ORAL ARGUMENT REQUESTED

 

No. 16-2053

 

 

IN THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

 

 

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

          Petitioner/Appellant,

 

v.

 

TRICORE REFERENCE LABORATORIES,

          Respondent/Appellee.

 

 

On Appeal from the United States District Court

for the District of New Mexico

Hon. William P. Johnson, District Judge, Case No. 1:15-mc-00046-WJ

 

OPENING BRIEF OF THE EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION AS APPELLANT

 

 

P. DAVID LOPEZ

General Counsel

 

JENNIFER S. GOLDSTEIN

Associate General Counsel

 

MARGO PAVE

Assistant General Counsel

 

JEREMY D. HOROWITZ

Attorney

 

 

U.S. EQUAL EMPLOYMENT

   OPPORTUNITY COMMISSION

Office of General Counsel

131 M St., N.E., Room 5SW24J

Washington, D.C.  20507

(202) 663-4716

jeremy.horowitz@eeoc.gov

TABLE OF CONTENTS

TABLE OF AUTHORITIES............................................................................ iii

 

STATEMENT OF RELATED APPEALS........................................................ 1

 

STATEMENT OF JURISDICTION................................................................. 1

 

STATEMENT OF THE ISSUES...................................................................... 1

 

STATEMENT OF THE CASE......................................................................... 2

 

          A.      Course of Proceedings................................................................... 2

 

          B.      Statement of Facts......................................................................... 2

 

          C.      District Court’s Decision............................................................... 8

 

STANDARD OF REVIEW............................................................................. 10

 

SUMMARY OF ARGUMENT....................................................................... 10

 

ARGUMENT.................................................................................................. 11

 

          I.       The Materials the Commission Seeks are Relevant to Its Reasonable Investigation of Guadiana’s Charge............................................. 11

 

                   A.      The First Subpoena Request is a Reasonable Means of Investigating TriCore’s Admitted Violation of the ADA......................... 12

 

                   B.      The Second Subpoena Request Seeks Information that is Clearly Relevant to Guadiana’s Charge.......................................... 18

 

          II.      Privacy Concerns are Not a Valid Reason to Avoid Compliance with an Administrative Subpoena............................................................ 30

 

CONCLUSION............................................................................................... 32

 

STATEMENT REGARDING ORAL ARGUMENT...................................... 33

 

CERTIFICATE OF COMPLIANCE............................................................... 34

 

ELECTRONIC FILING CERTIFICATE......................................................... 35

 

 

 

 

Table of Authorities

     Page(s)

Cases

Aka v. Washington Hospital Center,
156 F.3d 1284 (D.C. Cir. 1998) (en banc).................................................. 15

 

Blue Bell Boots, Inc. v. EEOC,
418 F.2d 355 (6th Cir. 1969)..................................................................... 22

 

EEOC v. Burlington Northern Santa Fe Railroad,
669 F.3d 1154 (10th Cir. 2012)........................................................... passim

 

EEOC v. Cambridge Tile Manufacturing Co.,
590 F.2d 205 (6th Cir. 1979)............................................................... 13, 16

 

EEOC v. Deer Valley Unified School District,
968 F.2d 904 (9th Cir. 1992)....................................................................... 9

 

EEOC v. Dillon Cos.,
310 F.3d 1271 (10th Cir. 2002)............................................... 10, 12, 18, 29

 

EEOC v. General Electric Co.,
532 F.2d 359 (4th Cir. 1976)..................................................................... 17

 

EEOC v. Konica Minolta Business Solutions U.S.A., Inc.,
639 F.3d 366 (7th Cir. 2011)..................................................................... 26

 

EEOC v. Kronos Inc.,
620 F.3d 287 (3d Cir. 2010)...................................................................... 20

 

EEOC v. Maritime Autowash, Inc.,
No. 15-1947, --- F.3d ---, 2016 WL 1622290 (4th Cir. 2016).................... 19

 

EEOC v. McLane Co.,
804 F.3d 1051 (9th Cir. 2015)............................................................. passim

 

EEOC v. Randstad,
685 F.3d 433 (4th Cir. 2012)..................................................................... 18

 

EEOC v. Royal Caribbean Cruises, Ltd.,
771 F.3d 757 (11th Cir. 2014)................................................. 26, 27, 28, 29

 

EEOC v. Schwan’s Home Service,
644 F.3d 742 (8th Cir. 2011)..................................................................... 19

 

EEOC v. Shell Oil Co.,
466 U.S. 54 (1984).............................................................................. passim

 

EEOC v. Trinity Health Corp.,
107 F. Supp. 3d 934 (N.D. Ind. 2015)....................................................... 28

 

EEOC v. United Airlines, Inc.,
693 F.3d 760 (7th Cir. 2012)..................................................................... 15

 

EEOC v. University of New Mexico,
504 F.2d 1296 (10th Cir. 1974)................................................................. 29

 

EEOC v. Waffle House, Inc.,
534 U.S. 279 (2002)................................................................................... 11

 

General Telephone Co. of the Northwest, Inc. v. EEOC,
446 U.S. 318 (1980)................................................................... 1, 13, 16, 27

 

Smith v. Midland Brake, Inc.,
180 F.3d 1154 (10th Cir. 1999) (en banc).............................................. 4, 15

 

U.S. Airways, Inc. v. Barnett,
535 U.S. 391 (2002)................................................................................... 16

 

University of Pennsylvania v. EEOC,
493 U.S. 182 (1990)............................................................................ passim

 

Vallario v. Vandehey,
554 F.3d 1259 (10th Cir. 2009)................................................................. 10

 

Young v. United Parcel Services,
575 U.S. ---, 135 S. Ct. 1338 (2015)................................................ 7, 20, 23

Statutes

28 U.S.C. § 1291.............................................................................................. 1

 

29 U.S.C. § 161.............................................................................................. 11

 

29 U.S.C. § 161(2)............................................................................................ 1

 

Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 11, 18, 22

 

42 U.S.C. § 2000e(k)................................................................................. 26

 

42 U.S.C. § 2000e-5(b)........................................................................ 22, 28

 

