotek clients who advised Aerotek of their age-discriminatory criteria through communications that were not recorded in the database. Id. at 18. Without knowing the identities of the clients, the EEOC has no way to determine whether any of them have made formal or informal requests for employees applying what appear to be age-discriminatory criteria, or whether such requests are lawful.

B. The District Court Properly Enforced the EEOC’s Subpoena Because It Seeks Information Relevant to Its Directed Age Investigation.

Aerotek’s principal attack on the district court’s order enforcing the subpoena is that the court did not apply governing relevance standards correctly. Aerotek’s attack is logically and legally flawed. The initial stated purpose of the EEOC’s investigation was to determine Aerotek’s compliance with the ADEA in its recruitment, hiring, and placement of individuals at all facilities in the United States (i.e. Aerotek’s facilities and facilities owned and/or operated by its clients) from 2009 to the present. Upon discovering problematic requisitions, the EEOC narrowed its inquiry from a nation-wide scope to one focused solely on those Aerotek facilities at which, in this preliminary stage of the investigation, it discovered evidence of possible ADEA violations. According to Aerotek, as soon as the EEOC discovered suspicious requisitions at 62 of its 226 facilities, it should have narrowed its inquiry to those clients within those 62 facilities who sent the requisitions. Once possible discrimination is discovered, so Aerotek’s argument goes, further inquiry into whether there are additional instances of similar discriminatory practices must cease. The discovery of possible discrimination requires the investigation to be redirected and from that point forward the EEOC is only permitted to look deeper into the suspected discrimination uncovered. Everything else is “irrelevant.” That makes no sense.

Relevancy is not assessed by examining the relationship between information sought and the discrimination already discovered up to that point in the investigation. See generally EEOC v. Technocrest Sys., Inc., 448 F.3d 1035, 1039 (8th Cir. 2006) (in subpoena enforcement action, relevancy is not limited to the individuals alleging and providing evidence of discrimination but rather extends beyond those individuals, permitting EEOC to investigate the work histories of all employees). Instead, relevancy is measured by the relationship between the information sought and the investigation’s general purposes. As the Sixth Circuit expressly stated, EEOC is charged with the duty to investigate the “broader picture of discrimination which unfolds in the course of a reasonable investigation.” EEOC v. Cambridge Title Mfg. Co., 590 F.2d 205, 206 (6th Cir. 1979).

Aerotek’s cramped definition of the term relevance is inconsistent with ample precedent of longstanding vintage. This Court and others have generously construed the term “relevant” and have afforded the Commission access “if the material subpoenaed ‘touches a matter under investigation’ and if ‘the inquiry may be relevant to (a legitimate) purpose.’” EEOC v. Elrod, 674 F.2d 601, 613 (7th Cir. 1982) (citing cases). “This Circuit has long recognized that the EEOC has broad investigatory powers.” See EEOC v. A.E. Staley Mfg. Co., 711 F.2d 780, 783 (7th Cir. 1983) (Title VII). Generally speaking, relevancy is measured against the “general purposes of [the agency’s] investigation.” FTC v.Texaco, 555 F.2d 862, 874 (D.C. Cir. 1977) (en banc). Aerotek neither addresses this standard nor points to facts demonstrating that acquisition of the client names is inconsistent with the general purposes of this ADEA investigation.

The EEOC’s subpoena tailored to the narrowed scope of its investigation is consistent with the legal standards set forth in the out-of-circuit and district court decisions cited by Aerotek which address relevancy in the context of individual Title VII charges rather than in a directed investigation under the ADEA. Aerotek br. at 23-25. For example, in EEOC v. Joslin Dry Goods, 483 F.2d 178 (10th Cir. 1973), a Title VII case based on an individual’s charge that she was discriminatorily discharged from a particular store, the Tenth Circuit held that the subpoena was properly limited to the store identified by the charging party because there was evidence that each store had independent hiring practices. The court permitted investigation into all the firing and also hiring practices at that store. Id. Similarly in this case, the EEOC is seeking information about clients, not at all 226 Aerotek facilities, but rather only at the 62 facilities at which it discovered potentially discriminatory requisitions.

The district court’s decision in EEOC v. Quantum Foods, LLC, 2010 WL 1693054 (N.D. Ill. Apr. 26, 2010), is similarly unhelpful to Aerotek. In that case, an individual filed a Title VII charge claiming that one of three separate Quantum Foods business entities discriminated against him based on his national origin. The district court held that the proper focus of a case based on an individual charge initially might be the particular entity responsible for making the employment decision challenged, and that “‘within such a unit the EEOC might well need a wide spectrum of ... data in order to illuminate the general policies bearing on the complainant’s situation.’” Id. at *5 (quoting United Air Lines, 287 F.3d at 654).

