Law360, Washington (May 08, 2014, 5:18 PM ET) -- A Wisconsin federal judge on Tuesday ordered the tribal owner of a Milwaukee bingo casino to turn over to the Equal Employment Opportunity Commission information regarding a former employee's discrimination dispute, ruling the tribe was not immune to federal age discrimination law.
The Forest County Potawatomi Community must comply with an EEOC subpoena related to age-based complaints filed by its employees, requested in an age discrimination case filed by former Potawatomi Bingo Casino security shift manager Federico Colon, U.S. District Judge Lynn Adelman ordered, finding the tribe is subject to the Age Discrimination in Employment Act despite its claims that it was exempt from the law.
“The present case does not touch on the tribe’s right to self-governance in purely intramural matters,” Adelman said. “Accordingly, the tribe’s relationship with Colon is covered by the ADEA.”
Although the EEOC had argued that federal agencies are entitled to serve and enforce subpoenas even when statutory coverage for the target of that probe is in question, making the ADEA's applicability irrelevant, this was not the case in this dispute, Judge Adelman ruled, finding the subpoena was within an exemption to that provision.
Nevertheless, she also disagreed with the tribe’s contention that it is not an employer under the ADEA, noting that generally applicable federal statutes are considered to apply to tribes unless that law specifically addresses its applicability or meets certain specific exemptions.
The ADEA itself is silent on its application to tribal employers, but is a generally applicable law, broadly covering employers with 20 or more employees — a definition there is “no question” the bingo casino meets — which “easily” encompasses Indian tribes in their capacities as operators of commercial enterprises, according to the order.
Judge Adelman rejected the tribe’s claim that it is not a “person” subject to the ADEA because the statute specifically breaks out states and state-related entities to note they are considered to be employers, which the tribe argued implied that governmental entities — including Indian tribes — do not fit within the act’s definition of a “person" unless specifically referred to in the law.
This construction, however, is because the original 1967 version of the bill excluded states, and the specific definition was needed when Congress changed its mind and the bill was amended to include them under its provisions in 1974, the judge ruled.
Even if states were excluded from the law’s definition of “persons,” this does not automatically mean such an exclusion would also apply to tribes, because although courts may occasionally treat tribes as sovereigns and grant them exclusions from such definitions, this was not the case for generally applicable laws, Judge Adelman found.
She rejected the tribe’s claim that it could also be considered exempt from the ADEA in the matter because of the legal exemption allowed for self-governance of intramural matters, ruling that the employment relationship between a tribe-operated casino and non-Indian employee “obviously” didn’t count under this exemption and its argument that casino income is an important source of tribal revenue, making it an intramural matter, is overbroad.
The tribe’s argument that a previous EEOC ruling dismissing another discrimination case against the tribe by ruling it was not subject to the ADEA should mean it is not subject to the subpoena also holds no water, as the commission is not bound by statements made in a dismissal determination, according to the order.
Further, the EEOC was not legally required to conciliate before filing its subpoena, contrary to the tribe's claims, and neither was the information sought by the commission in the subpoena irrelevant, Judge Adelman ruled, saying the demand was designed to determine how the casino treated similarly situated employees.
A representative for the Forest County Potawatomi Community told Law360 Friday that the tribe does not discriminate based on age, and noted it was keeping its options open on whether to appeal.
"Various courts have reached different conclusions on the issue [of] whether the EEOC has jurisdiction to enforce the ADEA on tribal lands," it said.
The EEOC is represented by its attorneys P. David Lopez, James Lee, Gwendolyn Young Reams, Jean P. Kamp and Dennis R. McBride.
The Potawatomi tribe is represented by Andrew S. Oettinger, Rufino Gaytan III and Brian L. Pierson of Godfrey & Kahn SC.
The case is Equal Employment Opportunity Commission v. Forest County Potawatomi Community, case number 2:13-mc-00061, in the U.S. District Court for the Eastern District of Wisconsin.
