TABLE OF CONTENTS
TABLE OF AUTHORITIES............................................................................ iii
SUGGESTION FOR REHEARING EN BANC............................................... 1
STATEMENT OF THE ISSUE........................................................................ 2
STATEMENT OF THE CASE......................................................................... 2
A. Statement
of Facts............................................................................. 2
B. Panel
Decision................................................................................... 4
ARGUMENT.................................................................................................... 5
The panel’s decision departs from
longstanding legal standards on EEOC subpoenas and, left unaltered, will unduly
constrict the EEOC’s ability to gather the “relevant” information it needs to
fulfill its Congressionally mandated law-enforcement function............................................................................... 5
A. The EEOC
is entitled to virtually any evidence that might shed light on a charging
party’s allegations, including evidence of potentially related systemic
discrimination................................................................. 6
B. When
reasonable evidence suggests that an individual charge may be connected to a
broader pattern or practice of discrimination, the EEOC need not obtain a
Commissioner’s charge to investigate the possibility of related, widespread
illegality.................................................................... 12
C. When an EEOC
subpoena seeks relevant information, a court must enforce it whether or not the
EEOC convinced the employer during the administrative process that the subpoena
is valid....................... 13
CONCLUSION............................................................................................... 15
ADDENDUM: Panel Opinion
ECF CERTIFICATE
CERTIFICATE OF SERVICE
TABLE OF AUTHORITIES
Cases
Circle K Corp. v. EEOC, 501 F.2d 1052 (10th Cir.
1974)............................ 1, 9
EEOC v. Assoc. Dry Goods Corp., 449 U.S. 590 (1981)................................. 7
EEOC v. Dillon Cos., 310 F.3d 1271 (10th Cir. 2002)................................. 1,
6
EEOC v. General Elec. Co., 532 F.2d 359 (4th Cir.
1976)............................. 12
EEOC v. Konica Minolta Bus. Solutions USA, Inc.,
639 F.3d 366 (7th Cir. 2011)...................................................................... 1,
10
EEOC v. Kronos, Inc., 620 F.3d 287 (3d Cir. 2010).................................. 1,
10
EEOC v. Occidental Life Ins. Co. of Cal., 535 F.2d
533 (9th Cir. 1976)........ 13
EEOC v. Schwan’s Home Serv., 644 F.3d 742 (8th Cir.
2011).................. 1, 10
EEOC v. Shell Oil Co., 466 U.S. 54 (1984)...................................... 1,
6, 13, 14
EEOC v. Univ. of New Mexico, 504 F.2d 1296 (10th Cir.
1974)....... 1, 7, 9, 13
EEOC v. UPMC, No. 11-2869, 2012 WL 1010856
(3d Cir. Mar. 27, 2012) (unpublished)............................................................ 10
Joslin Dry Goods v. EEOC, 483 F.2d 178 (10th Cir.
1973)......................... 1, 9
Rich v. Martin Marietta Corp., 522 F.2d 333 (10th
Cir. 1975).................... 1, 8
United Nuclear-Homestake Partners v. EEOC, Nos.
668-70 & 660-70,
1972 WL 11550 (10th Cir. June 14, 1972) (en banc)
(unpublished)................. 9
Statutes
Americans with Disabilities Act, 42 U.S.C. §§ 12101 et
seq............................ 2
§ 12117(a)............................................................................................... 6
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e
et seq.
42 U.S.C. § 2000e-8(a)............................................................................ 6
Rules and
Regulations
29 C.F.R. § 1601.16(b)(2)............................................................................... 12
Fed. R. App. P. 35(a)-(b).................................................................................. 2
SUGGESTION FOR
REHEARING EN BANC
The decision by the panel
of this Court misapprehends the scope of the EEOC’s investigative authority and
will impede the EEOC’s law-enforcement function. The issues raised by this
appeal thus are of exceptional importance.