The district court’s order here is consistent the ruling in Quantum Foods. In this case, the court enforced a narrowly circumscribed subpoena that identifies a limited number of Aerotek facilities for inquiry. It is Aerotek itself that is the single respondent in this directed investigation and it is Aerotek itself that is thus the common link in the investigation of potential age discrimination in its provision of employees to its clients.

The other cited cases similarly do not support Aerotek’s relevancy argument. EEOC v. Loyola Univ. Med. Ctr., 823 F. Supp. 2d 835 (N.D. Ill. 2011), an ADA case, is inapt. The court in that case held that, under the ADA which, unlike the ADEA, requires a charge, the subpoena must seek information relevant to the underlying charge and, in that case, it was not. And EEOC v. Aaron’s, Inc., 779 F. Supp. 2d 754, 758 (N.D. Ill. 2011), does not help Aerotek because the district court simply limited the subpoena to the corporate entity responsible for the allegedly discriminatory hiring practice challenged, which covered approximately 1200 corporate-owned stores. The court rejected the defendant’s argument that tendering to the EEOC the entire electronic database for all of those stores was a “fishing expedition,” holding that “‘[d]iscrimination on the basis of race is by definition class discrimination ... and the existence of patterns of racial discrimination in job classifications or hiring situations other than those of the complainants may well justify an inference that the practices complained of ... were motivated by racial factors.’” Id. (quoting Blue Bell Boots, Inc. v. EEOC, 418 F.2d 335, 358 (6th Cir. 1969)); accord, United Air Lines, 287 F.3d at 653 (quoting Blue Bell Boots with approval). The same can be said for any protected basis of discrimination, including age, and the EEOC is entitled to investigate whether there are recurring practices of age-discriminatory referrals to the clients serviced at the 62 Aerotek facilities where suspect requisitions have been detected.

Aerotek’s reliance on EEOC v. McLane Co., No. CV-12-615, 2012 WL 1132758 (D. Az. Apr. 4, 2012), is equally unavailing. Although the district court in that case permitted the use of numerical identifiers rather than “pedigree information” to identify the individuals involved, EEOC’s investigation focused on whether a physical exam had a discriminatory impact on certain protected groups. Proof of disparate impact does not require individual analysis. The court conducted its relevancy analysis in reliance on the EEOC’s representation in that case that it was not investigating acts of discrimination against particular individuals. By contrast, in this case, EEOC found hundreds of distinct discriminatory client requests at the 62 Aerotek facilities for which the client information is sought. EEOC intends to continue investigating suspected discrimination by seeking information from Aerotek employees so it can determine the breadth and scope of the at-issue practices, thereby necessitating the client identification information it seeks.

Aerotek argues that because some of the requisitions in the database do not demonstrate any indication of discriminatory animus, the EEOC is not entitled to the names of the clients whose requisitions are not problematic. Aerotek does not directly explain why the names of all its clients at the facilities with problematic requisitions are not relevant to the EEOC’s investigation. Instead Aerotek emphasizes that it thinks EEOC should focus on the problematic clients and view the others as unconnected. Its repetitive assertion of how it thinks the EEOC should investigate Aerotek’s business practices cannot substitute for legal authority.

Aerotek does not want to reveal the names of all clients at these facilities for fear of business repercussions. The problem its intransigence presents is a practical one. If the EEOC does not obtain the names of all the clients, it cannot proceed efficiently with its investigation. Aerotek suggests that the EEOC can come to it, on a client-by-client basis, when it has a reason to suspect discrimination and request the names of specific clients, identified by requisition. In essence, this would require the EEOC to prove discrimination as it goes, and give Aerotek the discretion to determine the pace and direction of the EEOC’s investigation. As one court aptly put it, to permit the target of an investigation to withhold relevant information at its discretion, “is not only to place the cart before the horse, but to substitute a different driver for the one appointed by Congress.” Graniteville Co. v. EEOC, 438 F.2d 32, 36 (4th Cir. 1971).

Aerotek contends that client names are irrelevant to the concerns the EEOC expressed at the hearings about why it needed the names. Aerotek br. at 22-23. Although Aerotek believes that consideration of whether an age-based request might reflect a bona fide occupational qualification (BFOQ) is “nonsensical” since it has not asserted such a defense, Aerotek br. at 23, this misapprehends the purpose of an investigation. This directed investigation seeks to determine whether there is cause to believe there is a violation, an inquiry which should properly consider whether there would be a defense. As this Court has said, “it is [] the law that like any agency with subpoena powers the EEOC is entitled to obtain the facts necessary to determine whether it can proceed to the enforcement stage.” Sidley Austin, 315 F.3d at 699. If the EEOC discovers information demonstrating a BFOQ defense for particular client requisitions, then Aerotek would not have violated the ADEA in fulfilling those requests, and no enforcement action would follow.

