Federal Court Approves EEOC Subpoena in Investigation of Giant Milwaukee Indian Casino

by U.S. Equal Employment Opportunity Commission (EEOC)
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Federal Agency Says Decision Confirms Authority to Investigate Charges of Discrimination Involving Business Operations of Indian Employers

MILWAUKEE, Wis. - On May 6, U.S. District Judge Lynn Adelman approved the U.S. Equal Employment Opportunity Commission's application to enforce a subpoena against Potawatomi Bingo Casino in Milwaukee, the federal agency announced today.  The ruling allows the EEOC to proceed with its investigation of an age discrimination charge filed against the casino by former employee Federico Colón.  The casino is located near downtown Milwaukee and has more than 3,000 employees. 

Judge Adelman rejected the casino's argument that it is not an "employer" under the Age Discrimination in Employment Act of 1967 (ADEA).  Citing U.S. Supreme Court and appeals court cases, he noted that federal statutes generally apply to all persons, including Indian tribes, but should not be applied when doing so would affect rights essential to Indian self-governance of "purely intramural" matters.  He found that, in running the casino, the Forest County Potawatomi Community was not acting in its sovereign governmental capacity, but as a business in interstate commerce, and that, because Colón is not a member of the tribe, his employment relationship with the casino was not "purely intramural."

The lawsuit, EEOC v. Forest County Potawatomi Community, d/b/a Potawatomi Bingo Casino, Case No. 13-MC-61 (E.D. Wis.), stems from an EEOC charge filed in February 2013, in which Colón alleged that the casino had violated the ADEA by harassing him and subjecting him to different terms and conditions of employment than younger co-workers.  In July, the EEOC's Chicago District Office requested information related to Colón's allegations.  The casino refused.  On Aug. 1, the EEOC served a subpoena for the information and gave the casino until Aug. 14 to comply.  The casino did not do so.  Instead, it filed a matter captioned Forest County Potawatomi Community v. Federico Colón and EEOC, Case No. 13-MC-53 (E.D. Wis.), before U.S. District Judge Charles Clevert, Jr. seeking to quash the EEOC subpoena. 

On October 18, the EEOC filed a subpoena enforcement action which was assigned to Judge Adelman, and also sought dismissal of the casino's motion to quash, which was then still pending before Judge Clevert.  On Oct. 21, Judge Clevert ruled in the EEOC's favor and dismissed the casino's motion to quash for lack of jurisdiction.  Now Judge Adelman has ordered the casino to comply with the EEOC's subpoena. 

According to EEOC Chicago Regional Attorney John C. Hendrickson, the court's decision is crucial to the agency's ability to enforce federal anti-discrimination laws.  

"Indian casinos have become some of the nation's largest employers - they're an exploding multi-billion dollar industry with huge numbers of employees who are not Indians," Hendrickson said.  "It is critical that all of the employees who work for these major employers in purely business operations such as gambling casinos be able to exercise their rights under federal law to be free of employment discrimination.  Judge Adelman's decision is a landmark in supporting that right in the Indian gambling industry."

Senior Trial Attorney Dennis R. McBride of the EEOC's Milwaukee Area Office and EEOC Associate Regional Attorney Jean P. Kamp litigated the cases before Judge Adelman and Judge Clevert. 

According to publicly available information, including the VISITMilwaukee website, the casino has 3,100 slot machines; 100 gaming tables; a 20-table poker room; a 500-seat theater; an off-track betting room which simulcasts horse and dog racing from across the country; a 1,350 seat bingo hall; five restaurants and four catering venues; and is completing a new 18-story hotel.  In 2013, it earned approximately $360 million in gross revenues.  Nationwide, Indian gambling casinos are said to earn about $28 billion each year.

The EEOC's Chicago District Office is responsible for processing charges of discrimination, administrative enforcement and the conduct of agency litigation in Illinois, Wisconsin, Minnesota, Iowa and North and South Dakota, with Area Offices in Milwaukee and Minneapolis.

The EEOC is responsible for enforcing federal laws prohibiting employment discrimination. Further information about the EEOC is available on its website at www.eeoc.gov.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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