By deeming evidence
of possible systemic discrimination irrelevant to an individual charge of
discrimination, the panel’s decision defines “relevance” in a way that conflicts
with the Supreme Court’s decision in EEOC v. Shell Oil Co., 466 U.S. 54
(1984), and with decisions of this Court including EEOC v. Dillon Cos.,
310 F.3d 1271 (10th Cir. 2002); Rich v. Martin Marietta Corp., 522 F.2d
333 (10th Cir. 1975); EEOC v. University of New Mexico, 504 F.2d 1296
(10th Cir. 1974); Circle K Corp. v. EEOC, 501 F.2d 1052 (10th Cir.
1974); and Joslin Dry Goods v. EEOC, 483 F.2d 178 (10th Cir. 1973).
Further, the
panel’s decision also deviates from recent decisions of other courts of appeals
allowing individual charges of discrimination to support expanded investigations
when evidence is uncovered suggesting that the allegations raised in an individual
charge could be connected to broader, systemic discrimination. See EEOC
v. Schwan’s Home Serv., 644 F.3d 742 (8th Cir. 2011); EEOC v. Konica
Minolta Bus. Solutions USA, Inc., 639 F.3d 366 (7th Cir. 2011); EEOC v.
Kronos, Inc., 620 F.3d 287 (3d Cir. 2010).
Accordingly, the
EEOC respectfully requests panel rehearing or rehearing en banc. See
generally Fed. R. App. P. 35(a)-(b) (standards for rehearing en banc).
STATEMENT
OF THE ISSUE
Can the EEOC subpoena
information about a possible pattern or practice of discrimination where its
investigation of individual charges has revealed that others all over the
country also have filed charges alleging similar acts of discrimination
involving the same decisionmaker?
STATEMENT
OF THE CASE
A. Statement
of Facts
In 2007, Gregory
Graves and Thomas Palizzi filed separate charges with the EEOC’s Denver Field
Office alleging that BNSF had discriminated on the basis of disability in
violation of the Americans with Disabilities Act (“ADA”). See 42 U.S.C.
§§ 12101 et seq. Each alleged that BNSF had refused to hire him as a
conductor trainee after BNSF’s medical officer in Fort Worth, Texas, Dr.
Michael Jarrard, had determined that he posed a significant risk of injury to
self or others. (R.1-2, Graves Charge; R.1-5, Palizzi Charge.)
In addition to Graves’s
and Palizzi’s charges, EEOC’s investigative files contained other charges against
BNSF from Wyoming, Texas, Minnesota, and Kansas alleging similar disability
discrimination. The other parties were denied jobs ranging from conductor
trainee to track laborer to electrician diesel engine mechanic. Like Graves and Palizzi, most of the other charging parties expressly implicated Dr. Jarrard as a
key BNSF decisionmaker. (R.1-1, Sienko Decl. at 4-6.)
Suspecting that BNSF
might have a centralized decisionmaking process excluding individuals with
disabilities from certain jobs regardless of their ability to perform the
essential functions of the job, the EEOC considered that Graves and Palizzi may
have been rejected as part of a larger pattern or practice of discrimination.
If Dr. Jarrard did, in fact, believe that all applicants with disabilities were
unfit for certain positions, he would not have considered the suitability of Graves, Palizzi, or any other disabled applicant individually. Discrimination against any
particular charging party because of disability would, in these circumstances,
be a result of class discrimination as well.
The EEOC served BNSF with
a request for information concerning the manner in which BNSF stored electronic
data for its applicants and employees throughout the United States as a prelude
to serving a focused request for substantive information. (R.1-8, EEOC
letter.) BNSF refused to provide the information (R.1-10, BNSF letter), and
the EEOC issued a subpoena to get it. (R.1-11, Subpoena.) BNSF filed a
petition to revoke or modify the subpoena (R.1-13), which the EEOC’s
Commissioners reviewed and denied. (R.1-14, Final Determ.) The EEOC then
filed this enforcement action. (R.1, App. for Order.)
