United States Equal Emp't Opportunity Comm'n v. Sinclair

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United States Equal Employment Opportunity Commission, Petitioner, v. Michael Sinclair, and Epilution Med Spa, LLC, Respondents.

No. 23-23547-Civ-Scola/Sanchez

United States District Court, S.D. Florida

August 9, 2024

Robert N. Scola, Counsel of Record

REPORT AND RECOMMENDATION ON PETITIONER'S APPLICATION FOR AN ORDER TO SHOW CAUSE WHY ADMINISTRATIVE SUBPOENAS SHOULD NOT BE ENFORCED

EDUARDO I. SANCHEZ UNITED STATES MAGISTRATE JUDGE

This matter is before the Court on the Application for an Order to Show Cause Why Administrative Subpoenas Should Not Be Enforced, filed by the Petitioner, the Equal Employment Opportunity Commission (“EEOC”). ECF No. 1. The Honorable Robert N. Scola, United States District Judge referred the Petitioner's Application to the undersigned for a Report and Recommendation. ECF No. 12. After careful consideration of the parties' filings, the record, and the applicable law, the undersigned RESPECTFULLY RECOMMENDS that Petitioner's Application for an Order to Show Cause be GRANTED.

I. BACKGROUND

On December 8, 2021, Rana Sebai, a former employee of Michael Sinclair, M.D.P.A. and Epilution Med Spa, LLC (“Epilution”) (collectively, “Respondents”), filed a charge with the EEOC alleging that the Respondents both discriminated against her on the basis of sex (sexual harassment and hostile work environment) and retaliated against her, all in violation of Title VII. ECF No. 1 at 3. On the same day, the EEOC notified Respondents of the charge and began their investigation of whether Title VII had been violated. Id.

As part of their investigation, in March of 2023, the EEOC issued requests for information to Respondents seeking documents related to (1) Respondents' sexual harassment, hostile work environment, and retaliation policies and reporting procedures; (2) the allegations in Ms. Sebai's charge of discrimination; (3) Ms. Sebai's complaints of sexual harassment, hostile work environment, and retaliation; (4) Ms. Sebai's personnel file; (5) other complaints of sexual harassment, hostile work environment, and retaliation involving Dr. Sinclair; (6) inquiries and complaints from the Department of Health; (7) a listing of the persons employed by Respondents, their dates of employment, and last known contact information; and (8) Respondents' organizational chart. Id. at 4-5. The requests, other than those concerning Ms. Sebai and the Respondents' organizational structure, were limited to the time period since August 1, 2019. Id. When Respondents did not provide the requested information and materials by the return date, the EEOC sent Respondents a letter extending the return date for the requested information and advising that the EEOC could subpoena Respondents for the same information should they choose not to respond to the request. Id. at 5.

Receiving no response, in June 2023, the EEOC issued to Respondents subpoenas requesting substantially the same information as their earlier requests. Id. at 6. The subpoenas were served on Respondents on Thursday, July 6, 2023, and were to be returned by July 14, 2023. Id. at 6-7. On Monday, July 10, 2023, counsel for Respondents responded to the Federal Investigator listed on the subpoena, informing the investigator that Respondents did not have 15 employees and the Respondents were no longer doing business. ECF No. 6 at 3. Respondents' counsel requested to speak with the investigator to “limit/revise the subpoena to illustrate the two aforementioned points” and requested an extension to respond to the subpoenas. Id. at 4. Respondents followed up with the federal investigator several times, but no extension was ever granted, and the investigator did not discuss revising and limiting the subpoena requests prior to the listed return date. Id. On July 14, 2023, counsel for Respondents spoke with the investigator to inform him that Respondents did not have 15 employees and were no longer doing business, and he offered to provide an affidavit and evidence in support, which the investigator suggested would be useful. Id. The investigator did not, however, modify or limit the subpoena. ECF No. 9 at 5.

On July 14, 2023, Respondents provided the EEOC, by emailing the investigator, with the Respondents' Response and Objections, Forms RT6 as to Dr. Sinclair for 2020 and 2021 (which do not list employee contact information or dates of employment), and an unsigned Microsoft Word version of an Employee Handbook. ECF No. 1 at 7-8; ECF No. 6 at 4-5; ECF No. 6-6. More specifically, the Response and Objections to Subpoena contains (1) the Respondents' objections that Request Nos. 5 and 6 are overly broad, vague, and not reasonably calculated to lead to discovery; (2) their argument that 15 or more employees are required for Title VII to govern; (3) their contention that the allegations in the charge of discrimination are false; (4) the Word version of an employee handbook drafted by Ms. Sebai; and (5) Respondents' assertion that they did not locate Ms. Sebai's personnel file. ECF No. 1-13 at 1; ECF No. 6-6. Finding Respondents' Response and Objections deficient, the EEOC filed an Application for An Order to Show Cause Why Administrative Subpoenas Should Not Be Enforced and Incorporated Memorandum of Law, ECF No. 1, commencing this proceeding.