42 U.S.C. § 2000e-5(f)(3)............................................................................. 1

 

42 U.S.C. § 2000e-8(a)........................................................................ 11, 18

 

42 U.S.C. § 2000e-8(e)............................................................................... 30

 

42 U.S.C. § 2000e-9................................................................................... 11

 

Americans with Disabilities Act of 1990, as amended, 42 U.S.C. §§ 12101-12117............................................................................................................ passim

 

42 U.S.C. § 12111(9)(b)......................................................................... 4, 15

 

42 U.S.C. § 12117(a)................................................................................... 1

Other Authorities

29 C.F.R. § 1601.12(a)(3)............................................................................... 19

 

29 C.F.R. § 1601.12(b)................................................................................... 19

 

EEOC Compliance Manual, Sec. 22, para. 803 [section 22.3].......................... 5

 

Fed. R. App. P. 4(a)(1)(B)................................................................................ 1

 

Fed. R. Civ. P. 26.............................................................................................. 9

 

TriCore Locations, http://www.tricore.org/locations (last visited May 26, 2016)................................................................................................................... 25

 

STATEMENT OF RELATED APPEALS

There are no prior or related appeals.

STATEMENT OF JURISDICTION

The EEOC filed this subpoena enforcement action in the U.S. District Court for the District of New Mexico on November 30, 2015.  R.1; AA.4-6.[1]  The district court had jurisdiction over this matter pursuant to 42 U.S.C. § 12117(a), 42 U.S.C. §§ 2000e-5(f)(3) and 2000e-9, and 29 U.S.C. § 161(2).  On February 8, 2016, the district court entered a final order and judgment denying the EEOC’s application to enforce its administrative subpoena.  R.13; AA.109.  The EEOC filed a timely notice of appeal on April 7, 2016.  R.15; AA.154-55; see Fed. R. App. P. 4(a)(1)(B).  This Court now has jurisdiction over the appeal pursuant to 28 U.S.C. § 1291.

STATEMENT OF THE ISSUES

1.  May the EEOC obtain information about an employer relating to violations uncovered during the course of its reasonable investigation of a charge of discrimination, pursuant to General Telephone Co. of the Northwest, Inc. v. EEOC, 446 U.S. 318 (1980), and EEOC v. Burlington Northern Santa Fe Railroad, 669 F.3d 1154 (10th Cir. 2012)?

2.  In its investigation of a charge alleging both disability and gender (pregnancy) discrimination, may the EEOC obtain information about similarly situated pregnant employees without a disability, and similarly disabled non-pregnant employees, pursuant to the relevancy standard established in EEOC v. Shell Oil Co., 466 U.S. 54 (1984), and Burlington Northern?

STATEMENT OF THE CASE

A.         Course of Proceedings

The EEOC appeals an order of the United States District Court for the District of New Mexico (Johnson, J.) denying enforcement of an administrative subpoena the EEOC issued to Defendant TriCore Research Laboratories.  R.12; AA.95-108.  The EEOC filed its Application for an Order to Show Cause Why an Administrative Subpoena Should Not Be Enforced on November 30, 2015.  After full briefing by both parties, the district court denied the petition on February 8, 2016.  R.12; AA.95-108.  The EEOC filed a Notice of Appeal on April 7, 2016.  R.15; AA.154-55.

B.         Statement of the Facts

Charging party Kellie Guadiana worked for TriCore as a phlebotomist in its Albuquerque location.  R.3; AA.31, 66.  TriCore is a clinical reference laboratory that provides diagnostic testing.  R.3; AA.29.  TriCore terminated Guadiana’s employment on May 5, 2012.  R.3; AA.34.  Guadiana filed a charge with the EEOC on June 26, 2012, alleging that TriCore had discriminated against her based on her disability and sex (pregnancy).  R.3; AA.26.  She claimed that she had a disability, rheumatoid arthritis, that her pregnancy exacerbated, and that TriCore terminated her employment rather than engage in the interactive process with her to find a reasonable accommodation for her disability.  Id.

After the EEOC informed TriCore of Guadiana’s charge, TriCore provided a written response in which it asserted, inter alia, that Guadiana’s disability required her to sit for at least 75% of her shifts, did not allow her to lift more than 15 pounds, and precluded her from exposing herself to infectious diseases and performing some types of blood draws.  R.3; AA.32-33.  Based on these limitations, TriCore determined that she was not able to perform the essential functions of her phlebotomist position.  R.3; AA.33.  TriCore informed her that “there were a variety of open positions available, and she needed to apply for whichever position met her needs”; it did not otherwise assist her in trying to find a suitable alternative placement.  Id.  The response also asserted that TriCore terminated Guadiana’s employment only after Guadiana failed to provide any additional documentation that she was able to perform the essential functions of her position and did not apply for any open positions.  R.3; AA.34. 

TriCore explained in its position statement that its response to Guadiana’s request for a daytime shift as a reasonable accommodation was limited to allowing her to apply for two daytime shift positions on an equal basis with other applicants, after which it would select the candidates it deemed the most qualified.  R.3; AA.31.  The Americans with Disabilities Act (ADA), however, requires reassignment of qualified disabled employees to vacant positions, not merely permitting these employees to join a pool of other applicants.  See 42 U.S.C. § 12111(9)(b); Smith v. Midland Brake, Inc., 180 F.3d 1154, 1165 (10th Cir. 1999) (en banc).  Based on TriCore’s admission, as well as its failure to offer Guadiana assistance in finding suitable reassignment beyond instructing her to apply for open positions that met her needs, the EEOC concluded that TriCore might have a company-wide policy and/or practice of refusing to provide reassignment as a reasonable accommodation to qualified employees with a disability.  R.3; AA.37.  In addition, based on TriCore’s assertion that it provided a temporary accommodation of only 30 days for Guadiana to seek an alternative position, the EEOC sought to discover whether TriCore treated pregnant employees less favorably than similarly situated non-pregnant employees.  Id. 