The district court denied
enforcement. (R.8, Minutes.) Calling the subpoena “pervasive” and
characterizing it as seeking “plenary discovery,” the district court emphasized
that neither Graves nor Palizzi had alleged a pattern or practice of
discrimination. “The demand for data on a nationwide basis with two individual
claims involving only applicants in Colorado is excessive,” the court said.
“And while wide deference to administrative inquiries and investigations – wide
deference to the scope of the subpoenas is given, it does not transcend the gap
between the pattern and practice investigation and the private claims that have
been shown here.” (R.10, Tr. at 18.)
B. Panel
Decision
The panel affirmed
the district court’s refusal to enforce the subpoena. (Slip Op. at 10.) Acknowledging
that “the EEOC may access ‘any evidence of any person being investigated’ so
long as that evidence ‘relates to unlawful employment practices . . . and is
relevant to the charge under investigation’” (id. at 5), the panel
nevertheless focused on the EEOC’s failure to mention or describe the
additional charges to BNSF earlier in the administrative process. (Id. at 6.) The panel also characterized the EEOC’s request for information as “incredibly
broad.” (Id. at 7.) “Any act of discrimination could be part of
a pattern or practice of discrimination,” the panel stated, “but not every
charge of discrimination warrants a pattern or practice investigation.” (Id. (emphasis in original).)
The
panel rejected the EEOC’s argument that evidence of Dr. Jarrard’s consistent
involvement suggested a nationwide pattern or practice on the ground that “only
the charges filed by Mr. Graves and Mr. Palizzi were ‘the charge[s] under
investigation.’” (Id. at 8 n.3.) Rejecting a conception of disability
discrimination as class discrimination, the panel faulted the EEOC for not focusing
solely on the individual allegations raised by Graves and Palizzi. (Id. at 9.) The panel noted that if the EEOC “ascertains some violation warranting a
broader investigation” it then would be allowed to “expand its search.” (Id.) The panel concluded that “nothing prevents the EEOC from aggregating the
information it possesses in the form of a Commissioner’s Charge.” (Id.)
ARGUMENT
The panel’s decision departs from longstanding legal
standards on EEOC subpoenas and, left unaltered, will unduly constrict the
EEOC’s ability to gather the “relevant” information it needs to fulfill its
Congressionally mandated law-enforcement function.
The EEOC’s investigation
of Graves’s and Palizzi’s charges revealed that other individuals from multiple
states also have accused the same BNSF medical review officer of the same type
of disability discrimination. It thus was reasonable for the EEOC to suspect
that BNSF may be engaged in a pattern or practice in violation of the ADA. Because evidence about such a pattern or practice might cast light on what happened
to Graves and Palizzi (since the pattern or practice would appear to include
the actions taken against them), the information the EEOC subpoenaed is
“relevant” to their charges and the subpoena must be enforced.
In ruling otherwise, the
panel’s decision effectively adopts a new definition of “relevance” that
conflicts with the Supreme Court’s, this Court’s, and other Circuits’
precedent. The decision circumscribes the EEOC’s subpoena power and will
inhibit the Commission’s statutorily required investigations. The panel, or
the Court en banc, should rehear this appeal.
A. The EEOC is entitled
to virtually any evidence that might shed light on a charging party’s
allegations, including evidence of potentially related systemic discrimination.
Unlike other
federal agencies, which may demand access to records relevant to matters within
their jurisdiction even without a complaint of wrongdoing, the EEOC may only
obtain evidence “relevant to the charge under investigation.” 42 U.S.C. §§
2000e-8(a), 12117(a). Nevertheless, both the Supreme Court and this Court have
explained that the “relevance” limitation “is not especially constraining.” Shell
Oil, 466 U.S. at 68-6 9; Dillon, 310 F.3d at 1274. As long as the
EEOC has a valid charge to justify its initial investigation, it is entitled to
“virtually any material that might cast light on the allegations against the
employer.” Shell Oil, 466 U.S. at 68; Dillon, 310 F.3d at 1274.
This Court has emphasized that “the purpose of the charge . . . is only to
initiate the EEOC investigation [and the] requirement that charges state the
facts on which they are based must accordingly be given a flexible
interpretation as applied to allegations of different unlawful employment
practices.” Univ. of New Mexico, 504 F.2d at 1303-04.
