No

INTRODUCTION

In seeking panel rehearing, Aerotek contends that this Court “misapprehend[ed] the law and facts regarding the timeliness of Aerotek’s petition to revoke the EEOC’s subpoena.” Aerotek Petition for Rehearing (Aerotek Reh. Pet.) at 2. Specifically, Aerotek argues that “the Panel erred when it concluded that the factual record confirmed that Aerotek failed to submit a timely Petition to Revoke the EEOC’s Subpoena . . . because the record is silent as to the date on which Aerotek received the Subpoena[.]” Id. Additionally, Aerotek argues that before relying on the Commission’s determination that its petition to revoke was untimely, this Court had to address the antecedent question of whether the Commission had the authority to issue such a decision in the first place. Id. at 9-10.

STATEMENT OF THE FACTS

The Commission provides below the salient facts that support this Court’s resolution of the issues raised on rehearing.

A. EEOC’s Subpoena and Aerotek’s Petition to Revoke or Modify

Aerotek employees Marco Rivera and Oscar Guiterrez filed EEOC charges alleging national origin discrimination. R.7-2 at 49, D.4-1, Ex.4-Aerotek Request to Revoke or Modify Subpoena (Aerotek Req. to Revoke) at 2; ASA 30 (Rivera charge); R.7-2 at 49, D.4-1, Ex.4-Aerotek Req. to Revoke at 2; ASA 29 (Gutierrez charge).[1] EEOC also had ten other open charges against Aerotek alleging discrimination in various employment practices based on race, national origin, gender, age, and disability, retaliation, and racial and sexual harassment. R.7-2 at 27-29, D.4-1, Ex. A-Lamb Decl. at 1¶4, 2¶5(f), 3¶5(g); R.7-2 at 187-89, D.15-1, Ex. A- P.I. Tr. at 19-21 (Lamb testimony).

To investigate the claims of potential violations, on September 15, 2009, the EEOC issued Subpoena No. CH 09-322, the subject of this appeal. The 17-category subpoena, which cited Rivera and Gutierrez’s charges, requested personnel and operational information for six locations for the timeframe of January 2006 to the present, a period which at the time of issuance spanned less than four years. See ASA 31-36. Aerotek received and signed for the subpoena on September 21, 2009. See ASA 39 (EEOC Determination); EEOC Rehearing Addendum (EEOC Reh. Add.) 1 (certified mail receipt). On September 29, 2009, Aerotek requested a modification or revocation of the EEOC subpoena, arguing that the requested information was irrelevant to the two national origin charges, temporally overbroad, unduly burdensome, and privileged. R.7-2 at 47-59, D. 4-1, Aerotek Req. to Revoke at 1-12.

B. EEOC’s Determination and Ratification

In January 2010, the Commission issued a determination denying Aerotek’s petition but it modified the subpoena by slightly restricting the timeframe for certain requests or reducing or foregoing the production of subpoenaed information. See generally ASA 37-48; R.7-2 (D.4-1, EEOC Determination). The determination was made by two Commissioners, Acting Chair Stuart Ishimaru and Commissioner Constance Barker, who had been delegated the authority to act on behalf of the Commission on December 18, 2009, before Vice Chair Christine Griffin departed. ASA 7; EEOC Add. 54-1 (Delegation Order).

On January 19, 2010, in its determination, the EEOC denied Aerotek’s petition to revoke on two grounds. As a preliminary matter, the Commission determined that Aerotek’s request to revoke or modify was untimely because EEOC regulations require respondents to file a petition to revoke within five business days after service of the subpoena at issue. 29 U.S.C. § 161(1);[2] 29 C.F.R. § 1601.16(b)(1).[3] Here, according to the certificate of service, Aerotek received the EEOC’s subpoena on September 21, and waited until September 29, more than five business days later, to file its petition. ASA 39. The EEOC ruled that “by filing a tardy petition . . . , Aerotek waived its objections.” Id.