Aerotek also asserts that the EEOC’s suggestion that evidence of discrimination might be discovered outside the database, for example in email exchanges between Aerotek and its clients, does not establish the relevance of the client names because the subpoena does not seek production of emails. As explained earlier, this is an on-going investigation and if, in the course of investigating Aerotek’s interactions with its clients, the EEOC concludes that email or other information may cast light on the underlying investigation, it may then require production of that information.

C. Although Aerotek Asserts Compliance with the Subpoena Would Be Disruptive to Its Business, Aerotek Has Failed to Demonstrate Burdensomeness

Instead of detailing how or why these clients’ names are irrelevant, Aerotek shifts its focus, suggesting that if EEOC knew its clients’ names, such “disclosure

. . . jeopardizes the fundamental ongoing business relationship Aerotek enjoys with its clients.” Aerotek br. at 26. Aerotek’s arguments are inadequate to demonstrate that compliance with the subpoena would be burdensome. This Court has said that a party resisting a subpoena on the ground of burdensomeness must “show that compliance would threaten the normal operation of its business.” Quad/Graphics, 63 F.3d at 648 (citation omitted). A showing of undue burden is required because “[a] subpoenaed party will always be forced to endure some inconveniences and burdens when complying with a subpoena, but these inconveniences and burdens are necessary to the furtherance of a Government agency’s legitimate inquiry and [expecting the party to bear that burden] is in the public’s best interests.” Inspector General, U.S. Dep’t. of Housing and Urban Dev. v. St. Nicholas Apartments, 947 F. Supp. 386, 392 (C.D. Ill. 1996) (citing, Texaco, 555 F.2d at 882). See also, Quad/Graphics, 63 F.3d at 648 (respondent must do more than allege that subpoena compliance might create a burden).

Aerotek does not argue that compiling the information would be unduly burdensome. Actually, Aerotek voluntarily imposed on itself a hefty burden. It took on that burden, however, to avoid compliance with the subpoena by devising an intricate coding system to mask the identities of its clients. Compliance with the subpoena would merely involve tendering a copy of the database in its original form. Indeed, Aerotek has never asserted that producing the information sought would be in any way difficult. Rather, the heart of its burden argument is that giving EEOC its clients’ names would jeopardize its business relationships with its clients. Aerotek br. at 26. Aerotek fails to articulate the basis for its conjecture about the jeopardy to its business. If businesses under investigation could resist reasonably crafted subpoenas by government agencies with the simple, baseless assertion that there is a possibility its business relationships with other companies could be affected, agency investigations would cease and the laws the agencies are charged to enforce would be largely eviscerated.

As of the date of this brief, Aerotek has revealed some of its client names. Presumably the names it selected were attached to requisitions it deemed problematic. If this Court were to grant Aerotek’s request to withhold all remaining client names, the Commission would be in the position of having to request and justify each client name it seeks, significantly hamstringing the EEOC’s investigative efforts, and effectively placing in Aerotek’s hands the ability to control the investigation.

Lacking any substantial arguments about relevance or the burden of compliance, Aerotek indulges in ad hominem attacks on the EEOC’s “aggressive” tactics in unrelated investigations in other cases. Aerotek br. at 26-27. But the expressed concerns of the courts in those cases had nothing to do with the relevance of the information sought, and thus have nothing to do with the propriety of the district court’s order in this case.

CONCLUSION

For the reasons stated above, the EEOC respectfully asks this Court to affirm the district court’s order enforcing the subpoena and to remand for further proceedings.

Respectfully submitted,

P. DAVID LOPEZ s/Susan L. Starr

General Counsel __________________________

SUSAN L. STARR

JENNIFER S. GOLDSTEIN Attorney

Associate General Counsel EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

CAROLYN L. WHEELER Office of General Counsel

Assistant General Counsel 131 M Street, NE, 5^th Fl.

Washington, DC 20507

(202) 663-4727

susan.starr@eeoc.gov

[1] The Commission agrees only to the accuracy and completeness of the dates, statutory provisions and statements relating specifically to jurisdiction in Aerotek’s Statement of Jurisdiction.

[2] “R. __” refers to the record cites in the district court’s docket sheet.

[3] “S.A. __” refers to page cites in Aerotek’s short appendix appended to its opening brief.