The EEOC maintains
records of all charges filed throughout the country. As part of a reasonable
investigation into a new charge, investigators may search agency records for
other charges or investigations involving the same employer. The Supreme Court
has acknowledged that “statistics and other information about an employer’s
general practices may certainly be relevant to individual charges of
discrimination.” EEOC v. Assoc. Dry Goods Corp., 449 U.S. 590, 604 (1981). Indeed, the Supreme Court has encouraged the EEOC, when investigating a
single charge, to include information derived from other charges in the active
investigative file. Id.
Here, the EEOC
began its investigation into Graves’s and Palizzi’s charges by reviewing its
nationwide docket and discovering similar charges by other individuals. Information
about whether a single decisionmaker may be acting based on class
characteristics rather than individual attributes certainly might cast light on
individual charges under investigation. Thus, this discovery suggested to the
EEOC that what happened to Graves and Palizzi may be part of a larger pattern
or practice of disability discrimination.
The panel’s
decision forbids the EEOC, without more, from subpoenaing any information about
this larger question. The panel effectively held that information about the
possible pattern or practice is irrelevant to Graves’s and Palizzi’s individual
allegations. Such a result defies both common sense and longstanding case law.
Imagine two
homeowners telling an electricity company that they have no power, and then four
other homeowners independently reporting outages as well. In its effort to restore
power to the two initial homeowners, the company could certainly start by going
directly to their homes and checking for downed power lines on the premises. However,
it could also reasonably begin by investigating whether all six outages share a
root cause. Indeed, the company may have to explore this possibility to be
able to resolve the two initial complaints. And if the source of the outages
is a systemic one, a broader investigation would also prevent the rest of the
town’s residents from being left in the dark unnecessarily simply because they
did not lodge their own complaints.
This is precisely the
path the EEOC was taking with its subpoena here. And the EEOC’s approach is
fully consistent with this Court’s well-established precedent. This Court has
refused to narrowly circumscribe the EEOC’s investigative authority. See
Rich, 522 F.2d at 344 (“It cannot be said . . . that the policy of this
court has been to narrowly circumscribe discovery in EEOC cases.”); cf. United
Nuclear-Homestake Partners v. EEOC, Nos. 668-70 & 660-70, 1972 WL
11550, at *2 (10th Cir. June 14, 1972) (en banc) (unpublished) (“To
require the charge to contain a specific bill of particulars would necessarily
limit the scope of the investigation to the particular transaction or
transactions meticulously described, and at the same time would curtail the
discovery mission of the Commission, whereby the function Congress charged it
to carry out would surely fail.”).
Moreover, this
Court, and many other courts, have long recognized that the EEOC is allowed,
indeed encouraged, to subpoena information about the larger context in which
individual employment decisions are made. In University of New Mexico,
for instance, this Court held that the EEOC need not investigate an employer’s
stated justifications for an individual decision before investigating the
possibility that the stated justifications are pretextual, and that the
decision was actually motivated by class discrimination. 504 F.2d at 1305-06; see
also Circle K, 501 F.2d at1054-55 (ordering enforcement of a
subpoena issued in conjunction with an investigation of an individual charge
despite objections to its “geographic area and scope of inquiry”); Joslin
Dry Goods, 483 F.2d at 182-84 (suggesting that this Court would uphold a
subpoena seeking company-wide data where, like here, there is evidence of
company-wide practices and procedures).
Other Circuits
recently have emphasized the EEOC’s authority to subpoena information about
possible systemic discrimination as part of an investigation into an individual
charge. As the Eighth Circuit has explained, “the EEOC ha[s] the authority to
subpoena information relevant to systemic gender discrimination even absent a
valid systemic charge.” Schwan’s Home Serv., 644 F.3d at 748. Likewise,
the Seventh Circuit acknowledges that an individual charge of race
discrimination in working conditions supports a related investigation
into a larger possible pattern of hiring discrimination. Konica
Minolta Bus. Solutions, 639 F.3d at 369-70.
