Case: 1:10-cv-07109 Document #: 1 Filed: 11/04/10 Page 1 of 6 PageID #:1

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION,

)
)
)
Applicant,
)
)
v.
)
)
AEROTEK, INC.
)
Respondent.
)
__________________________________________)

Case No. 10-7109

APPLICATION FOR ORDER TO SHOW CAUSE
WHY A SUBPOENA SHOULD NOT BE ENFORCED
Applicant, the United States Equal Employment Opportunity Commission (“EEOC” or
“Commission”), respectfully requests entry of an order to show cause why the administrative
subpoena issued by EEOC on September 15, 2009 should not be enforced against Aerotek, Inc.
(“Aerotek” or “Respondent”). In support of this Application, EEOC states as follows:
1.

This is an action for enforcement of a subpoena pursuant to Sections 706, 709,

and 710 of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e-5, 2000e8, 2000e-9.
2.

Jurisdiction is conferred upon the Court by Section 706(f)(3), 42 U.S.C. § 2000e-

5(f)(3), and by Section 11 of the National Labor Relations Act, 29 U.S.C. § 161, as amended,
incorporated in Section 710 of Title VII, 42 U.S.C. § 2000e-9.
3.

Applicant, EEOC, is an agency of the United States of America charged with the

administration, interpretation, and enforcement of Title VII, including, inter alia, the
investigation of charges of unlawful employment practices, and is authorized to bring this action
pursuant to Section 710 of Title VII, 42 U.S.C. § 2000e-9.
4.

Respondent is a national corporation doing business in the State of Illinois. It is
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5.

On May 20, 2008, Marco A. Rivera and Oscar A. Gutierrez (“Charging Parties”)

filed Charges of Discrimination (“Charges”) against Respondent, Charge No. 440-2008-05698
and Charge No. 440-2008-05713, respectively, alleging that Respondent unlawfully
discriminated against them by segregating them, denying them training, and denying them
promotions because of their national origin, Mexican. Charging Parties further alleged that
Aerotek constructively discharged them because of their national origin and retaliated against
them for engaging in protected activities. See Decl. ¶¶ 5c, 5d.
6.

The Commission is also investigating ten other Charges of Discrimination filed

against Respondent’s Illinois facilities. The twelve Charges are being investigated concurrently
by EEOC Investigator Eric G. Lamb 1 . See Decl. ¶ 4.
7.

In the course of investigating the Rivera and Gutierrez Charges, Investigator Eric

Lamb uncovered evidence to suggest that certain Aerotek employees may have been directed to
recruit temporary employees based on prohibited factors such as race, national origin, disability
status, and sex. See Decl. ¶ 5h.
8.

Given the additional allegations of discrimination as described supra, EEOC

determined that it was obligated to investigate the new evidence uncovered during the
investigation. See Decl. ¶ 5i.
9.

Accordingly, on September 15, 2009, EEOC served Respondent with Subpoena

No. CH-09-322 (“Subpoena”), in which EEOC requested seventeen categories of documents
from all of Aerotek’s Illinois facilities, referencing the Rivera and Gutierrez Charges. See Decl. ¶
5j.
1

See also Investigator Lamb’s testimony before Judge Conlon on January 12, 2010, Case No. 09-C-07740,
transcribed by Court Reporter Carolyn Cox (explaining that Mr. Lamb is assigned to investigate several
Charges of Discrimination filed against Respondent).

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10.

On September 29, 2009, Aerotek challenged the Subpoena by serving EEOC with

a Petition to Revoke or Modify the Subpoena (“Petition”). See Decl. ¶ 5k.
11.

On January 19, 2010, EEOC responded to Aerotek’s Petition with a

Determination, in which the Commissioners concluded that fifteen of the Subpoena’s seventeen
categories should be enforced in their entirety, and modified Categories 11 and 12. In the
Determination, EEOC ordered Respondent to produce the materials responsive to Subpoena
Categories 1-6, 10, 12 as modified, and 13-17 within thirty days of the date of the Determination,
and the information requested in Categories 7-9 within sixty days of the date of the
Determination. 2 See Decl. ¶ 5l.
12.

In February 2010, EEOC agreed to limit the temporal scope of its requests to the

years 2007 and 2008 in Categories 7-10 to determine whether Respondent’s burden allegations
were valid. See Decl. ¶ 5m.
13.