The Commission then reviewed Aerotek’s subpoena and alternatively concluded that: (1) the subpoena should be enforced with respect to fifteen of the seventeen categories, ASA 37, 40-47; (2) that Request 12 should be modified to require only two sample client contracts, ASA 42; and (3) Aerotek would not be required to produce the information indicated in Request 11 yet. Id. The Commission also rejected Aerotek’s request to forego creating an electronic database and considered its arguments regarding burdensomeness to be “conclusory” and failing to provide any meaningful basis upon which to evaluate the potential undue burden. ASA 45. Accordingly, the Commission set new deadlines ordering Aerotek to comply with the Subpoena as to Requests 1-6, 10, 12 as modified, and 13-17 by February 10, 2010, and to produce the information solicited by Requests 7-9 by March 12, 2010. ASA 47. Aerotek did not ask the Commission to reconsider its untimeliness determination, or object to its ruling in the absence of a quorum.

On March 27, 2010, the recess appointments of Chair Jacqueline Berrien and Commissioners Chai Feldblum and Victoria Lipnic were made. D. 11, Aerotek’s Motion to Dismiss at 3. Following EEOC’s reconstitution to its full complement of five commissioners, the agency issued a Commission resolution on April 29, 2010, that ratified all 25 matters the two Commissioners had acted on pursuant to delegation during the period of December 24, 2009 to April 7, 2010. Aerotek Br. at 13; ASA 5; Add. 54-2 (Ratification resolution). Specifically, the resolution ratified the two commissioners’ final determination as to Aerotek’s petition to revoke. See Add. 54-2. Again, Aerotek did not petition the full Commission to reconsider the determination on the ground that the agency lacked a quorum at the time of the initial determination or that the two commissioners erred in finding that the petition was untimely.

C. Aerotek’s Continued Non-Compliance and District Court’s Decision

Although the Commission’s final determination modified the subpoena and set new deadlines, and the full Commission had ratified the initial enforcement determination, Aerotek still did not produce documentation and refused to create electronic databases. On November 4, 2010, EEOC sought enforcement by the district court of seven of the ten outstanding requests in its subpoena. R.7-2 at 3, D.1 (EEOC application); R.7-2 at 32, D.4-1, Ex.A-Lamb Decl. at 6¶¶6-7. The district court enforced the EEOC’s subpoena. ASA 16-28. At the outset, the district court denied Aerotek’s motion to dismiss based on a challenge to the district court’s jurisdiction. The court held that although the Commission had only two commissioners when it denied Aerotek’s petition to modify or revoke the subpoena, the lack of quorum did not affect the district court’s jurisdiction. Specifically, the court held that New Process Steel v. NLRB, 130 S. Ct. 2635 (2010), holding that a ruling issued by two members of the National Labor Relations Board (NLRB) was unenforceable, had no relevance in this case. The court noted there were textual differences between the National Labor Relations Act and Title VII, and that the full Commission had ratified the determination of the two commissioners well before the EEOC filed this subpoena enforcement action in court. ASA 19-23. The district court also rejected Aerotek’s challenge to the subpoena’ relevance and breadth, and concluded that compliance would not be unduly burdensome. ASA 26-28. To date, Aerotek has not fully complied with the EEOC’s subpoena.

ARGUMENT

I. THIS COURT PROPERLY DETERMINED THAT AEROTEK’S PETITION TO REVOKE THE COMMISSION’S SUBPOENA WAS UNTIMELY.

Aerotek’s central argument in support of rehearing is that the record “is silent as to the date on which Aerotek received the Subpoena[.]” Petition at 2. To the contrary, the record is not silent on this point, and Aerotek’s belated effort to confuse the facts by submitting an attorney’s emailed reference to the date he received the subpoena cannot undermine this Court’s reliance on the Commission’ s and lower court’s rendition of the relevant dates of events that transpired during the administrative proceedings. Aerotek’s challenge to this Court’s timeliness determination is without merit.