The Third Circuit
has observed, “EEOC’s investigatory power is broader than the four corners of
the charge; it encompasses not only the factual allegations contained in the
charge, but also any information that is relevant to the charge.” Kronos,
620 F.3d at 299. Only days ago, the Court explained, “if the EEOC meets its
burden to demonstrate that the information is relevant to [charging party’s]
charge, as it construes her allegations, it is entitled to an order enforcing
the subpoena notwithstanding that the information may allow it to explore other
claims of discrimination against [respondent].” EEOC v. UPMC, No.
11-2869, 2012 WL 1010856, at *4 (3d Cir. Mar. 27, 2012) (unpublished).
Despite this precedent,
the panel’s decision requires the EEOC to investigate individual allegations as
if they occur in a vacuum and restricts the EEOC’s investigation to the four
corners of the charge(s) before it. (Slip Op. at 9.) The panel would have the
EEOC ignore the possibility of class discrimination because “only the charges
filed by Mr. Graves and Mr. Palizzi were ‘the charge[s] under investigation.’”
(Slip Op. at 8 n.3.) The panel suggests that the EEOC must first investigate Graves’s and Palizzi’s charges and then – and apparently only then – “if it ascertains some
violation warranting a broader investigation – expand[ ] its search.” (Id.
at 9 (emphasis added).)
The panel’s reasoning
ignores that the EEOC searched its nationwide files precisely because it was
investigating the Graves and Palizzi charges. The EEOC’s investigation of the
individual charges is what brought the potential systemic discrimination to
light. This is thus not a case in which the EEOC speculated about the theoretical
possibility of systemic discrimination and issued a subpoena on an unfounded
hunch.
By the panel’s logic,
even if the EEOC possessed one hundred individual charges against BNSF alleging
the same sort of ADA violation, the EEOC still would be unable to subpoena
possible systemic information without first investigating only whether Graves
or Palizzi was discriminated against in violation of the ADA. This is
backwards. As noted, it may not even be possible to uncover whether Palizzi
and Graves were discriminated against on the basis of disability without first
probing whether a larger pattern or practice was at play.
B. When reasonable evidence
suggests that an individual charge may be connected to a broader pattern or
practice of discrimination, the EEOC need not obtain a Commissioner’s charge to
investigate the possibility of related, widespread illegality.
In suggesting that the
EEOC “aggregat[e] the information it possesses in the form of a Commissioner’s
Charge,” (Slip Op. at 9), the panel overlooked the controlling legal question.
The issue is not whether an individual charge on its face supports a systemic
subpoena. Rather, it is whether the EEOC can, based on evidence uncovered
suggesting a larger pattern, broaden its investigation and subpoena relevant
information without getting an additional charge specifically alleging a
pattern or practice of discrimination. For the reasons described above, the
answer is yes. As the Fourth Circuit has explained:
If the EEOC uncovers during [its] investigation
facts which support a charge of another [act or type of] discrimination than
that in the filed charge, it is neither obliged to cast a blind eye over such
discrimination nor to sever those facts and the discrimination so shown from
the investigation in process and file a Commissioner’s charge thereon,
beginning again a repetitive investigation of the same facts already developed
in the ongoing investigation.
EEOC v. General Elec. Co., 532
F.2d 359, 365 (4th Cir. 1976).
Notably, when they
considered BNSF’s petition to modify or revoke the subpoena, the EEOC’s
Commissioners rejected BNSF’s relevancy argument. (R.1-14, Final Determ. at
6-12.) See 29 C.F.R. § 1601.16(b)(2). Since the EEOC as a whole has
already approved of the issuance of a systemic subpoena premised on Graves’s
and Palizzi’s individual charges, no purpose would be served by requiring one
of the Commissioners to now bring a charge asking for the same information. Such
a requirement “would be to champion form over substance and to generate ‘an
inexcusable waste of valuable administrative resources’ and ‘intolerable
delay,’ in violation of statutory purpose.” EEOC v. Occidental Life Ins.