To investigate these suspicions further, the Commission sent TriCore a request for information on November 24, 2014, asking for three categories of information: (1) material on all alternative jobs for which Guadiana applied after TriCore determined she could not perform the phlebotomist position; (2) the complete list of its employees requesting an accommodation due to disability from November 1, 2010, forward, along with their contact and identifying information and information about the accommodation each one sought; and (3) a list of all TriCore employees who had been pregnant at any time from November 1, 2010, onward, along with their contact and identifying information, the accommodation (if any) each one sought, and any accommodations that might have been made for each.  R.3; AA.36.  The following day the Commission sent TriCore a letter explaining that it was investigating possible “[f]ailure to accommodate persons with disabilities and/or failure to accommodate women with disabilities (due to pregnancy).”  R.3; AA.37.  The letter explained that these grounds for investigation were “like and related to the underlying charge, or … based on evidence uncovered during the EEOC’s investigation of the underlying charge.”  Id.  The letter cited the EEOC Compliance Manual, Sec. 22, para. 803 [section 22.3] for its authority to expand the scope of its investigation.  Id.   

TriCore’s counsel responded with two letters dated January 22, 2015.  The first asked for an extension of time until February 6, 2015, to respond to the document request, while the second sought more information about the source of the EEOC’s authority to expand its request.  R.3; AA.38-40.  On February 6, 2015, TriCore sent another letter reiterating its position that Guadiana did not have any valid claims and “therefore respectfully object[ing] to production of the information sought” in the Commission’s request for information, citing EEOC v. Burlington Northern Santa Fe Railroad, 669 F.3d 1156 (10th Cir. 2012).  R.3; AA.41-44. 

On February 23, 2015, the Commission sent TriCore a more time-limited request for information, phrased as follows:

1.       A list of all employees who requested an accommodation due to disability from January 1, 2012 through present.  Please annotate this list with the following:

 

a.       name;

b.       date of request and if the request was granted;

c.       most recent address and home/cell number; and

d.       social security number.

 

2.       A list of all employees who were pregnant while employed and if any accommodation was requested, from January 1, 2012 through present.  Please annotate the list with the following information:

a.       name;

b.       date of request and if the request was granted;

c.       address;

d.       most recent address and home/cell number; and

e.       social security number. 

 

R.3; AA.45-46.  This letter explained that the information requested was “relevant to [Guadiana’s] charge alleging failure to accommodate (Pregnancy and Disability) and discharge,” and explained that it would need to issue a subpoena if TriCore did not provide the information voluntarily.  Id.  TriCore continued to maintain that it would not produce any additional information but asked the EEOC to defer action until the Supreme Court announced its decision in Young v. United Parcel Service, although it refused to explain why it believed Young was relevant to the dispute.  R.3; AA.47.  After the Court announced its decision in Young on March 25, 2015, TriCore continued to refuse to comply with the information request. 

On April 28, 2015, the EEOC issued a subpoena for the information it had unsuccessfully sought in its February 23, 2015, request.  R.3; AA.51-52.  TriCore filed a timely petition with the EEOC to revoke the subpoena.  R.3; AA.56-64.  This petition argued that the subpoena was an overly broad “fishing expedition” and unduly burdensome in light of Guadiana’s individual charge alleging disability and pregnancy discrimination.  R.3; AA.59, 63.  The Commission denied TriCore’s petition.  R.3; AA.65-78.  It concluded that the expanded request for information was reasonable in light of TriCore’s apparent “blanket policy of requiring employees who needed reassignment as a reasonable accommodation to compete for vacant positions,” and found that TriCore’s objections “ignore[d] the Commission’s power to investigate potential discrimination uncovered during the Commission’s reasonable investigation” of Guadiana’s charge.  R.3; AA.79.  In addition, the Commission found that the EEOC’s request for information was relevant to determine whether TriCore discriminated against Guadiana because of her pregnancy, in accordance with the proof guidelines set out in Young v. United Parcel Services, 575 U.S. ---, 135 S. Ct. 1338, 1354 (2015), which allow for the comparison of pregnant employees to similarly situated non-pregnant ones.  R.3; AA.74-75.  Finally, the Commission concluded that TriCore had not met its burden of proving the subpoena was unduly burdensome.  R.3; AA.76-77.  The determination distinguished Burlington Northern on the grounds that the subpoena to TriCore was much more narrowly drawn: it involved operations almost entirely within a single state and sought information only about the employees who might have been affected by the same company policies and practices that Guadiana’s charge implicated.  R.3; AA.72-74. 

C.         District Court’s Decision

Despite the Commission’s determination that the subpoena sought relevant information and its scope was reasonable, TriCore informed the EEOC that it would not comply.  R.3; AA.80.  The EEOC therefore filed its subpoena enforcement action in the District of New Mexico.  R.1; AA.4-6.  After a hearing on the Commission’s application during which the court stated the case presented “a close call,” R.14; AA.152, the court denied the application in an order dated February 8, 2016.  R.12; AA.95-108.  The court ignored the portion of the EEOC’s request for information relating to TriCore’s apparent policy of not reassigning qualified disabled employees to vacant positions and instead focused almost entirely on the requested information relating to pregnant employees.  The court concluded that information about other pregnant employees seeking accommodation was not relevant to Guadiana’s claims.  R.12; AA.102-07.  In so doing, it agreed with TriCore’s assertion that, because Guadiana suffered from both rheumatoid arthritis and pregnancy-related difficulties, no information about pregnant employees could possibly offer comparative evidence relevant to her claims.  R.12; AA.105 n.9.  The Court also held that the EEOC had not provided a sufficient justification for expanding its investigation to determine whether TriCore discriminated against pregnant employees on a company-wide basis.  R.12; AA.108.  Because the EEOC was asking for “information that has no relevance to the individual charge, hoping to cast a wider net in the future,” the court determined that it had exceeded the scope of its subpoena authority.[2]  R.12; AA.106.  The court based its decision in part on its concern that enforcing the subpoena would encourage the EEOC to seek “broad categories of what may be considered sensitive information on other employees” in the future.  R.12; AA.107. 

