Case: 1:15-cv-00275 Document #: 16 Filed: 03/10/15 Page 2 of 13 PageID #:244 1 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION 2 3 4 5 6 7 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, -vsAEROTEK, INC., Defendants. 8 9 10 11 12 13 14 15 16 17 ) ) ) ) ) ) ) ) ) ) No. 15 C 275 Chicago, Illinois February 18, 2015 9:35 o'clock a.m. TRANSCRIPT OF PROCEEDINGS - MOTION BEFORE THE HONORABLE MILTON I. SHADUR APPEARANCES: For the Plaintiff: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 500 West Madison Street Suite 2000 Chicago, Illinois 60661 BY: MR. AARON R. DeCAMP For the Defendant: MORGAN LEWIS & BOCKIUS, LLP 77 West Wacker Drive 5th Floor Chicago, Illinois 60601 BY: MR. THOMAS F. HURKA 18 19 20 21 22 23 24 25 Court Reporter: ROSEMARY SCARPELLI 219 South Dearborn Street Room 2304A Chicago, Illinois 60604 (312) 435-5815 1 Case: 1:15-cv-00275 Document #: 16 Filed: 03/10/15 Page 3 of 13 PageID #:245 2 1 THE CLERK: 15 C 275, EEOC versus Aerotek. 2 MR. DeCAMP: Good morning, your Honor, Aaron DeCamp 3 on behalf of the EEOC. 4 5 MR. HURKA: Good morning, your Honor, Tom Hurka on behalf of Aerotek. 6 THE COURT: Good morning. Well, I read this 7 material and in a sense -- and I don't want to be 8 misunderstood on this one. I am no fonder of a -- fishing 9 expeditions than anybody. But I get the sense that the 10 Aerotek response is sort of like saying, "Look, we gave you 11 all these haystacks, and it is up to you to find the 12 needles." 13 It is very hard for somebody, for an agency, even 14 with its resources, that is provided with a massive amount of 15 material, to try to focus its investigation appropriately 16 without some help at least. As I understand it, EEOC says, 17 "Look, based on what we looked into, we found a whole flock 18 of instances of situations that point to potential violations 19 of the Age Discrimination in Employment Act." The argument 20 that responds by saying, "Well, but you are targeting a lot 21 of people who aren't protected" has put the thing in reverse 22 because it is the fact that people who are not in the 23 protected category have gotten, for example, favored 24 treatment that serves to demonstrate, potentially to 25 demonstrate, the existence of age discrimination. Case: 1:15-cv-00275 Document #: 16 Filed: 03/10/15 Page 4 of 13 PageID #:246 1 3 So the fact that they are using that as a kind of 2 springboard simply says "Look, we found -- we found some 3 smoke that indicates that there is fire and we would like to 4 look into it further" and not to be simply faced by a 5 response that says "We have given you the whole universe. Go 6 hunt." 7 You know, Judge Posner said -- I was going to say 8 famously, only I am not sure that that is right, you know, in 9 a different context -- that judges are not like pigs hunting 10 for truffles. And that is sort of the kind -- the way I read 11 this response. 12 Now, I am not faulting Aerotek in that regard, but 13 it seems to me that there ought to be some room for 14 accommodation to work out something that is reasonable and 15 doesn't simply rely on the fact, we gave you 1,432,000 pieces 16 of paper and go look. So the -- I don't know -- I really 17 don't find the flat-out opposition to the application for an 18 order to show cause to be persuasive. 19 On the other hand, I don't know that the EEOC's 20 request is one that can't be appropriately dealt with without 21 the kinds of -- kinds of things that you say are wholly out 22 of proportion to EEOC's claimed investigative objectives. 23 Now, I recognize, by the way, that Aerotek is 24 serving a lot of masters, but when -- when it processes 25 those, it takes on the responsibility. You know, I don't Case: 1:15-cv-00275 Document #: 16 Filed: 03/10/15 Page 5 of 13 PageID #:247 4 1 know what effort it makes, for example, to police the 2 requests that are made of it by employers who say, "We would 3 like a bright and shiny person two years out of college for 4 this job," when it may be a job that would be just as 5 fillable by somebody who is 42 years old and therefore in the 6 protected category. 7 So that -- I will tell you that is the dilemma that 8 I see being reflected by the EEOC's position and Aerotek's 9 response. Have you thought about or sought to do something 10 11 that would accommodate both sides' concerns? MR. HURKA: Well, we -- there hasn't been much 12 dialogue, unfortunately. We did make some proposals because 13 there are, apparently, 62 facilities where they found these 14 requisitions. 15 THE COURT: Right. 16 MR. HURKA: And they found -- 17 THE COURT: They found something. 18 MR. HURKA: And our response was, well, tell us the 19 requisitions that are offensive and provide the information 20 related to those, the client, the employees, et cetera. They 21 said, "No, we want every client, every employee from that 22 facility, even if we found one offensive requisition." Well, 23 that sweeps in thousands -- actually 22,000 clients as 24 compared to maybe 50 or 100. So we offered that if they show 25 us what are the offensive ones, we will give you the Case: 1:15-cv-00275 Document #: 16 Filed: 03/10/15 Page 6 of 13 PageID #:248 5 1 information for those offensive ones, the clients, the temps, 2 who was placed. 