The district court’s docket reflects that the EEOC’s determination to enforce the agency’s subpoena was part of its record. D.4-1 at 36-47 (EEOC Determination); ASA 13 (transcript of quorum hearing referencing that Exhibit 5 was Commission’s determination). Thus, the Determination was also part of this Court’s docket. R.7-2 at 67-78. In the Determination, the Commission noted that Aerotek had waived its objections to the subpoena because its petition to revoke was untimely. Specifically, the EEOC said:

Here, EEOC sent the Subpoena via certified mail on September 15, 2009. According to the certificate of service, Respondent received the Subpoena no later than September 21, 2009. However, Respondent did not submit the Petition to EEOC until September 29, 2009, more than five business days after receipt of the Subpoena. By filing a tardy petition to revoke or modify the Subpoena, Aerotek waived its objections.

D.4-1 at 38, EEOC Determination at 3 (emphasis added); R.7-2 at 69. The Commission’s decision on this point rested on documentary evidence, i.e. the certificate of service, that was part of its administrative record. In that Aerotek never challenged the Commission’s determination of untimeliness when it was issued or after the ruling was ratified by the five commissioners, and did not object to this finding in its motion to dismiss in the district court, D.4, Aerotek Motion to Dismiss; R.29, Per Curiam Order at 4,[4] there was no reason for the EEOC to include additional documentary support in the district court record for the agency’s determination beyond its own ruling.

That being said, the certificate of service, which is in the addendum to this brief, clearly establishes that Aerotek received the EEOC subpoena on Monday, September 21, 2009. Aerotek then had five days to petition for revocation or modification. See note 3 supra.

Applying this regulation, five business days after September 21 would have meant that the petition had to be filed by Monday, September 28 (excluding the weekend). However, Aerotek irrefutably did not file its petition until Tuesday, September 29, six days after it received the subpoena. R.7-2 at 47-59, D. 4-1, Aerotek Req. to Revoke at 1-12. Therefore, this Court’s determination that Aerotek’s petition to revoke was untimely is correct.

Although Aerotek repeatedly characterizes the issue of its untimely petition to revoke as a timeliness “defense” that the Commission somehow waived or failed to prove, of course it was Aerotek’s burden to produce evidence that it had satisfied the administrative prerequisites to preserve its objections to enforcement of the subpoena. Rodriguez v. Holder, 413 Fed. Appx. 396, 397 (2d Cir. 2011) (when service is by certified mail, a petitioner may overcome the presumption of notice with “substantial and probative evidence such as documentary evidence from the Postal Service, third party affidavits, or other similar evidence” demonstrating that there was no delivery, improper or later delivery) (quoting Matter of Grijalva, 21 I. & N. Dec. 27, 37 (BIA 1995)). This it failed to do.

Aerotek’s submission at this late date of a redacted email from its attorney stating that he received the subpoena on September 22 is not reliable evidence of the date Aerotek received the subpoena (and of course, it is not a part of the record below, any more than the certificate of service is). The subpoena was served on Aerotek, an Aerotek official signed the certificate of service on September 21, and the date the subpoena made its way to Aerotek’s counsel is beside the point. Cf. Threadgill v. Moore, 269 F.3d 848, 850 (7th Cir. 2001) (when plaintiff and attorney each receive a right to sue notice on different dates, the earlier date of receipt starts the limitations period); Fuentes–Argueta v. INS, 101 F.3d 867, 871 (2d Cir. 1996) (a signed certified return receipt is sufficient proof of attempted delivery, regardless of who signed it because “[t]here is no requirement that the certified mail return receipt be signed by the [addressee]or a responsible person at his address to attempt service”).

The operative date triggering the time limit for filing a petition to revoke is, as Aerotek states, the date Aerotek received the petition, Aerotek Reh. Pet. at 5, so September 21 is the controlling date for determining the timeliness of the petition. Aerotek never offered competent evidence to rebut the fact that the subpoena was served on September 21, and this Court was entitled to rely on this unchallenged factual assertion in the Commission’s determination even absent the certificate of service appended to this brief. Cf. Russell v. City of Milwaukee, 338 F.3d 662, 666 (7th Cir. 2003) (“‘[t]he principal importance of the certificate of service is to provide the Court with clear proof that service has been accomplished.’ However, the absence of a certificate does not require the invalidation of the paper . . . where the court finds that service was accomplished.”) (internal citation omitted). Because the untimely nature of Aerotek’s petition was captured in the Commission’s determination, that portion of the agency’s ruling was never challenged by Aerotek until its Reply Brief in this Court, and the Determination was an EEOC exhibit to the Commission’s application for enforcement, this Court’s ruling was based on evidence in the district court’s record.

