# Equal Employment Opportunity Commission v. Elrod

> Court of Appeals for the Seventh Circuit · March 16, 1982 · 674 F.2d 601

URL: https://www.frixlaw.com/law-library/cases/8914933

## Case

- **Full name:** EQUAL EMPLOYMENT OPPORTUNITY COMMISSION v. Richard ELROD and Philip Hardiman
- **Court:** Court of Appeals for the Seventh Circuit
- **Decided:** March 16, 1982
- **Citations:** 674 F.2d 601; 28 Fair Empl. Prac. Cas. (BNA) 607; 3 Employee Benefits Cas. (BNA) 1329; 28 Empl. Prac. Dec. (CCH) 32,545; 1982 U.S. App. LEXIS 20978
- **Precedential status:** Published
- **Opinion:** Concurring in part by Pell
- **Judges:** Pell, Sprecher
- **Cited by:** 9 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8914933

## Opinion text

PELL, Circuit Judge,
concurring and dissenting.
I concur and join in the majority opinion with respect to Parts I, II and III. I am in disagreement with the result reached in Part IV of the majority opinion and therefore respectfully dissent. As to that part only I regard the subpoena issued in this case by the EEOC as seeking wide-ranging bureaucratic intrusion into all personnel files of the Cook County Department of Corrections. Indeed, its breadth would seem to indicate that all files were included, not just personnel. The correctness of that observation seems to me to be patent from even a cursory examination of the two and one-half page specification of documents set forth in the subpoena, a copy of which is attached as an appendix to this dissent. The subpoena duces tecum is equally wide-ranging. A copy of that document is also attached as an appendix to this dissent.
Failure of the officials of the Department to comply with judicially validated subpoenas, of course, subjects them to the risks of contempt proceedings. Unless the Department has a massive computerized program geared to all of the subtleties of the information requested, I cannot conceive that gathering all of the information required by the documents subpoena and needed for the witness or witnesses on the subpoena duces tecum could be accomplished without combing countless records and making numerous judgment calls on whether any particular piece or pieces are within the ambit of the subpoenas. I regard this as an unwarranted intrusion into the affairs of a state instrumentality by the Federal Government, no matter how worthwhile its social objective may be in a particular case.
The Department concedes that it has a compulsory retirement policy with regard to correctional officials at the age of 63. This, by the way, is eight years more than the Federal Government’s bona fide occupational qualification application to federal jail guards with identical safety and security qualifications. See 5 U.S.C. § 8335 . Yet, the problems of safety and security would seem to be common to the two groups of guards. In sum, the subpoenas appear to me to be a plain and simple fishing expedition seeking to go far beyond the bounds of what conceivably could be relevant in determining whether the compulsory retirement age of 63 as to these state law enforcement officials is a bona fide occupational qualification.
While it is true that the majority opinion in the final marginal note recognizes that the court on remand may consider whether specifications are relevant to the EEOC’s particular investigatory purpose, it appears to me that this is a case calling for a determination now of whether the agency is abusing its discretion by not initially exploring the bona fide occupational qualifications issue before seeking information which would be wholly irrelevant if a bona fide occupational qualification is legally and correctly applied here. It seems to me the district court should first decide this threshold issue.
While I think enforcement should be denied now because of the overbreadth and lack of showing of relevance, I would at the very least vacate the order and remand for an evidentiary hearing before the district court for a demonstration by the federal agency as to the relevancy of the materials sought on the bona fide occupational qualification issue.
*615 APPENDIX I
United States of America Equal Employment Opportunity Commission
Subpoena No. CH 79-32
TO: Cook County Department of Corrections 2700 South California Avenue Chicago, Illinois 60608
In The Matter Of EEOC v. Cook County Department Of Corrections, No. 051798102-Investigation concerning mandatory retirement of Correctional Officers
Having failed to comply with previous requests made by or on behalf of the undersigned Commission Official,
You Are Hereby Required And Directed To Produce And Bring For Inspection And Copying The Documents Described Below on Friday, September 14, 1979 at 2:00 PM at 55 East Jackson Blvd., Room 1401 Chicago, Illinois
Definitions:
“Document” is defined as including writings, drawings, graphs, charts, photographs, phono-records, notes, memoranda, letters, diaries, recording tapes, or computerized records in usable form.
(See continuation sheets)
On Behalf Of The Commission:
Issuing Official:
Martin Slate, Director
Chicago District Office
536 South Clark Street
Chicago, Illinois 60605
Date: Sep 11 1979
1. All documents relating to, referring to, reflecting, or in any way discussing the previous retirement policy of the Cook County Department of Corrections before the passage of Cook County Ordinance 75-0-16 on May 5, 1975.
