U.s. Equal Employment Opportunity Commission v. Maritime Autowash, Inc.

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1947
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Petitioner − Appellant,
v.
MARITIME AUTOWASH, INC.,
Respondent − Appellee.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. George L. Russell, III, District Judge.
(1:15-cv-00869-GLR)
Argued: March 24, 2016 Decided: April 25, 2016
Before WILKINSON and NIEMEYER, Circuit Judges, and David C.
NORTON, United States District Judge for the District of South
Carolina, sitting by designation.
Reversed and remanded by published opinion. Judge Wilkinson
wrote the opinion, in which Judge Norton joined. Judge Niemeyer
wrote an opinion concurring in the judgment.
ARGUED: Paula Rene' Bruner, U.S. EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION, Washington, D.C., for Appellant. John S. Vander
Woude, ECCLESTON AND WOLF, PC, Hanover, Maryland, for Appellee.
ON BRIEF: P. David Lopez, General Counsel, Jennifer S.
Goldstein, Associate General Counsel, Lorraine C. Davis,
Assistant General Counsel, U. S. EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION, Washington, D.C., for Appellant.

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WILKINSON, Circuit Judge:
Appellee Maritime Autowash, Inc. employed Elmer Escalante,
an undocumented alien, at one of its two full-service carwashes.
Escalante filed a complaint against Maritime with the Equal
Employment Opportunity Commission, alleging discrimination under
Title VII of the Civil Rights Act of 1964. As part of its
investigation, the EEOC issued a subpoena seeking information
from Maritime related to Escalante’s charges, which the employer
opposed. The district court denied the EEOC’s application for
subpoena enforcement.
This matter thus arrives on appeal at a very early stage.
The only issue before us is judicial enforcement of the EEOC’s
subpoena. We cannot yet know whether the agency’s investigation
will uncover misconduct by the employer or ever ripen into a
lawsuit. Nor can we assess what causes of action or remedies
might lie down the road. All that the district court was called
upon to decide was whether the EEOC had authority to investigate
Escalante’s charges. We think the trial court erred in declining
to authorize that very preliminary step.
I.
In May 2012, Maritime hired Elmer Escalante as a vacuumer
at its carwash in Edgewater, Maryland. At the time, Escalante
lacked authorization to work in the United States. Maritime and
Escalante offer contrasting narratives of his hiring and

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termination. According to the employer, Escalante was originally
hired under the name Angel Erazo. The Department of Homeland
Security (DHS) informed Maritime in May 2013 after inspecting
its workplaces that Erazo had no lawful work authorization.
Maritime contends it terminated “Angel Erazo” and hired the same
person under the name “Elmer Escalante” that same month.
For his part, Escalante claims that he was hired in May
2012 under his legal name, not Angel Erazo. The head manager
told him on his second day at work that the name Elmer Escalante
did not match his social security number. The manager allegedly
advised Escalante to obtain new documents bearing a different
name, which Escalante did. He went by Angel Erazo for the
following year. Escalante describes how, following an inspection
by DHS in May 2013, Maritime’s owner and its general manager met
with all the Hispanic employees. They offered those without
proper work authorization $150 each, styled as a one-time bonus,
to help them acquire new documentation with new names. Escalante
obtained a different social security number corresponding to
“Elmer Escalante.” Maritime then rehired him and the other
Hispanic employees with their new papers.
On July 27, 2013, Escalante and other Hispanic employees
complained to Maritime of unequal treatment and discrimination
targeting Hispanics. All of them were terminated the day they
raised the complaint. Escalante then filed charges with the EEOC