3 THE COURT: That doesn't do the -- that doesn't 4 serve the purpose. The -- look, again, I am not going to 5 tell Aerotek how to conduct its business, but it would seem 6 to me that having been alerted to the fact that some of these 7 clients engage in activities that on their face are age 8 discriminatory, that Aerotek might have responsibility for 9 doing some better policing of its own clients before it takes 10 11 them on in that regard. And I am -- and I don't mean to minimize the 12 problem that is involved here, but I have got to tell you, 13 you know, the two sides are like ships that pass in the 14 night, at least as I read it here. 15 MR. DeCAMP: Your Honor, just -- 16 THE COURT: Yes? 17 MR. DeCAMP: And, your Honor, just to clarify, EEOC 18 -- they -- Aerotek has already produced a portion of the 19 database. And this is all about -- this is not about paper. 20 This is about a database. And so they have already produced 21 the database, but they took out certain parts of the database 22 and said that we are not entitled to them. And that is what 23 we are asking for now, is just for them to fill -- just to 24 produce the actual full database. And Aerotek hasn't claimed 25 that they are going to be burdened to producing this Case: 1:15-cv-00275 Document #: 16 Filed: 03/10/15 Page 7 of 13 PageID #:249 1 2 6 information. They have raised issues that EEOC is going to 3 contact, you know, 700,000 people, which we are not an agency 4 of that scope. This is not the type of agency that we are 5 going to be able to afford that sort of contacting people all 6 over -- all over the country. 7 But the issue here is not -- there is not -- there 8 is not a burden on Aerotek to produce this information, 9 especially when they have already established that the 10 information they produced is relevant. But the issue is they 11 decide to withhold key information about the information they 12 have already produced, so the EEOC can't go to the next step 13 and actually further investigate. 14 MR. HURKA: I mean I think that the only correction 15 there I think is that with regard to the clients, we have not 16 produced that information. With temp employees we have. 17 MR. DeCAMP: Okay. But that doesn't -- they 18 haven't been able to produce the names of the clients. So it 19 is impossible to know, well, maybe this client they -- there 20 is -- there may be, for lack of a better phrase, a BFOQ, a 21 bona fide occupational qualification for someone being 22 younger or something that for us -- but, "Well, there may be 23 reasons for -- that there is people self-selected out of this 24 position." We don't even know who these clients are. 25 And so for us we are -- we are shooting in the Case: 1:15-cv-00275 Document #: 16 Filed: 03/10/15 Page 8 of 13 PageID #:250 7 1 dark. We see numbers on a computer screen. All we need is 2 for them to fill out the database, which literally would be a 3 key stroke, as far as we understand it, just what you have as 4 a whole rather than redact information for us not to be able 5 to look -- 6 THE COURT: What is -- 7 MR. HURKA: With respect to the client issue, your 8 Honor, they have identified which clients they believe have 9 the offensive requisitions. They have never disclosed the 10 clients to us. 11 THE COURT: That is really not -- 12 MR. HURKA: And I can even -- we will tell you -- 13 THE COURT: I have got to tell you I think you are 14 missing the ball on that. You just are. What you don't 15 understand is that what they have done essentially is to find 16 a sample. Okay? And they are trying to find out whether 17 that sample is somehow fairly representative of a larger 18 universe or not. Now, the only way for them to do that is 19 not to say, "Well, concentrate on the samples." That doesn't 20 advance them at all. 21 MR. HURKA: Well, your Honor, I disagree. They 22 don't represent it as a sample. They have the entire 23 universe of all requisitions. That is all they found. It is 24 not a sample. They have every requisition from all -- from 25 everywhere around the country. Case: 1:15-cv-00275 Document #: 16 Filed: 03/10/15 Page 9 of 13 PageID #:251 1 8 THE COURT: No, no, no, what I am saying is they 2 have identified a sample of what may -- what looks like 3 offenses. And what they are asking is that they want to find 4 out whether that is really just an aberration, an occasional 5 thing, in which case they are not going -- not going to be 6 able to pursue because there is no point in pursuing it on 7 any kind of global basis or whether it is indicative of a 8 larger problem than the one that they have been able to 9 identify so far. 10 And again you keep -- you keep trying to cabin this 11 thing in a way that is not fair to the idea of what the 12 agency is responsible for doing. They are responsible for 13 trying to see that there are not violations of ADEA. And 14 what they have done up to now is to say "Based on what we 15 have seen we know that there are sufficient number of these 16 situations that deserve further inquiry." And the inquiry is 17 not in -- simply into the ones that they have already 18 identified. That is not much of a -- much of an 19 investigation, is it? 20 MR. HURKA: And again, your Honor -- 21 THE COURT: So I think you are -- I think your 22 approach is missing the whole point of what it is that they 23 are seeking to do. And I really do not understand the 24 opposition that is essentially predicated on the idea we have 25 given them everything and let them go hunt. That is not -- Case: 1:15-cv-00275 Document #: 16 Filed: 03/10/15 Page 10 of 13 PageID #:252 9 1 MR. HURKA: That is not our position, your Honor. 