STANDARD OF REVIEW

This Court reviews district court rulings on EEOC subpoenas for an abuse of discretion.  Burlington N., 669 F.3d at 1156; EEOC v. Dillon Cos., 310 F.3d 1271, 1274 (10th Cir. 2002).  This standard, “while forgiving, is not without teeth.”  Vallario v. Vandehey, 554 F.3d 1259, 1264 (10th Cir. 2009).  An abuse of discretion occurs when a court’s decision relies “on either a clearly erroneous finding of fact or an erroneous conclusion of law, or when its ruling manifests a clear error of judgment.”  Id.

SUMMARY OF ARGUMENT

In performing its statutory duty to investigate charges of discrimination, the EEOC has broad authority to access any information that might cast light on the allegations in the charge.  The EEOC is also entitled to explore additional violations revealed during the course of a reasonable investigation.  Based on this statutory authority, the EEOC subpoenaed: (1) information relating to the apparently illegal way TriCore responded to accommodation requests, which TriCore admitted during the course of the EEOC’s investigation; and (2) information allowing it to compare Guadiana with similarly situated employees to determine the validity of her discrimination claims.  Although access to this information falls clearly within the EEOC’s statutory authority, the district court nevertheless refused to enforce the subpoena.  This refusal constitutes an abuse of discretion and warrants reversal.

ARGUMENT

I.      The Materials the Commission Seeks are Relevant to Its Reasonable Investigation of Guadiana’s Charge.

The statutory language of Title VII of the Civil Rights Act of 1964 entitles the EEOC to “any evidence of any person being investigated or proceeded against that relates to unlawful employment practices covered by this [title] and is relevant to the charge under investigation.”  42 U.S.C. § 2000e-8(a).  The same authority extends to charges under the ADA.  EEOC v. Waffle House, Inc., 534 U.S. 279, 285 (2002) (citing 42 U.S.C. § 12117(a)).  Although this relevance requirement should not be interpreted so broadly as to render it a nullity, EEOC v. Shell Oil Co., 466 U.S. 54, 69 (1984); Burlington N., 669 F.3d at 1157, the Supreme Court has explained that the limitations the requirement imposes are “not especially constraining”; the Commission is entitled to “virtually any material that might cast light on the allegations against the employer.”  Shell Oil, 466 U.S. at 68-69.

When an employer refuses to comply voluntarily with a request for information, the EEOC may issue an administrative subpoena and bring an enforcement action to compel the employer to produce the requested material.  42 U.S.C. § 2000e-9 (incorporating procedures detailed in 29 U.S.C. § 161); Univ. of Pa. v. EEOC, 493 U.S. 182, 191 (1990).  To enforce an administrative subpoena, the EEOC need show only that the subpoena is within the agency’s authority, its demand is sufficiently definite, and the information sought is relevant to the investigation.  Id.  Court review in these proceedings should be limited, Dillon Cos., 310 F.3d at 1277, and courts should enforce investigative subpoenas “unless they are plainly incompetent or irrelevant to any lawful purpose.”  Id. at 1275 (internal citations omitted).

As explained below, the EEOC’s subpoena asked for two limited categories of information that were directly relevant to its investigation.  The district court’s ruling ignored the first request and erroneously applied Burlington Northern to find that the second was not sufficiently related to Guadiana’s charge.  In both respects the court committed reversible error.

A.  The First Subpoena Request is a Reasonable Means of Investigating TriCore’s Admitted Violation of the ADA.

In its order refusing to enforce the subpoena, the district court did not specifically address the subpoena’s first request, which demanded information relating to accommodations TriCore provided – or did not provide – to other disabled employees.  The court’s refusal to enforce this part of the subpoena violates numerous precedents from the Supreme Court, the Tenth Circuit and elsewhere holding that the Commission has the authority to pursue violations uncovered during a reasonable investigation.  To this extent, the order is an abuse of discretion.

The EEOC is not required to turn a blind eye to additional legal violations it discovers during the course of a reasonable investigation.  Rather, the scope of the Commission’s investigatory authority extends beyond the initial claim to any such additional claims of discrimination that emerge.  Burlington N., 669 F.3d at 1159 (noting that if the EEOC “ascertains some violation warranting a broader investigation” in the course of investigating a charge, it may “expand[] its search”); EEOC v. Cambridge Tile Mfg. Co., 590 F.2d 205, 206 (6th Cir. 1979) (concluding that the EEOC has the power to investigate “a broader picture of discrimination which unfolds in the course of a reasonable investigation of a specific charge”); cf. Gen. Tel. Co. of the NW, Inc. v. EEOC, 446 U.S. 318, 331 (1980) (“EEOC enforcement actions are not limited to the claims presented by the charging parties.  Any violations that the EEOC ascertains in the course of a reasonable investigation of the charging party’s complaint are actionable.”).  In pursuing this information, the Commission need not present a “specific reason for disclosure” of the requested information beyond a general showing of relevance.  Univ. of Pa., 493 U.S. at 194.

In its initial position statement responding to Guadiana’s charge, TriCore divulged its apparent practice of violating the ADA in its treatment of accommodation requests.  TriCore admitted in this statement that its response to Guadiana’s two reasonable accommodation requests was to tell her she could apply for open positions within the company and inform her she would be considered for such positions no differently than any other applicant.  R.3; AA.31 (TriCore Position Statement at 4) (noting that in response to Guadiana’s first accommodation request TriCore’s daytime supervisor “agreed … to interview both Ms. Guadiana and other candidates for two day shift positions, and select the most qualified candidate”); R.3; AA.32 (TriCore Position Statement at 5) (stating that Guadiana “would be permitted to apply for another position within TriCore for which she was qualified and whose essential functions she could perform”); R.3; AA.33 (TriCore Position Statement at 6) (“[I]t was made clear to Ms. Guadiana that there were a variety of open positions available, and she needed to apply for whichever position met her needs.”).  TriCore’s counsel further admitted during the hearing that Guadiana was required to apply for open positions and conceded, “If that was wrong, then she has a claim based on that.”  R.14; AA.127 (Hearing Trans. at 18).  Guadiana’s supervisors, working in conjunction with two members of its human resources department, made at least the first and probably also the second of these accommodation decisions after extensive internal discussions.[3]  It is therefore reasonable to conclude that these decisions likely reflected TriCore’s general policy and/or practice when responding to accommodation requests under the ADA.