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on February 6, 2014 for discrimination on the basis of national
origin and retaliation as prohibited under Title VII. The time
period identified in his complaint was May 2012 to July 2013.
The complaint details the unequal employment conditions facing
Hispanic employees at Maritime, including longer working hours,
shorter breaks, lack of proper equipment, additional duties, and
lower wages. Ten other terminated Hispanic employees lodged
similar complaints with the EEOC. The Commission served Maritime
with a notice of the charges on February 25, 2014.
In responding to the charges, Maritime denied all
allegations of discrimination and stated that Escalante had been
terminated for failing to appear for a scheduled work shift. By
Maritime’s account, “Elmer Escalante” had been employed for only
two months, from May 2013 to July 2013. Maritime relegated to a
single footnote the fact that Escalante had worked there
previously under the name of Angel Erazo. Maritime claimed that
it had terminated “Angel Erazo” in May 2013 pursuant to a DHS
inspection that revealed Erazo’s lack of work authorization.
None of Maritime’s submissions to the EEOC touched upon whether
it had assisted Escalante in switching names and obtaining new
documentation, as he alleges it did.
The EEOC served Maritime with a Request for Information
(RFI) on May 27, 2014 seeking personnel files, wage records, and
other employment data related to Escalante, the other charging

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parties, and similarly situated employees dating from January 1,
2012 to the time of the request. Maritime refused to provide
records for any Hispanic employee other than Escalante. It again
insisted that Escalante, as opposed to Angel Erazo, was hired in
May 2013 and accordingly limited its response to May to July
2013. Appellee further objected that certain of the agency’s
requests were unduly burdensome, overly broad, and/or
irrelevant.
Faced with Maritime’s incomplete response to its RFI, the
EEOC issued a subpoena on June 10, 2014 focused only on
Escalante’s charges. Maritime produced none of the subpoenaed
documents. The EEOC then filed an initial application seeking
enforcement of its subpoena, which the district court dismissed
without prejudice to allow the agency to correct certain factual
errors in its application. A second application for subpoena
enforcement followed on March 26, 2015.
The district court denied that application in a letter
order dated June 23, 2015. J.A. 315-16. The court relied
primarily on this circuit’s decision in Egbuna v. Time-Life
Libraries, Inc., which held that a “plaintiff is entitled to
[Title VII] remedies only upon a successful showing that the
applicant was qualified for employment” and that being qualified
meant being “authorized for employment in the United States at
the time in question.” J.A. 316 (quoting 153 F.3d 184, 187 (4th

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Cir. 1998) (en banc) (per curiam)). From Egbuna’s reasoning, the
district court concluded that Escalante’s lack of work
authorization precluded any “standing or right to seek the
remedies under Title VII” and thus left no viable basis for his
EEOC complaint. Id. “As the EEOC’s Application [for subpoena
enforcement] is premised solely on Escalante’s complaint, [the
application] must be dismissed.” Id. The EEOC has timely
appealed.
II.
A.
We begin by emphasizing what we need not address in this
case. We are not addressing any defenses Maritime might raise
against the EEOC’s subpoena, such as the undue burdensomeness of
certain requests. We are not addressing the viability of any
cause of action that Escalante might eventually assert against
Maritime. We are not addressing the remedies that he might one
day claim. All that is further down the line. The only question
we must consider now is whether the EEOC’s subpoena, designed to
investigate Escalante’s Title VII charges, is enforceable. We
hold that it is.
The EEOC is empowered to enforce Title VII’s provisions
against employment discrimination. 42 U.S.C. § 2000e-5(a).
Central to that enforcement authority is the power to
investigate charges brought by employees, including the right to