Co. of Cal., 535 F.2d 533, 542 (9th Cir. 1976), aff’d, Occidental
Life Ins. Co. of Cal. v. EEOC, 432 U.S. 355 (1977).
C. When
an EEOC subpoena seeks relevant information, a court must enforce it whether or
not the EEOC convinced the employer during the administrative process that the
subpoena is valid.
The panel criticized
the EEOC for not disclosing the basis for its nationwide subpoena to BNSF before
going to district court. (Slip Op. at 4 n.1.) But the panel did not explain
how earlier disclosure would have made a difference to the subpoena’s
enforceability. Nor could it have. The extent of notice that an employer
receives “was not envisioned as a substantive constraint on the Commission’s
investigative authority.” Shell Oil, 466 U.S. at 75.
As described above, an
EEOC subpoena must be enforced unless it is irrelevant to any lawful purpose. Univ. of New Mexico, 504 F.2d at 1302. Thus, as long as the subpoena seeks
relevant information, the EEOC need not, during the administrative enforcement
phase, describe the evidence behind that subpoena to the employer. The EEOC
could have provided a more detailed explanation for expanding the
investigation. But its failure to do so has no bearing on the narrow, and the
only, legal question the district court and the panel were required to answer –
i.e., whether the information sought was relevant to the individual charges at
issue. As the Supreme Court has explained in a related context:
To construe the notice requirement as
respondent suggests would place a potent weapon in the hands of employers who
have no interest in complying voluntarily with the Act, who wish instead to
delay as long as possible investigations by the EEOC. It would always be open
to such an employer to challenge the adequacy of the Commission’s disclosure of
the data on which a charge is founded…. The difficulties of making such an
assessment responsibly and the opportunities for appeals of district court
judgments would substantially slow the process by which the EEOC obtains
judicial authorization to proceed with its inquiries.
Shell Oil, 466 U.S. at 81.
The panel also criticized
the EEOC for providing the district court with a summary of the other charges
rather than with a copy of the charges themselves. (Slip Op. at 6 n.2.) The
EEOC, however, did not provide a casual summary; it provided a sworn
declaration from the Denver Field Office Director testifying to the existence
of the other charges and the contents of their case files. (R.1-1, Sienko
Decl. at 4-6.) BNSF, which possesses its own copy of the relevant charges, did
not dispute the accuracy of the EEOC’s summary. The district court did not
question it either. And neither the district court nor BNSF objected to the
EEOC’s failure to place the actual charges in the record. The panel thus has
mistaken potential evidentiary objections (never raised, much less ruled upon,
below) for a “relevance” challenge.
Seeming to recognize that
information from other charging parties might support a broader inquiry into
Graves’s and Palizzi’s charges, the panel suggested that the EEOC might have
been “entitled to information relating to other positions and offices in Colorado” but not nationwide. (Slip Op. at 9 (emphasis in original).) The panel did
not explain this distinction. Given that the other charges came from four
other states, and that Dr. Jarrard appears to have made decisions for employees
throughout the country, it is unclear why the panel would limit an
investigation to Colorado. On these facts, the only basis for limiting the
subpoena geographically is that compliance with this request would be unduly
burdensome. But BNSF has waived this argument. (EEOC Reply Br. at 28.)
CONCLUSION
The panel’s decision is
an outlier, departing from precedent and unduly restricting the EEOC’s
investigative authority. For the reasons described above, the EEOC
respectfully requests panel rehearing or rehearing en banc.
Respectfully
submitted,
P. DAVID LOPEZ s/
Gail S. Coleman
General Counsel _________________________
GAIL
S. COLEMAN
LORRAINE C. DAVIS Attorney
Acting Associate General Counsel EQUAL
EMPLOYMENT
OPPORTUNITY COMMISSION
DANIEL T. VAIL 131
M Street, NE, Room 5SW24L
Acting Assistant General Counsel Washington, DC
20507
(202)
663-4055
gail.coleman@eeoc.gov
