Equal Emp't Opportunity Comm'n v. Nucor Steel Gallatin, Inc.

184 F.Supp.3d 561

32 A.D. Cases 1442

Equal Employment Opportunity Commission, Plaintiff

v.Nucor Steel Gallatin, Inc., Defendant

Criminal No. 15-53-GFVT

United States District Court, E.D. Kentucky, Central Division. Frankfort.

Signed April 28, 2016

Kenneth W. Brown, EEOC-Louisville Area Office, Louisville, KY, for Plaintiff.

John K. Linker, Lisa Michelle Guerra, Alaniz Schraeder Linker Farris Mayes, LLP, Houston, TX, for Defendant.

OPINION & ORDER

Gregory F. Van Tatenhove, United States District Judge

The Equal Employment Opportunity Commission seeks a declaration that it may enter the private commercial property of Defendant Nucor Steel Gallatin, Inc., without Gallatin's consent and without an administrative warrant, to investigate a hiring discrimination claim. The parties apparently agree that, to date, no federal court has fully explored the authority of the Commission to conduct a warrantless, nonconsensual search of private commercial property. The Court now finds that, although the Commission must obtain pre-compliance judicial review before performing nonconsensual inspections of private commercial property, this approval need not always come in the form of an administrative warrant. Instead, the court's review process must provide a nonconsenting owner with safeguards roughly equivalent to those afforded under a traditional warrant procedure. Here, the Court's thorough review of the Commission's request lends all the protections a formal warrant procedure would otherwise provide. The Court will therefore enforce the Commission's subpoena, subject to the conditions carefully laid out below.

I

On October 1, 2014, Edward Bennett filed a charge of employment discrimination with the Equal Employment Opportunity Commission ("EEOC"). He alleged that Defendant Nucor Steel Gallatin, Inc. ("Gallatin") unlawfully rescinded a job offer after discovering his record of disability. [R. 1-1 at 1.] Bennett also suggested that, in his initial interview, a representative of Gallatin told him the job—titled Hot Rolling Department Shift Manager—would require only "hands off" work. [R. 8 at 4.] Gallatin answered Bennett's charge by stating that it rescinded his offer only "after the occupational doctor who conducted his post-offer, pre-employment medical examination determined that he could not safely perform the essential functions of the highly safety-sensitive [position], with or without reasonable accommodation." [R. 8-4 at 2.]

The EEOC then issued a Request for Information. After encountering some resistance from Gallatin, the Commission finally procured a list of the persons involved in Bennett's recruiting and interview process. [R. 1-1 at 2.] In an email sent to Gallatin on March 5, 2015, the EEOC's investigator informed the company that "the next step in my investigation is to conduct an on-site visit and conduct interviews with individuals that I think will have relevant information to aid in my investigation." [Id. ] In its response on April 16, 2015, however, Gallatin stated, "we simply do not feel that coming onsite is necessary [ ]or relevant to your investigation." [Id. ] Instead, the company offered "to provide the individuals requested for interviews at the EEOC office or an ‘offsite’ location." [Id. ] Shortly thereafter, the EEOC issued a subpoena requiring Gallatin to permit on-site access "to conduct witness interviews, examine the facility, and obtain/request any additional information as it pertains to the Rolling Shift Manager position." [R. 8-1 at 1.]

On May 5, 2015, Gallatin filed a Petition to Revoke and/or Modify the Subpoena with the EEOC, claiming that "onsite interviews are not relevant nor material and place [an] unnecessary burden on the employer and require a judicial warrant." [R. 8-11 at 5.] The Commission denied Gallatin's petition in June 2015, directing Gallatin "to permit an on-site examination of its facility ... within ten (10) days of the receipt of this Determination." [R. 1-1 at 3.] In a letter sent to the EEOC a few days later, Gallatin informed the Commission that it would not consent to an on-site visit "without a court order and/or valid warrant." [Id .] The Commission then petitioned this Court to order Gallatin to "show cause why it should not be compelled to comply with the subpoena issued upon it." [R. 7 at 2.]

The Court ordered the parties to convene for an oral argument held on January 6, 2016. [R. 10.] At the hearing's conclusion, the Court directed the parties to file any additional briefing necessary to address the "case law relevant to the question of whether a warrant is required in this particular case." [Id. at 1.] The parties filed their responses later that month, and the dispute is now ripe for review. [R. 11, 12.]