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access “any evidence . . . that relates to unlawful employment
practices covered by [the statute],” id. § 2000e-8(a), as well
as “the authority to issue administrative subpoenas and to
request judicial enforcement of those subpoenas.” EEOC v. Shell
Oil Co., 466 U.S. 54, 63 (1984) (citing 42 U.S.C. § 2000e-9).
The district court plays a “limited” role in the
enforcement of administrative subpoenas. EEOC v. City of Norfolk
Police Dep’t., 45 F.3d 80, 82 (4th Cir. 1995). “The [judicial
review] process is not one for a determination of the underlying
claim on its merits; Congress has delegated that function to the
discretion of the administrative agency. Rather, courts should
look only to the jurisdiction of the agency to conduct such an
investigation.” EEOC v. Am. & Efird Mills, Inc., 964 F.2d 300,
303 (4th Cir. 1992) (per curiam).
That jurisdictional question is central to the instant
dispute. Both parties agree on the key factual issue that
Escalante held no valid work authorization when he was hired by
Maritime. They disagree on how Escalante’s undocumented status
affects the EEOC’s authority to investigate his charges.
Maritime argues that someone lacking proper work authorization
was never qualified for employment and therefore lacks any cause
of action or remedy under Title VII. According to appellee, “[a]
valid charge of discrimination ‘is a jurisdictional prerequisite
to judicial enforcement of a subpoena issue[d] by the EEOC.’”

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Appellee’s Br. 3-4 (quoting EEOC v. United Air Lines, Inc., 287
F.3d 643, 650 (7th Cir. 2002) (quoting Shell Oil Co., 466 U.S.
at 65)). Without a valid charge from the employee presenting a
viable cause of action, the court cannot enforce the EEOC’s
subpoena against the employer.
The Commission responds that it is not obligated to
demonstrate valid causes of action or remedies under Title VII
when seeking to subpoena information. All it must show is that
an “arguable” or “plausible” basis for its jurisdiction exists
and that its investigative authority is “not plainly lacking.”
Appellant’s Br. 10 (quoting EEOC v. Randstad, 685 F.3d 433, 442
(4th Cir. 2012)). The agency reads Title VII’s definition of
“employee” and related provisions to cover Escalante despite his
undocumented status, which at least authorizes the agency to
investigate his charge of national origin discrimination.
Whether causes of action or remedies ultimately arise from the
investigation, the Commission argues, has no bearing on its
subpoena power. In other words, courts may uphold the agency’s
subpoena authority without the need to pass on its view of Title
VII’s coverage of undocumented workers.
B.
The plain language of Title VII provides a “plausible” or
“arguable” basis for the EEOC’s subpoena in this case. Randstad,
685 F.3d at 442. The term “employee” in Title VII is defined

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broadly as any “individual employed by an employer.” 42 U.S.C. §
2000e(f). The anti-discrimination provisions use similarly
expansive terms, making it illegal to “fail or refuse to hire or
to discharge any individual, or otherwise to discriminate
against any individual” and listing “national origin” as a
protected characteristic. Id. § 2000e-2(a). Title VII allows any
“person claiming to be aggrieved” to file charges with the EEOC.
Id. § 2000e-5(b). Nothing explicitly bars undocumented workers
from filing complaints.
Whether under the name Elmer Escalante or Angel Erazo, the
charging party in this case was employed at Maritime’s carwash,
and his charge of discrimination rests squarely on one of the
protected grounds. The EEOC’s investigation of Escalante’s
charges was therefore at least plausibly and arguably related to
the authority that Congress conferred upon the Commission. Since
Maritime challenged only the agency’s subpoena authority, the
district court should have stopped at that point and enforced
the subpoena accordingly. This is not a case where the agency
went rogue or jumped the tracks and sought to investigate
something unrelated to its statutory charge.
Maritime counters that a reviewing court must ascertain a
valid charge of discrimination, which must incorporate a viable
cause of action or remedy, as a “jurisdictional prerequisite” to
enforcing the agency’s subpoena. In other words, what Maritime

