United States Court of Appeals,

Eleventh Circuit.

No. 95-4227

Non-Argument Calendar.

UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, PlaintiffAppellee,

v.

TIRE KINGDOM, INC., Defendant-Appellant.

April 12, 1996.

Appeal from the United States District Court for the Southern

District of Florida. (No. 94-8635-CV-JAG), Jose A. Gonzalez, Jr.,

Judge.

Before TJOFLAT, Chief Judge, and EDMONDSON and BARKETT, Circuit

Judges.

PER CURIAM:

The sole issue before us on this appeal is whether the Equal

Employment Opportunity Commission can proceed with an investigation

under the Age Discrimination in Employment Act of 1967, Pub.L. No.

90-202, 81 Stat. 602, 29 U.S.C. §§ 621-634 (1994) ("ADEA"), if the

underlying charge of age discrimination is untimely. We conclude

that it can.

I.

Paul Spencer was employed by defendant Tire Kingdom, Inc., as

an assistant manager until he was discharged from his position in

the summer of 1992. On July 26, 1993, more than a year after his

termination, Spencer filed a charge with the EEOC alleging that

Tire Kingdom had fired him from his position because of his age.

The charge included an allegation that a younger employee with

similar performance problems had not been discharged. As a result,
the EEOC commenced an investigation and requested from Tire Kingdom

information necessary to evaluate the allegations of age

discrimination. Specifically, the Commission asked for a written

position statement concerning Spencer's allegations; details of

Spencer's termination and replacement; information concerning

other recent terminations and comparable misconduct; copies of

disciplinary rules and discharge procedures; and information

concerning the size and structure of the company.

The EEOC awaited a response from Tire Kingdom for several

months, but none was forthcoming. Eventually, the Commission sent

a follow-up letter that once again requested the information, and

Tire Kingdom finally responded. In its response, however, Tire

Kingdom refused to provide the information requested, pointing out

that Spencer's charge had been filed more than a year after he had

been terminated. Under section 7(d) of the ADEA (as amended by the

Age Discrimination in Employment Act Amendments of 1978, Pub.L. No.

95-256, § 4(b)(1), 92 Stat. 189, 190), 29 U.S.C. § 626(d), an

individual in the state of Florida must file a charge with the EEOC

within three hundred days after the alleged unlawful practice

occurred. Spencer's charge came after that time limit. Thus, Tire

Kingdom was of the opinion that the lack of a timely charge

prevented the EEOC from conducting an investigation of the age

discrimination claim. The Commission was not satisfied with the

company's response and once again requested the information. In so

doing, it claimed that its authority to investigate claims of age

discrimination existed regardless of the filing of a timely charge.

Tire Kingdom repeatedly refused to supply the information, so
the EEOC issued an administrative subpoena duces tecum. On July

13, 1994, Tire Kingdom filed a motion with the Commission to quash

the subpoena, once again arguing that the investigation could not

proceed absent a timely charge. The Commission denied the motion.

Receiving no further response from Tire Kingdom, the EEOC brought

this action in district court to obtain enforcement of its

subpoena. After hearing argument of counsel, the court ordered

Tire Kingdom to comply with the subpoena. Tire Kingdom now appeals

from this order.

II.

 The issue of the EEOC's authority to conduct an investigation

into allegations of age discrimination is a question of law.

Therefore, we review the district court's ruling de novo. See,

e.g., Tisdale v. United States, 62 F.3d 1367, 1370 (11th Cir.1995).

 A district court's role in a proceeding to enforce an

administrative subpoena is limited. See EEOC v. Kloster Cruise

Ltd., 939 F.2d 920, 922 (11th Cir.1991). The court may inquire

into (1) whether the administrative investigation is within the

agency's authority, (2) whether the agency's demand is too

indefinite, and (3) whether the information sought is reasonably

relevant. See United States v. Florida Azalea Specialists, 19 F.3d

620, 622-23 (11th Cir.1994); see also United States v. Morton Salt

Co., 338 U.S. 632, 652, 70 S.Ct. 357, 368, 94 L.Ed. 401 (1950).

This appeal involves the first inquiry: whether the Commission has

the authority to conduct the challenged investigation.

We begin with the statute, which provides that

[t]he [Equal Employment Opportunity Commission] shall have the

power to make investigations and require the keeping of
records necessary or appropriate for the administration of

this chapter in accordance with the powers and procedures

provided in sections 9 and 11 of the Fair Labor Standards Act

of 1938, as amended [29 U.S.C. §§ 209, 211].

ADEA § 7(a), 29 U.S.C. § 626(a). The incorporation of section 9 of

the Fair Labor Standards Act of 1938, ch. 676, 52 Stat. 1060, 1065,

29 U.S.C. § 209, which in turn incorporates sections 9 and 10 of

the Federal Trade Commission Act, ch. 311, 38 Stat. 717, 722-24

(1914), 15 U.S.C. §§ 49, 50 (1994), provides the authority for the

EEOC to subpoena witnesses and documents. Likewise, the

incorporation of section 11 of the Fair Labor Standards Act, 52

Stat. at 1066-67, 29 U.S.C. § 211, gives the Commission the

authority in ADEA cases to "investigate such facts, conditions,

practices, or matters as [it] may deem necessary or appropriate to

determine whether any person has violated any provision of [the]

Act, or which may aid in the enforcement of the provisions of [the]

Act." Fair Labor Standards Act § 11(a), 52 Stat. at 1066, 29

U.S.C. § 211(a). Thus, the ADEA grants the Commission broad power

to investigate, and nothing in its language suggests that this

power is dependent upon the filing of an employee charge.