II. THIS COURT PROPERLY DECLINED TO ADDRESS THE QUORUM ISSUE.

Aerotek’s entire rationale for asserting that this Court must address the quorum issue is that if the two-commissioner ruling was invalid, there is no other record support for the affirmance based on the untimeliness of the petition. However, as demonstrated above, the timing of the receipt of the subpoena and filing of the petition are facts which this Court can verify independently of the Commission’s determination.

Aerotek also contends that the Commission “waived” its right to argue that the petition was untimely, first because the Commission decision addressed the merits of Aerotek’s arguments about the relevance and burdensomeness of the information sought, Aerotek Reh. Pet. at 10-11, and second because the Commission did not argue this point in the district court. Id. at 11-15. The first proposition makes no sense. The Commission, in its role of reviewing a petition to modify, cannot “waive” an argument that may be advanced in subsequent enforcement proceedings in court, especially not by ruling on the very issue in dispute. The fact that the Commission did an additional or alternative analysis of the merits of Aerotek’s arguments does not alter the fact that it also definitively ruled that the petition was untimely filed.

As to the second proposition, the EEOC in fact did argue to this Court that Aerotek’s petition was untimely, based on the factual statements made in the Commission decision, and reiterated by the district court. The point of that argument was to refute Aerotek’s contention that the district court had lacked jurisdiction over the subpoena enforcement proceeding based on its interpretation of the Supreme Court’s decision in New Process Steel v. NLRB, 130 S. Ct. 2635 (2010). In its brief, the Commission referred to the earlier determination that the petition was untimely to suggest that the untimely petition was equivalent to no petition, and that the district court undoubtedly had jurisdiction over the enforcement proceeding regardless of whether the two-commissioner decision was a valid exercise of authority. [5] Aerotek, as explained above, had never contested the determination that its petition was untimely, and the Commission relied on that fact to say that its challenge to the district court’s jurisdiction was unfounded. This Court then concluded that it could rely on the fact and argument that the untimely petition was essentially a nullity as a basis for affirmance of the district court’s enforcement order without confronting the irrelevant question of whether the Commission could initially act on such a matter without a quorum.

Aerotek’s insistence that the EEOC waived this argument is unavailing without its lynchpin argument about whether the critical fact is a matter of record or independently ascertainable by this Court based on the supplemental information provided by both parties in these briefs on panel rehearing. Moreover, this Court is free to consider the timeliness argument even if EEOC had waived the argument “where justice demands more flexibility.” Walsh v. Mellas, 837 F.2d 789, 800 (7th Cir. 1988); see also In re Sokolik, 635 F.3d 261, 268 (7th Cir. 2011) (“it is within this court's discretion to find an exception to waiver and to consider an appellant's argument despite the appellant having waived it”).

The Commission notes that even if the quorum issue were relevant, the district court properly decided that it had jurisdiction to enforce the EEOC’s subpoena. As the Commission argued to the district court and to this Court, New Process Steel is not controlling here for the reasons explained in its brief. EEOC Br. at 20-24. Most notably, Aerotek’s quorum argument is academic because, as the district court observed, “if this Court were to invalidate the decision on Aerotek’s petition to revoke or modify because the decision was initially made by only two members of the Commission, the ultimate result would likely be the same. The EEOC [as the full five-member complement] would likely make the same decision denying the petition with the two modifications, and initiate the same enforcement proceedings now before this Court if Aerotek failed to comply.” ASA 23, D.18, District Court Decision at 7.

