TABLE OF AUTHORITIES............................................................................. ii

INTRODUCTION............................................................................................. 1

I. The EEOC Did Not Waive Its Argument on Appeal Concerning the Comparative Value of Information About Other Disabled Employees. 2

II. The EEOC Did Not Waive Its Argument, in the District Court or on Appeal, Concerning the Comparative Relevance of Information About Other Pregnant Employees.................................................................... 12

CONCLUSION............................................................................................... 14

CERTIFICATE OF COMPLIANCE............................................................... 16

ELECTRONIC FILING CERTIFICATE......................................................... 17

Table of Authorities

Page(s)

Cases

Alameda Films SA de CV v. Authors Rights Restoration Corp.,

.... 331 F.3d 472 (5th Cir. 2003)..................................................................... 11

Allstate Insurance Co. v. Swann,

.... 27 F.3d 1539 (11th Cir. 1994)..................................................................... 8

Brown v. Nucor Corp.,

.... 785 F.3d 895 (4th Cir. 2015)................................................................. 9, 10

Dubbs v. Head Start, Inc.,

.... 336 F.3d 1194 (10th Cir. 2003)................................................................... 2

EEOC v. Shell Oil Co.,

.... 466 U.S. 54 (1984)................................................................................. 6, 13

Federal Savings & Loan Insurance Corp. v. Haralson,

.... 813 F.2d 370 (11th Cir. 1987)................................................................... 10

Holmes v. Colorado Coalition for Homeless Long Term Disability Plan,

.... 762 F.3d 1195 (10th Cir. 2014)................................................................... 9

In re Ogden,

.... 314 F.3d 1190 (10th Cir. 2002)................................................................... 3

McLane Co. v. EEOC,

.... No. 15-1248, 581 U.S. ---, 2017 WL 1199454 (Apr. 3, 2017)............... 6, 13

Mondragon v. Thompson,

.... 519 F.3d 1078 (10th Cir. 2008)................................................................. 10

Murrell v. Shalala,

.... 43 F.3d 1388 (10th Cir. 1994)................................................................... 10

Osborne v. Baxter Healthcare Corp.,

.... 798 F.3d 1260 (10th Cir. 2015)................................................................... 6

Sadeghi v. INS,

.... 40 F.3d 1139 (10th Cir. 1994)................................................................... 14

Silverton Snowmobile Club v. United States Forest Service,

.... 433 F.3d 772 (10th Cir. 2006)................................................................... 10

Smith v. Midland Brake, Inc.,

.... 180 F.3d 1154 (10th Cir. 1999) (en banc).................................................... 7

United States v. Brown,

.... 348 F.3d 1200 (10th Cir. 2003)................................................................. 14

United States v. Goforth,

.... 465 F.3d 730 (6th Cir. 2006)....................................................................... 9

Utahns for Better Transportation v. United States Department of Transportation,

.... 305 F.3d 1152 (10th Cir. 2002)................................................................... 3

Young v. United Parcel Services,

.... 135 S. Ct. 1338 (2015)................................................................................. 9

Rules and Regulations

Federal Rule of Appellate Procedure 28(a)(5)................................................... 3

Tenth Circuit Rule 40.1(A)............................................................................... 1

Other Authorities

21 James Wm. Moore et al., Moore’s Federal Practice § 328.20[8] (3d ed. 2016)..................................................................................................................... 2

INTRODUCTION

Petitions for panel rehearing in this Circuit are appropriate when “a significant issue has been overlooked or misconstrued by the court.” Tenth Cir. R. 40.1(A). Respectfully, the EEOC believes such judicial oversight occurred in the panel’s opinion in this case.

This case involves a charge of disability and pregnancy discrimination and an EEOC subpoena for information regarding other TriCore employees who were disabled and/or pregnant. This panel acknowledged the potential relevancy of such information, slip op. at 20 & n.14, but held that the EEOC waived its arguments regarding the relevancy of information about other disabled employees through its failure to raise the issue in its opening brief on appeal, and waived its specific arguments about the relevancy of the subpoenaed information about other pregnant employees by failing to present them to the district court. To the contrary, however, a closer review of the briefs in this case and the Tenth Circuit standards regarding waiver shows that these issues were, in fact, fully briefed. Because this panel’s decision not to squarely address the merits of these potentially determinative Commission arguments affects not merely this case, but also the EEOC’s ability to effectively investigate future charges, this is the rare case in which panel rehearing is warranted.