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was asking the district court to do was address Title VII’s
coverage of undocumented workers before deciding the issue of
subpoena enforcement. The district court followed Maritime’s
lead, concluding that no Title VII causes of action or remedies
were open to those lacking proper work authorization, and so the
EEOC had no authority to investigate their charges.
This has it all backwards. A court need not first address
causes of action or remedies any time it reviews an agency
subpoena. Maritime’s argument is premised on cases, primarily
EEOC v. Shell Oil Co., dealing with various threshold
requirements for filing charges with the EEOC and for providing
notice to employers. 466 U.S. 54. Shell Oil, for example,
addresses how much information must be included in Title VII
charges and provided to the employer before the EEOC can secure
judicial enforcement of its subpoena.
Those requirements are not at issue here. At the heart of
those cases raised by Maritime is § 706 of Title VII, which
provides, for instance, that charges be in “writing under oath
or affirmation,” “contain such information and be in such form
as the Commission requires,” and comply with a statutory filing
period. 42 U.S.C. § 2000e-5(b) (governing the form and content
of charges); id. § 2000e-5(e)(1) (requiring charges to be filed
within 180 days of the alleged unlawful conduct). This circuit
has routinely considered when these threshold requirements,

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particularly timeliness, form a “jurisdictional prerequisite” to
the EEOC’s investigation such that non-compliance precludes
subpoena enforcement. See, e.g., City of Norfolk Police Dep’t.,
45 F.3d 80 (considering the EEOC’s authority to investigate an
untimely charge).
Here, Maritime does not contest Escalante’s compliance with
§ 706 or other threshold conditions. His charges are invalid,
Maritime argues, because an undocumented alien cannot present a
viable Title VII cause of action or remedy. That is much harder
to shoehorn into the concept of a “jurisdictional prerequisite”
for enforcing subpoenas. This court has not required the showing
of a viable cause of action or remedy at the subpoena
enforcement stage, and for good reason. Ensuring that charges
meet the guidelines on form, content, and timeliness is a far
cry from predicting and evaluating what relief on the merits the
charging party might ultimately claim.
Courts are warned not to venture prematurely into the
merits of employment actions that have not been brought: “[a]t
the subpoena-enforcement stage, . . .‘any effort by the court to
assess the likelihood that the Commission would be able to prove
the claims made in the charge would be reversible error.’ The
EEOC’s authority to investigate ‘is not negated simply because
the party under investigation may have a valid defense to a

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later suit.’” Randstad, 685 F.3d at 449 (quoting Shell Oil, 466
U.S. at 72 n. 26; United Air Lines, Inc., 287 F.3d at 651).
Maritime’s approach would cram substantive questions of
statutory coverage into the confines of subpoena enforcement.
Any employer wishing to dodge a subpoena could simply raise
every conceivable obstacle to a claimant’s prospects for
ultimate success. At the point where an investigation has barely
started and no lawsuit has been filed, the EEOC itself is hard-
pressed to determine the validity of the charges. Without
evidence, a record, and appropriate briefing, the court is even
less equipped to conduct full-blown merits review. To do so at
such an early juncture would “serve[] ‘not only to place the
cart before the horse, but to substitute a different driver [the
district court] for the one appointed by Congress [the EEOC].’”
Id. at 449-50 (quoting Graniteville Co. v. EEOC, 438 F.2d 32, 36
(4th Cir. 1971)). Regular order suggests allowing the EEOC
investigation to run its course and reserving judgment on the
merits for a later time.
C.
The particular issue that Maritime presses -– whether and
to what extent Title VII covers undocumented aliens -– is a
novel and complex problem especially ill-suited to a premature
and absolute pronouncement. In presenting the issue, Maritime
relies on this circuit’s decision in Egbuna v. Time-Life

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Libraries, Inc., 153 F.3d 184, and the Supreme Court’s decision
in Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002),
both of which involve undocumented workers. By appellee’s
reading, Egbuna and Hoffman not only allow us to decide this
complicated question now, but in fact dictate a clear answer:
the EEOC has no authority to investigate charges brought by
undocumented aliens.
If only our job were that easy. Neither Egbuna nor Hoffman
was presented in the premature posture that we find ourselves in
now. In Egbuna, this court reviewed a grant of summary judgment
against an employee bringing a Title VII action for unlawful
retaliation. Hoffman asked the Court to review an NLRB order
awarding an employee backpay following illegal termination.
Neither court had any opportunity to consider the relevant
agency’s subpoena authority or how it related to the relief
available to undocumented aliens. In short, those two decisions
do not control the outcome here.
What these cases do throw into relief are the hard
questions that arise when illegal immigrants invoke statutory
protections against employment discrimination. Hoffman is
illustrative. Even as the Supreme Court reversed the NLRB’s
award of backpay to an undocumented alien, it affirmed the
Board’s authority to impose other sanctions against the
employer, including cease and desist orders and notice