A blanket policy or practice that merely allows qualified employees to compete for open positions on the same footing with other applicants violates the ADA.  Barring a showing of undue hardship, employers are required to reassign qualified employees to vacant positions when the reassignment would be a reasonable accommodation; merely permitting such employees to apply for these vacancies does not satisfy the employer’s obligations under the statute.  See 42 U.S.C. § 12111(9)(b) (stating that a reasonable accommodation may include “reassignment to a vacant position”); Smith v. Midland Brake, Inc., 180 F.3d 1154, 1164 (10th Cir. 1999) (en banc) (“An employee who on his own initiative applies for and obtains a job elsewhere in the enterprise would not be described as having been ‘reassigned’; the core word ‘assign’ implies some active effort on the part of the employer.” (internal citation omitted)); EEOC v. United Airlines, Inc., 693 F.3d 760, 764 (7th Cir. 2012) (holding that a qualified employee must be reassigned to a vacant position even when a more qualified candidate is available, absent a showing of undue hardship); Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1304 (D.C. Cir. 1998) (en banc) (“To begin with the statutory text, the word ‘reassign’ must mean more than allowing an employee to apply for a job on the same basis as anyone else.”); see generally U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 397 (2002) (“By definition any special ‘accommodation’ requires the employer to treat an employee with a disability differently, i.e., preferentially.”).  Thus, in claiming that it twice offered Guadiana the “accommodation” of being allowed to apply for open positions on equal footing with other employees, TriCore admitted that it may have violated the ADA.

Based on TriCore’s admission, the EEOC sought to determine the extent and frequency of such violations.  To this end, it provided notice to TriCore of the investigation’s extended scope and propounded its request asking for information about all TriCore employees who had requested a disability accommodation since the beginning of 2012.  This information would allow the EEOC to speak with other employees who had sought a disability-related accommodation and determine how TriCore responded to these requests.  As noted above, the Commission has the authority to investigate any claims of discrimination revealed during the course of a reasonable investigation.  Gen. Tel. Co., 446 U.S. at 331; Burlington N., 669 F.3d at 1159; EEOC v. McLane Co., 804 F.3d 1051, 1055 (9th Cir. 2015) (“If new facts come to light during an investigation, the EEOC may expand its scope beyond the practices specified in the original charge.”); Cambridge Tile Mfg. Co., 590 F.2d at 206 (“[W]e decline to hold that the EEOC is powerless to investigate a broader picture of discrimination which unfolds in the course of a reasonable investigation of a specific charge.”); EEOC v. Gen. Elec. Co., 532 F.2d 359, 364-66 (4th Cir. 1976).  Seeking this information fully accords with the statutory scheme allowing the Commission to investigate potential violations of the ADA. 

This Court has held that a private claim against an employer, standing alone, does not warrant a general “pattern or practice investigation” unless additional information exists to “transcend the gap” between the charge and a broader inquiry.  Burlington N., 669 F.3d at 1158.  Here, however, TriCore’s own admission regarding its response to requests for reasonable accommodation – a response that likely violates the ADA – serves to transcend that gap.  TriCore admitted that it twice responded to Guadiana in a way that did not comply with ADA requirements, and did so after extensive consultation between its managers and its human resources department.  When presented with such clear evidence of a violation, the EEOC had the statutory authority to pursue the investigation further.  The court’s refusal to enforce the subpoena as to the EEOC’s first request – indeed, its failure even to mention this request in its analysis – constitutes reversible legal error.

B.   The Second Subpoena Request Seeks Information that is Clearly Relevant to Guadiana’s Charge.

The second subpoena request sought information about the treatment of comparable employees in order to assess Guadiana’s claims of disability and pregnancy discrimination.  In refusing to enforce the EEOC’s second request for information, however, the district court concluded that the request “ha[d] no relevance to the individual charge” and was intended solely to allow the EEOC “to cast a wider net in the future.”  This interpretation imposes a drastically cramped view of relevance under the statute, and cannot be justified under the applicable cases interpreting the scope of the EEOC’s investigative powers.  For this additional reason, the district court ruling constitutes an abuse of discretion.

As noted above, Title VII and the ADA give the EEOC the authority to access any employer evidence that is relevant to a charge under investigation.  42 U.S.C. § 2000e-8(a).  The Supreme Court has interpreted this language to entitle the EEOC to “virtually any material that might cast light on the allegations against the employer.”  Shell Oil, 466 U.S. at 68-69.  In applying this provision, courts generally defer to the EEOC’s determination of what information is relevant to a given charge and enforce subpoenas “unless they are plainly incompetent or irrelevant to any lawful purpose.”  Dillon Cos., 310 F.3d at 1275; see also EEOC v. Randstad, 685 F.3d 433, 451 (4th Cir. 2012) (holding that a court will defer to an EEOC relevance determination “so long as it is not obviously wrong”). 

Importantly, relevance in this context does not turn on the ultimate viability of the charge.  The district court is not permitted to “determine whether the charge of discrimination is ‘well founded’ or ‘verifiable’” before deciding whether to enforce an EEOC subpoena; indeed, any attempt to do so amounts to reversible error.  Shell Oil, 466 U.S. at 72 n.26.  Instead, with respect to the underlying charge, the only question is whether the charge is “valid.”  So long as a charge meets the statutory and regulatory requirements – that it is “in writing, under oath or affirmation,” and “identifies the parties and generally describes the action or practices the claimant challenges” – the charge is valid for the purposes of enforcing an administrative subpoena.  EEOC v. Schwan’s Home Serv., 644 F.3d 742, 746 (8th Cir. 2011) (citing 42 U.S.C. § 2000e-5(b) and 29 C.F.R. §§ 1601.12(a)(3) and (b)).  Whether the charging party will ultimately be able to prove her charge has no bearing on whether the charge is valid.  Id. at 747 (“[A] charge is valid regardless of the strength of its evidentiary foundation.”); EEOC v. Maritime Autowash, Inc., No. 15-1947, --- F.3d ---, 2016 WL 1622290, at *5 (4th Cir. 2016) (“The EEOC’s authority to investigate is not negated simply because the party under investigation may have a valid defense to a later suit.” (internal citations omitted)).

