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Equal Employment Opportunity Commission v. Joon, LLC

United States District Court, M.D. Alabama, Eastern Division

March 4, 2019

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,
v.
JOON, LLC, d/b/a AJIN USA, Defendant.

          REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE

          GRAY M. JORDEN UNITED STATES MAGISTRATE JUDGE

         This matter is before the court on an application filed by the Equal Employment Opportunity Commission (“EEOC”) to enforce an administrative subpoena served on Joon, LLC, d/b/a Ajin USA (“Ajin”) and Ajin's motion to quash this subpoena. Docs. 1 & 9. The district court referred this case to the Magistrate Judge for the resolution of all pretrial proceedings (Doc. 4), and the Magistrate Judge received oral argument regarding the pending motions on December 6, 2018. Having reviewed the parties' briefs and evidentiary materials, and the stay of this matter having been lifted (Docs. 18 & 21), the Magistrate Judge RECOMMENDS that the EEOC's application (Doc. 1) be GRANTED and that Ajin's motion to quash (Doc. 9) be GRANTED in part and DENIED in part.

         I. BACKGROUND

         On August 2, 2016, the Birmingham District Office of the EEOC received a charge under Title VII of the Civil Rights Act of 1964 alleging that Ajin discriminates against Korean workers on the basis of their national origin. Doc. 1-1 at 2. The charging party is a former Ajin employee named Simon Gang. Doc. 1-1 at 2 & 5. He alleges in the charge that Ajin has been discriminating against its Korean employees since March 3, 2016, and that he “believe[s] these practices continue.” Doc. 1-1 at 5-6. More specifically, Gang charges that Ajin employs its Korean employees through an internship program that subjects the interns to various forms of disparate treatment, including forced unpaid overtime and chauffeuring of Ajin's management team, an effective pay rate lower than the minimum wage, and different timekeeping requirements. Doc. 1-1 at 5-6. Gang claims that the interns are incentivized to acquiesce to this treatment by the hope that Ajin may sponsor them for some form of immigration status in the United States. Doc. 1-1 at 5-6. In 2015, Gang filed a separate charge alleging discrimination on the basis of his own Korean nationality and claiming that this discrimination resulted in his constructive discharge on March 26, 2015. Doc. 9 at 25-26.

         II. DISCUSSION

         The “EEOC is not empowered to conduct general fact-finding missions concerning the affairs of the nation's work force and employers. The only legitimate purpose for an EEOC investigation is to prepare for action against an employer charged with employment discrimination.” EEOC v. Ocean City Police Dep't, 820 F.2d 1378, 1380 (4th Cir. 1987), vacated on other grounds, 486 U.S. 1019 (1988). For this reason, the existence of a valid charge is a prerequisite to the enforcement of an EEOC subpoena. EEOC v. Shell Oil Co., 466 U.S. 54, 65 (1984) (“Accordingly, we hold that the existence of a charge that meets the requirements set forth in § 706(b), 42 U.S.C. § 2000e-5(b), is a jurisdictional prerequisite to judicial enforcement of a subpoena issued by the EEOC.”).

         The Eleventh Circuit has held, however, that “the role of a district court in a proceeding to enforce an administrative subpoena is sharply limited; inquiry is appropriate only into whether the evidence sought is material and relevant to a lawful purpose of the agency.” EEOC v. Kloster Cruise Ltd., 939 F.2d 920, 922 (11th Cir. 1991). This is not the proper time for assessing potential defenses to the charges set forth in a valid claim. EEOC v. Schwan's Home Serv., 707 F.Supp.2d 980, 991 (D. Minn. 2010), aff'd, 644 F.3d 742 (8th Cir. 2011). Instead, the court “may inquire into (1) whether the administrative investigation is within the agency's authority, (2) whether the agency's demand is too indefinite, and (3) whether the information sought is reasonably relevant.” EEOC v. Tire Kingdom, Inc., 80 F.3d 449, 450 (11th Cir. 1996). Once the EEOC makes this showing, “the court will enforce the subpoena ‘unless the subpoenaed party demonstrates that judicial enforcement of the subpoena would amount to an abuse of the court's process' or would create an undue burden on the subpoenaed party.” Schwan's Home Serv., 707 F.Supp.2d at 986-87 (quoting EEOC v. Technocrest Sys., Inc., 448 F.3d 1035, 1039 (8th Cir. 2006)). Ajin claims that the EEOC has not made an initial showing of a valid charge, and alternatively argues that its compliance with the subpoena would create an undue burden.

         A. Validity of the Charge

         In disputing the EEOC's initial showing, Ajin claims that the charge is untimely and that it is not based on Gang's personal knowledge.

         1. Timeliness

         An EEOC charge must be “filed within one hundred and eighty days after the alleged unlawful employment practice occurred.” 42 U.S.C. § 2000e-5(e)(1). However, because a subpoena enforcement action is not the proper vehicle for probing all potential defenses to a charge, a “court may refuse to enforce an administrative subpoena on timeliness grounds ‘[o]nly if the charge . . . shows on its face that it is untimely, is concededly out of time, or [untimeliness] [i]s otherwise apparent.” Schwan's Home Serv., 707 F.Supp.2d at 992 (quoting EEOC v. City of Norfolk Police Dep't, 45 F.3d 80, 83 (4th Cir. 1995)). Disputed facts relating to timeliness should not be resolved at the subpoena enforcement stage. Pac. Maritime Ass'n v. Quinn, 491 F.2d 1294, 1296 (9th Cir. 1974).

         Ajin takes the position that the 2016 charge “is, on its face, untimely and not valid.” Doc. 9 at 5. But, in the same breath, Ajin explains that its timeliness argument is not based solely on the facts appearing on the face of the 2016 charge, but on the facts in this charge read in conjunction with the fact, alleged in Gang's 2015 charge, that Ajin constructively terminated his employment on March 26, 2015. Doc. 9 at 7. Stripping away the 2015 charge leaves only the temporal allegations that do appear on the face of the charge at issue-that the discrimination commenced on March 3, 2016 and continued through the filing of the charge. Ajin has not provided any authority for the unorthodox position that the district court may inquire into facts that do not appear on the face of a charge when deciding whether that charge is timely “on its face.”

         Moreover, the charge includes the allegation that Gang “believe[s] these practices continue.” Doc. 1-1 at 6. In Quinn, 491 F.2d at 1295, the Ninth Circuit had the occasion to address the functionally identical allegation that “[f]rom October 1968 [and] continuing to this present time I have been denied the opportunity to work at the supervisorial level by the above organizations. I believe this treatment is discriminatory in nature.” In support, the charge identified only one act of discrimination, and that act had occurred more than 180 days earlier. Id. In response to a timeliness objection to the subpoena, the EEOC maintained that the continuing nature of the violation absolved the otherwise late filing. Id. at 1296. On these facts, the Ninth Circuit held that the timeliness argument had been raised prematurely: “We do not know whether or not the violation, if any, is a continuing one; one of the reasons for conducting the investigation is to determine the answer to that very question.” Id.

         Just as in Quinn, Ajin's timeliness objection is premature when the face of the charge indicates that the discrimination is continuing in nature. The EEOC has the right to investigate a valid charge and to develop facts relevant to the charge. See 42 U.S.C. ยง 2000e-8(a). Once it has done so, Ajin's timeliness argument will be ripe. It would be unwise and improper for the court to wade into this question with ...


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