Furthermore, we note that section 7(b) of the ADEA, 29 U.S.C. §

626(b), grants the EEOC an independent right to bring suit to

enforce the provisions of the ADEA. An independent investigative

authority logically precedes this right. See EEOC v. American &

Efird Mills, Inc., 964 F.2d 300, 303 (4th Cir.1992).

 Tire Kingdom relies on the statute to support its argument

that the filing of a timely charge is a prerequisite to the

Commission's power to investigate. The company points specifically

to section 7(d), 29 U.S.C. § 626(d), which sets forth certain time
 1

Before 1991, the EEOC's right to bring a suit under the

ADEA was subject to certain time limitations. Section 7(e) of

the ADEA, 29 U.S.C. § 626(e), incorporated the statute of

limitations of § 6 of the Portal-to-Portal Act of 1947, ch. 52,

61 Stat. 84, 87-88, 29 U.S.C. § 255. The Civil Rights Act of

1991, Pub.L. No. 102-166, § 115, 105 Stat. 1071, 1079, however,

deleted from § 7(e) the reference to § 6 of the Portal-to-Portal

Act, and thus the statute of limitations no longer applies. 

limitations:

No civil action may be commenced by an individual under

this section until 60 days after a charge alleging unlawful

discrimination has been filed with the [Equal Employment

Opportunity Commission]. Such a charge shall be filed—

(1) within 180 days after the alleged unlawful

practice occurred; or

(2) in a case to which section 14(b) [29 U.S.C. §

633(b) ] applies, within 300 days after the alleged

unlawful practice occurred, or within 30 days after

receipt by the individual of notice of termination of

proceedings under State law, whichever is earlier.

ADEA § 7(d), 29 U.S.C. § 626(d). Tire Kingdom's reliance on

section 7(d) is misplaced. Section 7(d)'s time limits apply only

to cases brought under the ADEA by an individual against his or her

employer; by its plain reading, the section does not apply to the

EEOC.1

 Thus, despite Tire Kingdom's arguments to the contrary, the

Commission's power to conduct an investigation into claims of age

discrimination is not dependent upon the filing of a charge with

the time requirements of section 7(d) of the ADEA. See American &

Efird Mills, 964 F.2d at 304.

A review of the caselaw supports the EEOC's position. In

Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 111 S.Ct.

1647, 114 L.Ed.2d 26 (1991), the Supreme Court discussed the issue

of compulsory arbitration of claims filed under the ADEA. In doing

so, the Court observed that
 2

Besides relying on inapposite cases involving actions

brought by individual employees, as opposed to cases involving

actions brought by the EEOC, see, e.g., McClinton v. Alabama ByProducts Corp., 743 F.2d 1483 (11th Cir.1984), McBrayer v. City

of Marietta, 967 F.2d 546 (11th Cir.1992), Tire Kingdom also

relies on several Title VII cases. These are also inapposite. 

Unlike the ADEA, Title VII requires the filing of a charge before

the EEOC can exercise its powers and authority. See Civil Rights

Act of 1964, §§ 706(b), 709(a), 78 Stat. 241, 259, 262, 42 U.S.C.

§§ 2000e-5(b), 2000e-8(a) (1988 & Supp. V 1993). 

the EEOC's role in combating age discrimination is not

dependent on the filing of a charge; the agency may receive

information concerning alleged violations of the ADEA "from

any source," and it has independent authority to investigate

age discrimination. See 29 CFR §§ 1626.4, 1626.13 (1990).

Gilmer, 500 U.S. at 28, 111 S.Ct. at 1653 (emphasis added). The

Court also recognized that both individuals and the EEOC have the

right to bring actions to enforce the ADEA. See id. at 27, 111

S.Ct. at 1652-53. It is true that Gilmer does not address the

precise question in this case. Nevertheless, if we were to accept

Tire Kingdom's argument, we would have to conclude that the

Commission has no independent power to investigate under the ADEA.

Such a holding would contradict the statement we quote from

Gilmer.2

The Fourth Circuit and several lower courts have addressed the

question now before us. See, e.g., EEOC v. American & Efird Mills,

Inc., 964 F.2d 300 (4th Cir.1992); EEOC v. Ritenour Sch. Dist.,

692 F.Supp. 1068 (E.D.Mo.1988); EEOC v. Gladieux Refinery, Inc.,

631 F.Supp. 927 (N.D.Ind.1986). In each of these cases, the court

rejected the employer's argument that the EEOC lacked the authority

to proceed with an investigation in the absence of a charge of

discrimination. We are likewise unpersuaded by Tire Kingdom's

arguments in this case, and the order of the district court is
therefore

AFFIRMED.