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requirements. See Hoffman, 535 U.S. at 152. The lack of monetary
relief for the employee did not foreclose non-monetary remedies
the agency could use to rectify unlawful employment conditions.
The whole field is more nuanced and less categorical than
Maritime suggests.
When laid bare, Maritime’s challenge to the EEOC’s subpoena
envisions a world where an employer could impose all manner of
harsh working conditions upon undocumented aliens, and no
questions could be asked, no charges filed, and no agency
investigation even so much as begun. The employer is asking the
court for carte blanche to both hire illegal immigrants and then
unlawfully discriminate against those it unlawfully hired.
Maritime would privilege employers who break the law above those
who follow the law. And it would block the EEOC from shining
even the dimmest light upon the employer’s actions.
So the agency must be allowed to do its job, but there are
limits to its powers too. None of this is intended to sanction
subpoena powers over any workplace grievance only speculatively
related to an agency’s statutory authority. We understand the
temptation for agencies to expand rather than contract their
spheres of influence. Subpoenas issued against individuals or
entities beyond an agency’s jurisdiction are ultra vires from
the start, and courts stand ready to curb that kind of
administrative overreach. If subpoenas are unduly burdensome,

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that too has long been subject to court challenge. But when, as
here, the agency is investigating charges plausibly within its
delegated powers, the courts should not obstruct. The district
court’s judgment is hereby reversed and remanded with
instructions that the EEOC’s subpoena be enforced.
REVERSED AND REMANDED.

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NIEMEYER, Circuit Judge, concurring in the judgment:
I share Judge Wilkinson’s sensible view that a “full-blown
merits review” is premature at the subpoena-enforcement stage.
Ante at 12. But we have previously explained that an agency
must “show that the exercise of its jurisdiction is supported by
reasonable cause [when] the person to whom the subpoena is
directed raises a substantial question that the court’s process
will be abused by enforcement.” EEOC v. S.C. Nat’l Bank, 562
F.2d 329, 332 (4th Cir. 1977) (emphasis added). Here, the
employer has raised such a question, contending that the EEOC’s
issuance of a subpoena based on a charge filed against it by a
foreign national unauthorized to work in the United States
exceeds the scope of the agency’s statutorily prescribed
investigative authority. Judge Wilkinson elides this question
by focusing on the formalities of the EEOC’s jurisdictional
requirement. I write separately to emphasize its substantive
component.
In order to obtain judicial enforcement of a subpoena, “the
EEOC must show,” among other things, “that . . . it is
authorized to make such investigation.” EEOC v. Wash. Suburban
Sanitary Comm’n, 631 F.3d 174, 180 (4th Cir. 2011) (internal
quotation marks and citation omitted). In the instant case, the
EEOC asserts that it derives its authority to investigate Elmer
Escalante’s complaint from Title VII, which provides that the