Guadiana asserted in her EEOC charge that TriCore discriminated against her based on her disability and her pregnancy.  In its position statement, TriCore stated that it had offered her a thirty-day leave of absence to find an alternative position, after which it terminated her employment.  Based on this behavior, the EEOC sought to discover whether TriCore systematically treated pregnant employees less favorably than non-pregnant employees who were “similar in their ability or inability to work,” in accordance with Young’s standard for proving pregnancy discrimination.  Young, 135 S. Ct. at 1354.  To this end, the Commission asked for a list dating back to January 1, 2012, of all employees who were pregnant while employed by TriCore, whether they had requested any accommodation, and whether TriCore granted the request.

Based on the specifics of Guadiana’s charge, this approach is entirely reasonable.  To determine whether TriCore discriminated against Guadiana based on her rheumatoid arthritis or her pregnancy, the EEOC must determine how she was treated compared to both similarly situated pregnant employees without a disability and similarly disabled non-pregnant employees.  Only by obtaining information about the set of potential comparators in both groups could the EEOC determine whether TriCore had subjected Guadiana to one or both types of discrimination.  Perhaps she was treated worse than other pregnant employees seeking an alternative position.  Perhaps she and other pregnant employees were all treated worse than non-pregnant employees seeking the same type of accommodation.  Perhaps no discrimination of either type occurred.  The only way for the EEOC to know definitively in order to evaluate the merits of Guadiana’s claim is to compare how TriCore responded to Guadiana with the company’s treatment of other comparable employees.  See, e.g., EEOC v. Kronos Inc., 620 F.3d 287, 298 (3d Cir. 2010) (“The EEOC is entitled to information that may provide a useful context for evaluating employment practices under investigation, in particular when such information constitutes comparison data.” (internal citation omitted)).

The district court flatly rejected the value of comparator evidence, stating it could not understand “how information on other pregnant employees who have sought accommodation at TriCore is relevant to Ms. Guadiana’s own claims of discrimination. . . . [T]he broad scope of information the EEOC seeks with regard to other employees who were pregnant is not relevant to whether there was discriminatory intent directed at Ms. Guadiana based on her pregnancy or disability.”[4] (Dist. Ct. Op. at 8-9.)  Elsewhere, the court concluded that “the identification about other pregnant and/or disabled TriCore employees has little use in the investigation of Ms. Guadiana’s individual discrimination claim.” (Id. at 11.)  But decades of precedents confirm that this type of comparator evidence is precisely the sort of information to which the EEOC is entitled when investigating an individual’s charge of discrimination.  The Supreme Court explained in Shell Oil that comparator evidence is essential to determining the validity of an individual charge: the EEOC “rarely can identify any single instance of discrimination until the Commission has gained access to the employer’s personnel records.”  Shell Oil, 466 U.S. at 71; see also McLane, 804 F.3d at 1058 (“[O]ther employees’ experiences might cast light on the allegations against [the employer], whether by substantiating them or showing them to be unfounded.”); Blue Bell Boots, Inc. v. EEOC, 418 F.2d 355, 358 (6th Cir. 1969) (noting that other employees’ experiences may help the EEOC determine the motivation for the treatment of the charging party); Shell Oil, 466 U.S. at 68-69 & n.20 (citing Blue Bell Boots for the proposition that the EEOC is entitled to “virtually any material that might cast light on the allegations against the employer”).  The EEOC was not required to have additional information proving that such discrimination had taken place before pursuing this inquiry; the information sought was intended to allow the EEOC to make this determination in the first instance, as required under Title VII.  See 42 U.S.C. § 2000e-5(b).

In rejecting the relevance of comparator evidence the district court opinion went further, concluding, “[E]ven if there were other pregnant employees who were purportedly denied unpaid leave because of their pregnancy, they would not be similarly situated to Ms. Guadiana, whose restrictions related to walking and standing were because of her rheumatoid arthritis, but whose other restrictions were due to her pregnancy.” (Dist. Ct. Op. at 11 n.9)  Under this standard, any information relating to discrimination against pregnant employees would not be relevant to Guadiana’s charge because she also had rheumatoid arthritis, and any information relating to the treatment of other disabled employees would not be relevant to her charge because she was also pregnant.  Such a draconian restriction on potential avenues to investigate Guadiana’s claims is not remotely justified, let alone compelled, by the applicable relevance standard.  Courts do not require that comparators must be identical in all respects to the charging party before their experiences may provide relevant contextual evidence.  Indeed, the Supreme Court has held precisely the opposite.  See Young, 135 S. Ct. at 1354 (holding that a showing of disparate treatment does not “require the plaintiff to show that those whom the employer favored and those whom the employer disfavored were similar in all but the protected ways”).  The district court’s interpretation is squarely at odds with the Supreme Court’s admonition that the EEOC may access “virtually any material” so long as it “might cast light” on the charging party’s allegations.  Shell Oil, 466 U.S. at 68-69. 

The district court also denied the subpoena in part based on its reading of this Court’s holding in Burlington Northern.  Burlington Northern involved an EEOC subpoena that sought nationwide information about a company’s method of keeping track of its current and former employees between 2006 and early 2009 based on two charges of disability discrimination in Colorado.  The subpoena at issue in this case differs significantly from the one in Burlington Northern and falls squarely within the limits delineated in that decision. 