Because Respondent did not provide information by the time periods set forth in

the Determination, on April 7, 2010, EEOC again ordered Respondent to produce certain
information requested in the Subpoena. Aerotek responded by submitting partial responses on
April 19, 2010 and May 2, 2010. See Decl. ¶ 5n.
14.

After analyzing the documents provided by Respondent, most of which

represented only one of Respondent’s seven Illinois locations in Schaumburg, EEOC determined
that full compliance with the Subpoena, as modified in the Determination, would not be unduly
burdensome. See Decl. ¶¶ 5p, 5o.
15.

On May 27, 2010, EEOC sent Respondent a letter informing it that the remaining

information requested in the Subpoena would be due by June 11, 2010, and that Respondent
would have to provide information from 2006 to the present, as originally requested. See Decl. ¶
5p.
2

At this time, EEOC is not seeking responses to Categories 11, 15 and 16 of the Subpoena. However, EEOC does
not waive its right to seek this information at a later time.

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16.

On June 10, 2010, Respondent responded via letter refusing to submit all required

information, claiming the requests were irrelevant, overly broad, and unduly burdensome, even
though the Commission had already ruled otherwise in its Determination. See Decl. ¶ 5q.
17.

To date, Respondent has failed to comply with ten of the seventeen categories of

information requested in the Subpoena. See Ex. 7 to Decl. (outlining the subpoena’s requests and
what information has been provided); see also Decl. ¶ 6.
18.

EEOC is seeking enforcement of only seven of the ten outstanding categories of

information. Specifically, EEOC requests that the Court order Respondent to comply fully with
Categories 7-10 and 12-14. See Decl. ¶ 7.
19.

As a result of Respondent’s non-compliance, Aerotek is interfering with EEOC’s

ability to investigate the Charges filed against Respondent and the additional allegations of
discrimination that have been uncovered since EEOC’s investigation began. For example, EEOC
requested that Respondent produce an electronic database, such as an Excel database, so that
EEOC could search and manipulate the database to collect and organize data relevant to its
investigation. In response, Respondent created an Excel database, but refused to produce the
database to EEOC. Instead, Aerotek merely provided paper copies of the Excel database ignoring EEOC’s specific request and denying EEOC’s subsequent requests for production of the
Excel database. Since then, Respondent has continued to suggest that the creation of Excel
databases in response to Categories 7-10 of the Subpoena would be unduly burdensome, even
though Aerotek has already created (but just not produced) an Excel database. See Decl. ¶¶ 5p, 8.
20.

The accompanying Declaration of Eric G. Lamb, EEOC Investigator, (Exhibit A

to EEOC’s Memorandum in Support of Application for Order to Show Cause, filed concurrently
herewith) and the attachments thereto, provide the factual support for this Application. The
Declaration and the attachments are incorporated by reference into this Application.
WHEREFORE, the EEOC respectfully requests that this Court:

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A.

Issue an Order to Show Cause directing Respondent to appear before this
Court on a certain date to show cause why an order should not issue
directing Respondent to comply with the EEOC’s Subpoena;

B.

upon return of this Order to Show Cause, issue an order directing
Respondent to comply with the Subpoena;

C.

award the EEOC its costs in bringing this action; and

D.

grant the EEOC such further relief as may be necessary and appropriate.

Date: November 4, 2010

Respectfully submitted,

/s/ Laura R. Feldman
Laura Feldman
Trial Attorney
A.R.D.C. No. 6296356
Diane I. Smason
Supervisory Trial Attorney
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION
500 West Madison Street, Suite 2000
Chicago, Illinois 60661
(312) 353-6204

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CERTIFICATE OF SERVICE

The undersigned, an attorney, hereby certifies that, having received consent in writing
from Thomas Hurka, Aerotek’s counsel, pursuant to Federal Rule of Civil Procedure 5(b)(2)(e),
she caused a copy of the foregoing to be sent by electronic mail to the following individual:
Thomas F. Hurka
Morgan, Lewis & Bockius LLP
77 West Wacker Dr. Chicago, IL 60601-5094
thurka@morganlewis.com

Date: November 4, 2010

/s/ Laura R. Feldman
Laura R. Feldman

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