II

A

Before reaching the warrant issue, the Court must briefly address a threshold question raised by Gallatin in its final brief. Although Gallatin only objected to the Commission's warrantless entry in its initial briefing and at oral argument, the company now tangentially claims that the EEOC simply does not have the statutory authority to conduct any on-site examination of commercial property, regardless of whether an owner consents to that entry.¹ The company cites Title VII of the Civil Rights Act of 1964, which states that the EEOC shall "have access to, for the purposes of examination, and the right to copy any evidence of any person being investigated or proceeded against." 42 U.S.C. § 2000e–8(a).² Gallatin believes that this language does not "expressly afford a right of entry to the EEOC." [R. 11 at 3.] And because Congress has not modified this language since its enactment, Gallatin likewise argues that the legislature "never intended for the EEOC to have such a statutory right." [Id. ]

There are two problems with this claim. First, Gallatin fails to account for the EEOC's long and untroubled history of conducting myriad on-site investigations of private commercial property throughout the United States. As the Commission notes, "[e]very working day, EEOC investigators across the nation perform on-site investigations at a multitude of differing worksites." [R. 1-1 at 10.] If "Congress never intended for the EEOC to have such a statutory right," it is curious that the legislature has remained silent in the face of the Commission's habitual and pervasive exercise of that right for many decades.

Of course, congressional silence cannot trump the plain language of the statute.³ But here, the statutory language expressly provides that the Commission shall "have access to ... any evidence of any person being investigated or proceeded against." 42 U.S.C. § 2000e–8(a) (emphasis added). That is not an ambiguous grant.⁴ If the EEOC carries the statutory authority to require access to "any evidence" relevant to the claims charged—subject always to the pre-compliance review procedures summarized below—it plainly follows that the Commission may enter private commercial property to inspect relevant physical evidence. Given (1) the clarity of the statutory grant and (2) the deference otherwise afforded to an agency's interpretation of its own enabling statute, the Court finds that 42 U.S.C. § 2000e–8(a) supplies the Commission with the authority to perform on-site investigations. See Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).

B

Gallatin also argues that, regardless of whether the EEOC enjoys the statutory right to enter private commercial property, that entry cannot take place without an administrative warrant. The Court's review of this claim begins with the most influential case to examine the authority of administrative agencies to conduct warrantless searches of private commercial property, Marshall v. Barlow's, Inc. , 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978). In Barlow's , the Supreme Court invalidated a provision of the Occupational Safety and Health Act of 1980 ("OSHA") that authorized the Secretary of Labor to conduct warrantless, nonconsensual searches of private commercial property. Id. at 325, 98 S.Ct. 1816. The Court noted that "the Fourth Amendment prohibition against unreasonable searches protects against warrantless intrusions during civil as well as criminal investigations," including intrusions upon "private commercial property." Id. at 312, 98 S.Ct. 1816. Accordingly, "unless some recognized exception ... applies," administrative agencies cannot conduct nonconsensual inspections of private commercial property without a warrant. Id. at 313, 98 S.Ct. 1816.

The Court qualified, however, that this holding did not necessarily "mean that, as a practical matter, warrantless-search provisions in other regulatory statutes are also constitutionally infirm." Id. at 321, 98 S.Ct. 1816. Instead, the Court found that "[t]he reasonableness of a warrantless search ... will depend upon the specific enforcement needs and privacy guarantees of each statute." Id. In its survey of statutory schemes that may provide for reasonable warrantless searches, Barlow's pointed to those statutes that "already envision resort to federal-court enforcement when entry is refused, employing specific language in some cases and general language in others." Id. The Court then cited as "exemplary" the language contained in the Animal Welfare Act of 1970, which vests in federal district courts the jurisdiction "specifically to enforce, and to prevent and restrain violations of this chapter, and ... in all other kinds of cases arising under this chapter." 7 U.S.C. § 2146(c) (1976 ed.). The Court likewise cited the Internal Revenue Code, which provides that "district courts ... shall have such jurisdiction to make and issue in civil actions, writs and orders of injunction ... and such other orders and processes, and to render such ... decrees as may be necessary or appropriate for the enforcement of the internal revenue laws." 26 U.S.C. § 7402(a). Lastly, the Court cited federal statutes governing...