2 We have given them every requisition. Our understanding is 3 that they have done an exhaustive search for every 4 requisition. They have identified the offensive ones. Not a 5 sampling, they have identified all the offensive ones. Now 6 they want to get additional information to go further. And 7 we have given that information. 8 THE COURT: That isn't how I read it. 9 MR. HURKA: They are going beyond requisitions. 10 Unless they -- you want to state on the record today that is 11 only a sample, but the brief says they found hundreds. 12 THE COURT: That isn't how I read it. And if this 13 continues to be Aerotek's position, I am simply going to 14 grant the order because you are really inverting the problem 15 by the manner in which you keep responding to it. You are -- 16 you are responding to it in a different way from what it is 17 that I understand EEOC to be attempting. 18 And again I am -- I should be under -- you know, 19 this is a case that it administratively got opened and closed 20 the same day I think; in other words, it is not treated as an 21 active case on my calendar. I am not going to be placing the 22 thing beyond this. It is simply a matter of should -- what 23 should be done with the subpoena. And you have -- and I 24 think you have really been nonresponsive in real-world terms 25 to the subpoena, to the effort that the subpoena is intended Case: 1:15-cv-00275 Document #: 16 Filed: 03/10/15 Page 11 of 13 PageID #:253 10 1 to reflect. 2 And if what they are saying is give them the rest 3 of the database to enable them to do that, they may totally 4 strike out. They may -- they may find that it is not worth 5 pursuing. I don't know that. But they can't do it without 6 the raw material. And you have -- and you have not furnished 7 all the raw material when you say here -- here are -- coming 8 back to the homely analogy that I started out with, you are 9 not solving it by saying "We have given all the haystacks. 10 11 Go hunt. Find the needles." Not responsive. MR. HURKA: Well, your Honor, if I may just 12 clarify. As Mr. DeCamp has stated, we did produce all the 13 information of all the temps who have been placed. What we 14 did not give is the identifiers, meaning their name, 15 telephone and address. They have the data to crunch and do 16 the analysis and find out if there has been any disparate 17 treatment. We did get the agent permission, by the way. So 18 they have all that. They just don't have the information to 19 call individuals. And our response is identify which 20 requisitions, which individuals, we will give it to you, but 21 we don't want to give you every single person and every 22 single client. If they ask for certain individuals and 23 clients, we will give it to them. 24 MR. DeCAMP: They are trying to have us prove as we 25 go, your Honor. And it is very frustrating. We are going to Case: 1:15-cv-00275 Document #: 16 Filed: 03/10/15 Page 12 of 13 PageID #:254 11 1 end up going through this whole process years and years in 2 advance because they objected to every time we try to get 3 information on the individuals or on -- they keep -- they 4 keep on objecting to the subpoena -- 5 THE COURT: I am going to grant the enforcement of 6 the subpoena. That -- what I have just heard from you is 7 really a -- it is -- you know, all of us get boring when we 8 start repeating ourselves. I am not -- I am not exempt from 9 that either, I can assure you. But it does not really solve 10 or refer to the problem in the real sense to say, "Well, they 11 have now got these people," because you are then treating 12 this sample -- and I think it is fair to call it that -- as 13 the universe. 14 And that is backward. It is not -- it is -- it 15 serves as a predicate as the potential springboard for 16 finding out if this is a larger problem or not. So I can't 17 -- I can't find the opposition as really persuasive. You 18 know, I can only deal with what I have, and what I have in 19 terms of the arguments I think is essentially nonresponsive 20 to the -- to the declaration of the investigator as to what 21 it is that they are looking for and how they are looking for 22 it, or want to look for it. 23 So I am -- I think that they have applied for an 24 order to show cause why the subpoena should not be enforced, 25 and you have made an effort to show cause but I don't think Case: 1:15-cv-00275 Document #: 16 Filed: 03/10/15 Page 13 of 13 PageID #:255 12 1 persuasively because of the way in which you continue to 2 approach the problem, which is backward. 3 4 So that is -- so that is where we are. And I don't know what to add, frankly. 5 Now what kind of order do you want? 6 MR. DeCAMP: Just date certain by which they should 7 8 9 10 be producing. THE COURT: Why don't you provide a draft of the order. Give one to opposing counsel, and then submit it to me and I will sign it. 11 MR. DeCAMP: Okay. 12 THE COURT: Okay? 13 MR. DeCAMP: All right. Thank you, your Honor. 14 MR. HURKA: Thank you, your Honor. 15 (Which were all the proceedings heard.) 16 CERTIFICATE 17 I certify that the foregoing is a correct transcript 18 from the record of proceedings in the above-entitled matter. 19 20 21 22 23 24 25 s/Rosemary Scarpelli/ Date: February 24, 2015