2. All documents which refer to, relate to, or reflect any suggestions, recommendations and/or decisions to enforce the age 63 retirement rule.
3. All documents supporting the reason^) of the Department of Corrections for enforcing a mandatory retirement age of 63, including but not limited to statistical, medical or scientific studies and job task analyses.
4. All documents notifying any current employee of the Department of Corrections who will have attained the age of 63 on or before October 1, 1979 of his/her retirement date and all documents which describe, relate to or refer to or reflect the reasons for such retirement.
5. With regard to the Department’s policy of retirement at age 63, all documents which relate to, refer to, reflect or describe:
a. what the practice has been with regard to employee retirement;
b. all reasons for the decision to enforce the policy;
c. the name, job classification, and business address for each person involved in any decision to enforce the policy and the nature of each person’s involvement in any decision; and
6. For each employee of the Department of Corrections who will have attained the age of 63 on or before October 1, 1979, all documents which relate to, refer to, reflect or describe:
a. Name
b. Address and telephone number;
c. Date of birth;
d. Date of Hire;
e. Current job classification, pay rate, rank and/or grade;
f. Current specific work assignments and exact duties and percentage of time spent on each;
g. All previous classifications held with the Department of Corrections and include dates thereof;
h. For each person who supervised the work of the employee, the supervisor’s name, job classification, and include dates of supervision of the employee; and
i. If the employee has been notified of a retirement date and, a copy of the notification and the reasons therefor.
7. For each employee named in response to question 6, supra., all documents *616 which contain appraisals or evaluations of work performance and any other documents which relate to the employee’s performance or conduct, whether favorable or adverse (such as disciplinary warnings, letter of commendation, etc.).
8. For each individual named in response to question 6, supra., all documents which relate to, refer to or reflect or describe:
a. All pay rates and the inclusive dates for each pay rate;
b. All changes in rank and/or grade, and the dates of said changes;
c. For each change in pay, rank or grade, the reason(s) for such change, and the weight given to each;
d. The name, job classification, business address of each individual involved in the decision to change the pay rate, rank or grade, for each change referred to in subparts a and b above; and
e. If the employee ever failed to receive a regularly scheduled pay increase or received an increase less than the average increase given to similarly situated individuals produced all documents which relate to, refer to, reflect, or describe the date of the increase, the reason(s) why the individual did not receive the increase, and the names, job classification, and business address of each person involved in the decision.
9. All documents which relate to, refer to, reflect, or describe any instances since December 15, 1967 in which employee has been assigned to any job which is less strenuous and/or less dangerous because of the employee’s age or physical condition, including for each instance, for each employee:
a. Name, home address and telephone number;
b. Inclusive dates of said assignment;
c. Date of birth;
d. Previous duties and inclusive dates thereof;
e. Duties to which assigned because of age or physical condition;
f. Reasons for the assignment;
g. Whether the assignment was at the individual’s request; and
h. Name, job title, business addresses of persons involved in the decision to reassign.
10. For each person employed by the Department of Corrections who retired at age 60 or older after December 15, 1967, produce all documents which relate to, refer to, reflect, or describe:
a. Name;
b. Date of retirement;
c. Date of birth;
d. Job classification at retirement, together with specific work assignments and exact duties and percentage of time spent on each;
e. Whether retirement was voluntary or involuntary; and
f. If involuntary, reason(s) for the retirement of said individual.
11. Copies of all pension plans and disability benefit plans covering employees of the Department of Corrections in effect since December 15, 1967.
Section 7(a) of the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 626 (a), provides that the provisions of 15 U.S.C. §§ 49 and 50, as adopted by 29 U.S.C. §§ 209 and 211, are applicable to investigations under the Act. Copies of the applicable statutes are attached hereto.
Note The Provision For Civil And/Or Criminal Penalties For Failure To Obey A Subpoena of The Commission.
APPENDIX II
United States of America Equal Employment Opportunity Commission
Subpoena No. CH 79-33
TO: Cook County Department of Corrections 2700 South California Avenue Chicago, Illinois 60608
In The Matter Of EEOC v. Cook County Department Of Corrections, No. 051798102-Investigation concerning mandatory retirement of Correctional Officers
Having failed to comply with previous requests made by or on behalf of the undersigned Commission Official,
*617 You Are Hereby Required And Directed To:
Designate one or more persons to testify on your behalf concerning the matters listed below:
You are required to notify Kathryn J. Kaluzny and Sidney Chesnin, attorneys for the Commission, 55 East Jackson Blvd., Room 1401, Chicago, Illinois 60604, telephones 353-6674 or 353-7545, no later than 2:00 PM on Friday, September 14, 1979, of the identity of the persons who will testify and, for each person designated, the matters on which the person will testify. The persons so designated shall testify as to matters known or reasonably available to the Cook County Department of Corrections.
You Are Further Required to produce all persons so designated to testify for oral testimony under oaths before an officer authorized to administer such oath on Monday, September 17, 1979, at 9:00 A.M. at 2700 So. California Avenue, Chicago, Illinois in a suitable room to be designated by the Cook County Department of Corrections.
You are required to notify the above attorneys for the Commission of the exact room location no later than 2:00 PM on Friday, September 14, 1979.
(See continuation sheet.)
Issuing Official:
Martin Slate, Director
Chicago District Office
536 South Clark Street
Chicago, Illinois 60605
The matters concerning which testimony is required are as follows:
1. With regard to the Department of Correction policy requiring mandatory retirement at age 63, the previous policy in effect before the passage of Cook County Ordinance 75-0-16 on May 15, 1975.
2. With regard to the Department’s policy of retirement at age 63:
a. The name, job classification, and business address for each person involved in the decision to retire employees at age 63 and describe the nature of each person’s involvement in the decision;
b. Whether the policy has been enforced consistently;
c. What the practice has been with regard to employee retirement;
d. All reasons for the decision to enforce the policy and the description of any documentation or studies supporting the reasons;
e. The name, job classification, and business address for each person involved in any decision to enforce the policy and a description of the nature of each person’s involvement in any decision.
3. For each employee of the Department of Corrections who will have attained the age of 63 on or before October 1, 1979, the employee’s:
a. Name
b. Address and telephone number;
c. Date of birth;
d. Date of hire;
e. Current job classification, pay rate, rank and/or grade;
f. Current specific work assignments and exact duties and percentage of time spent on each;
g. All previous classifications held with the Department of Corrections and include dates thereof;
h. For each person who supervised the work of the employee, the supervisor’s name, job classification, and include dates of supervision of the employee; and
i. Whether the employee has been notified of a retirement date and, if so, the date and manner of such notification and the reasons therefor.
4. For each individual named in response to question 3, supra:
a. All pay rates and the inclusive dates for each pay rate;
b. All changes in rank and/or grade, and the dates of said changes;
*618 c. For each change in pay, rank or grade, the reason(s) for such change, and the weight given to each;
d. The name, job classification, business address of each individual involved in the decision to change the pay rate, rank or grade, for each change referred to in subparts a and b above; and
e. If the employee ever failed to receive a regularly scheduled pay increase or received an increase less than the average increase given to similarly situated individuals, the date of the increase, the reason(s) why the individual did not receive the increase, and the names, job classification, and business address of each person involved in the decision.
5. If, since December 15, 1967, any employee has been assigned to any job which is less strenuous and/or less dangerous because of the employee’s age or physical condition, and, if so, for each employee:
a. Name, home address and telephone number;
b. Inclusive dates of said assignment;
c. Date of birth;
d. Previous duties and inclusive dates thereof;
e. Duties to which assigned because of age or physical condition;
f. Reasons for the assignment;
g. Whether the assignment was at the individual’s request; and
h. Name, job title, business addresses of persons involved in the decision to reassign.
6. For each person employed by the Department of Corrections who retired at age 60 or older after December 15, 1967, the employee’s:
a. Name;
b. Date of retirement;
c. Date of birth;
d. Job classification at retirement, together with specific work assignments and exact duties and percentage of time spent on each;
e. Whether retirement was voluntary or involuntary; and
f. If involuntary, reason(s) for the retirement of said individual.
7. Whether any employees of the Department of Corrections are represented by any labor organization and, if so, the name of each organization, its address and telephone number.
Section 7(a) of the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 626 (a), provides that the provisions of 15 U.S.C. §§ 49 and 50, as adopted by 29 U.S.C. §§ 209 and 211, are applicable to investigations under the Act. Copies of the applicable statutes are attached hereto.
Note The Provision For Civil And/Or Criminal Penalties For Failure To Obey A Subpoena Of The Commission.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8914933. Public record. Not legal advice.