This situation is similar to what happened in New Process Steel. When this Court remanded that case to the NLRB after the Supreme Court vacated this Court’s decision, see 2010 WL 4137308 (7^th Cir. Aug. 3, 2010), the Board promptly affirmed the underlying decision by the administrative judge on the same basis “and for the reasons stated in the decision” of the prior two members, and incorporated their earlier decision by reference. 2010 WL 3324873 (NLRB Aug. 23, 2010). The EEOC effectively accomplished the same end by ratifying the subpoena ruling issued by two commissioners in this case. For this reason, no purpose would be served by vacating the district court’s decision and ordering such a remand here. Having been ratified by the full Commission, the propriety of the two commissioners’ decision is a moot question at this point. Nothing would be gained by Aerotek (except more delay), both judicial and agency resources would be wasted, and the rights of potential discrimination victims would be subverted if the EEOC’s enforcement proceeding were dismissed to remand the petition to the Commission to vote again. Therefore, this Court should not revisit its decision affirming the district court’s enforcement of the subpoena. Rather, because this ruling reaffirms and clarifies the significance of the Commission’s five-day rule for a respondent’s petition, and nothing in the anti-discrimination statutes or the EEOC’s regulations precludes this panel’s decision, the panel properly affirmed the district court’s enforcement decision on this alternative ground.[6]

CONCLUSION

The Commission considers Aerotek’s rehearing challenge to be just another distraction in its arsenal of delay tactics designed to stall the Commission’s investigatory attempts simply to determine whether there is any reason to believe that Aerotek unlawfully discriminated against Charging Parties Rivera and Guitierrez, as well other internal and contract employees. This is unacceptable behavior particularly in a subpoena enforcement proceeding, which is supposed to be summary in nature. EEOC v. Tempel Steel Co., 814 F.2d 482, 485 (7th Cir. 1987) (litigating "every possible defense” at the subpoena enforcement stage would subject administrative investigations to “great delay"). Such great delay has occurred and continues in this case. Accordingly, the EEOC urges this Court to deny Aerotek’s petition for rehearing, and order it to comply with the Commission’s three-year old subpoena by an immediate date certain.

[1] “ASA” refers to Aerotek’s Short Appendix in its opening brief. “D” refers to an entry’s docket number on the district court docket. “R.” refers to an entry’s record number on the 7^th Circuit docket.

[2] Within five days after the service of a subpena [sic] on any person requiring the production of any evidence in his possession or under his control, such person may petition the Board to revoke, and the Board shall revoke, such subpena [sic] if in its opinion the evidence whose production is required does not relate to any matter under investigation, or any matter in question in such proceedings, or if in its opinion such subpena [sic] does not describe with sufficient particularity the evidence whose production is required. 29 U.S.C. § 161(1).

[3] Any person served with a subpoena who intends not to comply shall petition the issuing Director or petition the General Counsel, if the subpoena is issued by a Commissioner, to seek its revocation or modification. Petitions must be mailed to the Director or General Counsel, as appropriate, within five days (excluding Saturdays, Sundays and Federal legal holidays) after service of the subpoena. 29 C.F.R. § 1601(b)(1).

[4] Aerotek’s unsupported, conclusory statement that it disputed the Commission’s timeliness determination in its Reply Brief is too late. See Aerotek Reply Br. at 3 n.1. See United States v. Wescott, 576 F.3d 347, 354 (7th Cir. 2009) (“Arguments raised for the first time in a reply brief are waived.”)

[5]Aerotek states that its “careful reading of the record is not mere hair-splitting by Aerotek to cloud the issue and avoid the Panel’s ruling.” Aerotek Reh. Pet. at 6. However, it asserts that, “[u]nder the EEOC’s regulations, the Determination is supposed to be issued ‘[w]ithin eight calendar days after receipt or as soon as practicable,’” Id. at 6 n.3 (citing 29 C.F.R. § 1601.16(b)(2), and that the “two commissioners did not issue their Determination for more than three months.” Id. at 6. The regulation actually states that “[w]ithin eight calendar days after receipt or as soon as practicable, the General Counsel or the Director, as appropriate shall . . . make a proposed determination on the petition, and submit the petition and the proposed determination to the Commission for its review and final determination.” There is no deadline in the regulations by which the Commission must issue its final determination.

[6] EEOC officials believe this Court’s resolution of this case is correct and have recently issued operational guidance to conform Commission practice to the regulation’s requirement of timely petitions for revocation or modification. The guidance directs that untimely petitions will simply be rejected and no alternate rulings on the merits of the respondent’s arguments will be issued. See EEOC Reh. Add. 2.