II. LEGAL STANDARD

“Title VII makes it unlawful for an employer to discriminate against an employee ‘with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin,'” as well as “to retaliate against an employee” for complaining about such unlawful discrimination. Ortiz v. Waste Mgmt., Inc., 808 Fed.Appx. 1010, 1013 (11th Cir. 2020) (quoting 42 U.S.C. § 2000e-2(a)(1) and citing § 2000e-3(a)).

“Title VII ‘entrusts the enforcement of that prohibition to the EEOC.” EEOC v. Joon, LLC, No. 3:18-MC-3836-WKW, 2019 WL 2134596 (M.D. Ala. May 15, 2019) (quoting McLane Co. v. EEOC, 581 U.S. 72, 75 (2017)). “The EEOC's responsibilities are ‘triggered by the filing of a specific sworn charge of discrimination.'” McLane, 581 U.S. at 75 (quoting University of Pa. v. EEOC, 493 U.S. 182, 190 (1990)). “When it receives a charge, the EEOC must first notify the employer and must then investigate ‘to determine whether there is reasonable cause to believe that the charge is true.'” McLane, 581 U.S. at 75 (quoting University of Pa., 493 U.S. at 190); see also 42 U.S.C. § 2000e-5(b) (providing that, “[w]henever a charge is filed,” the EEOC “shall make an investigation thereof”).

The EEOC has broad authority to investigate charges of discrimination under Title VII. EEOC v. Tempel Steel Co., 814 F.2d 482, 485 (7th Cir. 1987); Joon, 2019 WL 2134596, at *2; see also U.S. v. Fla. Azalea Specialists, 19 F.3d 620, 622 (11th Cir. 1994) (citing United States v. Morton Salt Co., 338 U.S. 632, 642-43 (1950), and discussing the Supreme Court's recognition of the broad investigatory power of administrative agencies). The EEOC “shall” have access to “any evidence” of any person under investigation “that relates to unlawful employment practices . . . and is relevant to the charge under investigation.” 42 U.S.C. § 2000e-8(a). To aid its investigation, the EEOC has “the authority to issue administrative subpoenas and to request judicial enforcement of those subpoenas” against non-complying employers. EEOC v. Shell Oil Co., 466 U.S. 54, 63 (1984) (citing 42 U.S.C. § 2000e-9); see also 29 U.S.C. § 161.

“‘It is well-settled 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) (citing, inter alia, Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186, 209 (1946)). As a general rule, an administrative subpoena should be enforced if-and a court may thus inquire into whether-(1) the administrative investigation is within the authority of the agency; (2) the demand is not too indefinite; and (3) the information sought is reasonably relevant. Fla. Azalea Specialists, 19 F.3d at 623; EEOC v. Tire Kingdom, 80 F.3d 449, 450 (11th Cir. 1996).

III. THE EEOC'S JURISDICTION

Before deciding whether to recommend enforcement of the administrative subpoenas, the Court addresses Respondents' challenge to the EEOC's jurisdiction to investigate the underlying charge of discrimination. Respondents claim that, through their subpoenas, “the EEOC is engaging in conduct that exceeds its statutory authority by pursuing an investigation of entities not covered by Title VII.” ECF No. 6 at 2. Specifically, because “Respondents, at the time of the Charge of Discrimination, did not employ fifteen employees,” Respondents argue that they were not an “employer” under Title VII,^[1] and therefore, Title VII does not apply to them. Id. However, deciding whether the EEOC will ultimately have jurisdiction over the charge of discrimination to which the subpoenas relate is premature at this stage. The Eleventh Circuit has explained:

[A] subpoena enforcement proceeding is not the proper forum in which to litigate the question of coverage under a particular statute. The initial determination of the coverage question is left to the administrative agency seeking enforcement of the subpoena.

Thus, at this stage of the litigation, the agency need not make a conclusive showing of jurisdiction to justify enforcement of the subpoena. So long as the agency makes a plausible argument in support of its assertion of jurisdiction, a district court must enforce the subpoena if the information sought there is not plainly incompetent or irrelevant to any lawful purpose of the agency.

Kloster, 939...