First, in Burlington Northern this Court concluded that the subpoena at issue was not sufficiently relevant to the charges under investigation because “[t]he demand for data on a nation-wide basis with two individual claims involving only applicants in Colorado is excessive.”  Burlington N., 669 F.3d at 1156.  Here, as explained above, the information subpoenaed is directly relevant to Guadiana’s charge because it seeks comparator evidence necessary to evaluate Guadiana’s claims.  The Burlington Northern court was also troubled that the EEOC relied on four similar charges (brought by other charging parties) in deciding to expand the scope of its investigation without providing these other charges to the court and without specifically identifying these charges or any other justification for the expansion to the employer.  Id. at 1157.  In this case, in contrast, the EEOC relied entirely on TriCore’s admissions and Guadiana’s charge in seeking the subpoenaed information.  The EEOC identified these reasons, as well as the section of its Compliance Manual outlining its authority to expand the investigation, in its letter to TriCore accompanying its request for information. (Newton Decl. Att. 5)

Finally, the scope of the subpoena here is far more limited than the one at issue in Burlington Northern.  Although this Court objected to the subpoena’s geographic and substantive scope in Burlington Northern, it allowed that a more restrictive subpoena, or a similar subpoena involving a different type of discrimination, might be valid.  With respect to geographic breadth, the Court held that the EEOC’s request for nationwide data was impermissible given that the two relevant charging parties applied for jobs in Colorado, but noted, “[p]erhaps the EEOC would have been entitled to information relating to other positions and offices in Colorado.”  Burlington N., 669 F.3d at 1158 (citing EEOC v. Konica Minolta Bus. Solutions U.S.A., Inc., 639 F.3d 366, 368-69 (7th Cir. 2011)).  In this case the EEOC’s subpoena was sufficiently geographically targeted.  TriCore’s operations are predominantly if not exclusively located in New Mexico,[5] so the EEOC’s request did not extend far (if at all) beyond the state lines made relevant by Guadiana’s charge.  With respect to the subpoena’s substantive scope, the Burlington Northern court held that two disability discrimination charges did not justify the broad subpoena at issue but explained that charges of race discrimination would support such an expanded investigation because “racial discrimination is by definition class discrimination.”[6]  Id. (internal citation omitted).  Guadiana’s charge was premised in part on her allegation of pregnancy discrimination.  Pregnancy discrimination is a form of sex discrimination, and sex discrimination, like race discrimination, is a form of class discrimination by definition.  42 U.S.C. § 2000e(k); see Konica Minolta, 639 F.3d at 369 (“[I]nformation concerning whether an employer discriminated against other members of the same class for the purposes of hiring or job classification may cast light on whether an individual person suffered discrimination.”).  Thus, none of the concerns leading this Court to invalidate the subpoena in Burlington Northern are present here.

The district court also relied on EEOC v. Royal Caribbean Cruises, Ltd., 771 F.3d 757 (11th Cir. 2014), based on its erroneous conclusion that “the basis for the EEOC’s purpose in that case mirrors what appears to be the EEOC’s purpose here.”  (Dist. Ct. Op. at 12).  To the contrary, the subpoena at issue in that case differs dramatically from the TriCore subpoena.  The charging party in Royal Caribbean, an Argentinian national, alleged disability discrimination based on his HIV-positive status after the company did not renew his employment contract.  771 F.3d at 759.  As part of its investigation the EEOC sought information about all employees – from anywhere in the world – who the company had discharged or refused to rehire for medical reasons (as well as applicants who were not hired in the first instance due to a medical reason) during a specified time period.  Id. at 759-60.  The employer complied with respect to its employees who were American citizens but refused to do so for those who were citizens of other countries; the EEOC sought to enforce the subpoena as to the non-U.S. citizens.  Id. at 760.  The Eleventh Circuit found that the requested information – relating to “employees and applicants from around the world suffering from any medical condition” – did not bear sufficiently on the charging party’s claim.  Id. at 761-62.[7]  The court also expressed concern that additional compliance with the subpoena would require five to seven employees working full-time for two months.  Id. at 762.  Finally, the court noted the EEOC might lack jurisdiction to investigate the claims of foreign nationals employed on foreign ships.  Id. 

Here, as explained above, the scope of the subpoena is much narrower and is restricted, both geographically and substantively, to Guadiana’s claims.  Indeed, given the subpoena’s limited nature, TriCore never argued to the district court that the subpoena posed an undue burden.[8]  Nor does the EEOC’s investigation raise any jurisdictional issues.  Further, unlike the employer in Royal Caribbean, TriCore never attempted to provide any of the requested comparator or contextual information before unilaterally determining it did not have to do so.  Royal Caribbean therefore has no bearing on the outcome of this dispute.  See EEOC v. Trinity Health Corp., 107 F. Supp. 3d 934, 938 (N.D. Ind. 2015) (distinguishing Royal Caribbean because it involved a much larger administrative burden and a “significant jurisdictional issue” not present in the case before the court).

TriCore devoted much of its briefing before the Commission and the district court to its argument about the merits of Guadiana’s substantive claims, but at the subpoena enforcement stage such arguments are irrelevant.  The only concern is whether the subpoena is valid, not whether the claimant’s ultimate charges will be borne out.  Indeed, the statute makes clear that the EEOC is to determine, after investigation, whether there is reasonable cause to believe the charge is true.  42 U.S.C. § 2000e-5(b).  Merits arguments at this point are therefore entirely premature.  See Dillon Cos., 310 F.3d at 1277 (“We will not . . . either encourage or allow an employer to turn a summary subpoena-enforcement proceeding into a mini-trial by allowing it to interpose defenses that are more properly addressed at trial.”); EEOC v. Univ. of N.M., 504 F.2d 1296, 1303 (10th Cir. 1974) (holding that an administrative subpoena “is enforceable even though no ‘probable cause’ has been shown”); McLane, 804 F.3d at 1057-58 (“[T]he Supreme Court has made plain that courts may not condition enforcement of EEOC administrative subpoenas on a threshold evidentiary showing that the allegations under investigation have merit.”).

In sum, the requested information bears directly on Guadiana’s charges against TriCore and will assist the EEOC in carrying out its statutorily mandated duty of determining the validity of Guadiana’s claims.  Neither Burlington Northern nor Royal Caribbean suggests a different result.  In coming to the opposite conclusion, the district court committed reversible error.