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Commission, “[i]n connection with any investigation of a
charge,” may only access evidence “that relates to unlawful
employment practices covered by this subchapter and is relevant
to the charge under investigation.” 42 U.S.C. § 2000e-8(a).
Indeed, the Supreme Court has cautioned that, under Title VII,
the EEOC’s power to issue subpoenas must be tethered to the
investigation of a “valid charge,” distinguishing the EEOC from
other agencies that enjoy more “plenary” investigative
authority. EEOC v. Shell Oil Co., 466 U.S. 54, 64-65 (1984)
(emphasis added). As the Court has explained,
In construing the EEOC’s authority to request judicial
enforcement of its subpoenas, we must strive to give
effect to Congress’ purpose in establishing a linkage
between the Commission’s investigatory power and
charges of discrimination. If the EEOC were able to
insist that an employer obey a subpoena despite the
failure of the complainant to file a valid charge,
Congress’ desire to prevent the Commission from
exercising unconstrained investigative authority would
be thwarted. Accordingly, we hold that the existence
of a charge that meets the requirements set forth in
§ 706(b), 42 U.S.C. § 2000e-5(b), is a jurisdictional
prerequisite to judicial enforcement of a subpoena
issued by the EEOC.
Id. at 65 (emphasis added).
While Judge Wilkinson views Shell Oil’s “jurisdictional
prerequisite” satisfied as long as certain formalities are
fulfilled, see ante at 10-11, § 706(b) also contains the
substantive requirement that a valid charge allege that the
employer “has engaged in an unlawful employment practice,” 42

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U.S.C. § 2000e-5(b). Judicial enforcement of a subpoena issued
by the EEOC must therefore insist that the sought-after evidence
relate to a charge that plausibly alleges “an unlawful
employment practice.” Id.
It is not immediately clear that this component of the
jurisdictional prerequisite is satisfied in this case –- where
all parties agree that Escalante is a foreign national who is
unauthorized to work in the United States –- given this court’s
precedent casting doubt on whether Title VII covers employment
relationships expressly prohibited by immigration statutes. See
Egbuna v. Time-Life Libraries, Inc., 153 F.3d 184, 188 (4th Cir.
1998) (en banc) (per curiam) (holding that an unauthorized alien
whose former employer refused to rehire him lacked a cause of
action under Title VII because ruling otherwise “would sanction
the formation of a statutorily declared illegal relationship”
“[g]iven Congress’ unequivocal declaration [in the Immigration
Reform and Control Act of 1986] that it is illegal to hire
unauthorized aliens”). Where “the person to whom [an EEOC]
subpoena is directed raises a substantial question” that the
subpoena specifically seeks to facilitate the investigation of
alleged employment practices that are categorically excluded
from Title VII, S.C. Nat’l Bank, 562 F.2d at 332, courts must
engage in serious consideration of the agency’s potential
encroachment before concluding that its enforcement request is

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supported by a “plausible” or “arguable” basis for jurisdiction,
ante at 8. Such consideration would be consistent with both our
“limited” role at the subpoena-enforcement stage, ante at 7, and
the Supreme Court’s insistence that we not “thwart[]” “Congress’
desire to prevent the Commission from exercising unconstrained
investigative authority,” Shell Oil, 466 U.S. at 65.
Moreover, examining whether the EEOC’s application for
subpoena enforcement exceeds its substantive jurisdiction would
not place us in “a world where an employer could impose all
manner of harsh working conditions upon undocumented aliens, and
no questions could be asked, no charges filed, and no agency
investigation even so much as begun.” Ante at 14. It would
simply recognize that an investigation of the employer’s alleged
civil and criminal violations of the immigration laws may fall
more appropriately under the purview of other agencies, whose
jurisdictions are defined by other, more applicable statutory
parameters.
Nonetheless, I concur in the judgment to enforce the
subpoena in this case because, although the facts pertaining to
Escalante’s immigration status are clear, the record plausibly
suggests that the employer has engaged in a practice or pattern
of discrimination that adversely affects other employees who are
authorized to work in the United States. See 42 U.S.C.
§§ 2000e-5(f), 2000e-6(e) (permitting the EEOC to bring civil

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actions). Moreover, the scope of Egbuna has not been fully
delineated where an unauthorized alien is actually working for
an employer covered by Title VII. I agree, therefore, that the
EEOC is “arguabl[y]” or “plausibl[y]” acting within its
investigative jurisdiction here, ante at 8, even as I underscore
Judge Wilkinson’s caution that “courts [must] stand ready to
curb . . . administrative overreach” when such jurisdiction is
lacking, ante at 14.

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