II.   Privacy Concerns are Not a Valid Reason to Avoid Compliance with an Administrative Subpoena.

During oral argument the district court posed a number of questions about the privacy implications of providing the subpoenaed information. (Trans. 5-7, 40-41.)  In its opinion, the court noted its concern that subpoenas like the one at issue would allow the Commission access to “what may be considered sensitive information on other employees.” (Dist. Ct. Op. at 13)  To the extent the court’s decision turned in part on these privacy concerns, the opinion must be reversed.

Privacy concerns provide no legal basis to deny enforcement of an administrative subpoena.  As the Supreme Court explained in University of Pennsylvania, Congress already took such confidentiality concerns into account when devising Title VII’s statutory scheme.  It ultimately struck a balance between the EEOC’s need to investigate and third parties’ need for privacy by allowing the EEOC access to confidential records while criminalizing the public disclosure of such information.  Univ. of Pa., 493 U.S. at 192-93 (discussing 42 U.S.C. § 2000e-8(e)).  Under the statutory framework that Congress constructed, the EEOC is entitled to obtain this sensitive information but, once it does so, its personnel have the duty to protect it.  Failure to comply with that duty may result in up to a year of imprisonment and a fine of up to $1,000.  42 U.S.C. § 2000e-8(e).  The district court may not agree with the balance Congress ultimately struck, but that is a determination for the legislative branch, not the judiciary.  “[D]issatisfaction with that balance does not entitle [an employer] to withhold information relevant to a charge of discrimination.”  McLane Co., 804 F.3d at 1058. 

In McLane, the Ninth Circuit recently addressed a similar EEOC subpoena for employee information, including those employees’ names, social security numbers, last known addresses and telephone numbers.  Id. at 1054.  By speaking with those employees the Commission hoped to assess the charging party’s claim that her employer discriminatorily applied a strength test when she sought to return from maternity leave.  The court explained that contact with comparator employees who had also taken the strength test was relevant because it would “cast light on the allegations against [the employer], whether by substantiating them or showing them to be unfounded.”  Id. at 1058.  The requested identifying information, including social security numbers, was unquestionably private.  Even so, because that information was relevant to the investigation, the court held that the EEOC was entitled to obtain it.  Id.

In short, to the extent the district court’s concerns about the privacy of other TriCore employees animated its decision to refuse to enforce the subpoena, such a decision was unjustified.  As University of Pennsylvania and McLane explain clearly, such privacy concerns do not justify TriCore’s refusal to comply with the EEOC’s valid administrative subpoena.

CONCLUSION

For the foregoing reasons, the judgment of the district court should be reversed and the case remanded for further proceedings.

Respectfully submitted,

 

P. DAVID LOPEZ

General Counsel

 

JENNIFER S. GOLDSTEIN

Associate General Counsel

 

MARGO PAVE

Assistant General Counsel

 

s/Jeremy D. Horowitz

JEREMY D. HOROWITZ

Attorney

U.S. Equal Employment

  Opportunity Commission

Office of General Counsel

131 M St. N.E., Room 5SW24J

Washington, D.C.  20507

(202) 663-4716

jeremy.horowitz@eeoc.gov

STATEMENT REGARDING ORAL ARGUMENT

          The Commission believes oral argument would materially assist this Court in resolving the issues presented in this appeal.  See Fed. R. App. P. 34(a)(1); 10th Cir. R. 28.2(C)(4).

Respectfully submitted,

 

P. DAVID LOPEZ

General Counsel

 

JENNIFER S. GOLDSTEIN

Associate General Counsel

 

MARGO PAVE

Assistant General Counsel

 

s/Jeremy D. Horowitz

JEREMY D. HOROWITZ

Attorney

U.S. Equal Employment

  Opportunity Commission

Office of General Counsel

131 M St. N.E., Room 5SW24J

Washington, D.C.  20507

(202) 663-4716

jeremy.horowitz@eeoc.gov

 

 

CERTIFICATE OF COMPLIANCE

I hereby certify that this brief complies with the type-volume requirements set forth in Federal Rules of Appellate Procedure Rule 32(a)(7)(B).  This brief contains 7,313 words, from the Statement of Related Appeals through the Conclusion, as determined by the Microsoft Word 2010 word processing program, with 14-point proportionally spaced type for text and footnotes.

s/Jeremy D. Horowitz

JEREMY D. HOROWITZ

Attorney

U.S. Equal Employment

  Opportunity Commission

Office of General Counsel

131 M St. N.E., Room 5SW24J

Washington, D.C.  20507

(202) 663-4716

jeremy.horowitz@eeoc.gov

 

Dated: June 20, 2016

 

 

ELECTRONIC FILING CERTIFICATE

I certify that:

All required privacy redactions have been made;

The hard copies of this brief submitted to the Clerk’s office are exact copies of the ECF filing; and

The ECF submission was scanned for viruses with Trend Micro OfficeScan, most recently on June 20, 2016.  According to the program, this submission is free of viruses.

s/Jeremy D. Horowitz

JEREMY D. HOROWITZ

Attorney

U.S. Equal Employment

  Opportunity Commission

Office of General Counsel

131 M St. N.E., Room 5SW24J

Washington, D.C.  20507

(202) 663-4716

jeremy.horowitz@eeoc.gov

 

Dated: June 20, 2016

CERTIFICATE OF SERVICE

I, Jeremy D. Horowitz, hereby certify that I electronically filed the foregoing brief with the Court via this Court’s appellate Case Management/Electronic Case Filing (CM/ECF) System this 20th day of June, 2016.  Seven copies of the foregoing brief will be sent to the Court for receipt within two business days, postage pre-paid.  I also certify that the following counsel of record, who has consented to electronic service, will be served the foregoing brief via the appellate CM/ECF system:

Counsel for Defendant/Appellee:

Geoffrey D. Rieder

Foster, Rieder & Jackson, P.C.

201 Third St., NW, #1500

Albuquerque, NM  87103

(505) 767-0577

Geoff@frjlaw.com

 

s/Jeremy D. Horowitz

JEREMY D. HOROWITZ

Attorney

U.S. Equal Employment

  Opportunity Commission

Office of General Counsel

131 M St. N.E., Room 5SW24J

Washington, D.C.  20507

(202) 663-4716

jeremy.horowitz@eeoc.gov