I. The EEOC Did Not Waive Its Argument on Appeal Concerning the Comparative Value of Information About Other Disabled Employees.

This panel held that the EEOC waived any argument about the comparative relevance of information about other disabled TriCore employees because it “limited its comparator-evidence argument to the pregnancy request” in its opening brief. Slip op. at 18; id. at 18 n.13 (referring to the EEOC’s “self-imposed limitation” in this regard). This panel acknowledged that the EEOC addressed this issue several times in that opening brief, but dismissed these instances as “passing references” that did not preserve the issue. Id. at 18 n.12. Respectfully, this conclusion overlooks or misconstrues the contents of the EEOC’s opening brief and misapplies governing Tenth Circuit law regarding waiver. Under the relevant standards, the EEOC fully and adequately presented the issue in its opening brief, then reiterated its arguments in its reply brief and during oral argument. This Court should rule on the substance of the EEOC’s argument about the value of comparator evidence regarding other disabled individuals and reverse the district court’s refusal to enforce the EEOC’s subpoena of this information.

“As a general rule, briefs are read liberally with respect to determining what issues are raised on appeal.” 21 James Wm. Moore et al., Moore’s Fed. Practice § 328.20[8], at 328-15 (3d ed. 2016). In the Tenth Circuit, an argument is not waived so long as it is raised in the appellant’s opening brief and adequately briefed. Dubbs v. Head Start, Inc., 336 F.3d 1194, 1204 n.5 (10th Cir. 2003). “Adequately briefed” in this context means that the party directly pressed the argument, rather than simply suggesting it indirectly or including it in a list. Utahns for Better Transp. v. U.S. Dep’t of Transp., 305 F.3d 1152, 1175 (10th Cir. 2002). In applying this rule, the court must be careful not to “sacrific[e] substantive justice on the altar of administrative convenience.” In re Ogden, 314 F.3d 1190, 1197 n.4 (10th Cir. 2002) (internal citation omitted).

The first of the “passing references” mentioned in this panel’s opinion, slip op. at 18 n.12, occurred in the “Statement of the Issues” section of the Commission’s Opening Brief in which the Commission delineated the key issues to be decided on appeal. See Fed. R. App. P. 28(a)(5) (requiring “a statement of the issues presented for review” in the appellant’s opening brief on appeal). The EEOC identified the second of these two issues as follows: “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 Supreme Court and Tenth Circuit relevancy standards. Opening Br. at 2 (emphasis added). This is not a mere “passing reference.” It is, instead, a direct statement of the EEOC’s position on appeal that information about other disabled employees is relevant to assessing Guadiana’s charges of discrimination because of its clear comparative value. This is thus one of the two issues the EEOC asked this Court to resolve on the merits.

Discussing the relevance of comparator evidence in the body of its opening brief, the EEOC explained that it “sought information about the treatment of comparable employees in order to assess Guadiana’s claims of disability and pregnancy discrimination.” Id. at 18 (emphasis added). The EEOC noted the authority for its request came from the Americans with Disabilities Act as well as Title VII. Id. The Commission then explained,

[T]he EEOC must determine how [Guadiana] 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.

EEOC Opening Br. at 20-21 (emphasis added). The Commission reiterated this argument in its reply. It noted that the EEOC subpoenaed “comparative evidence about similarly situated pregnant employees without a disability and similarly disabled non-pregnant employees,” and explained that this comparative information regarding both disabled employees and pregnant employees

is necessary to help the EEOC answer several questions: Was Guadiana treated differently, based on her disability, compared with other pregnant employees? Was she treated differently, based on her pregnancy, compared with other similarly disabled employees? To the extent she was treated differently, was this differential treatment pursuant to a general company policy?

Reply at 11-12 (emphasis added). These reply arguments are a recapitulation of the material in the EEOC’s opening brief; they do not introduce the arguments for the first time.

It cannot be said, as the panel implied via comparison to other Tenth Circuit cases, that the argument in the EEOC’s opening brief constitutes “inadequate[] brief[ing],” “a few scattered statements,” or “perfunctory arguments.” Slip op. at 18 n.12 (citations omitted). To the contrary, these arguments go to the heart of one of the two main issues the EEOC identified on appeal. They fully summarize the Commission’s position regarding the relevance of the information sought, as to both other disabled employees and other pregnant employees. Because Guadiana was both pregnant and disabled, she needed to compare herself to other disabled (but not pregnant) and pregnant (but not otherwise disabled) individuals.

To the extent the Court refused to consider the merits of the EEOC’s request because it felt the EEOC did not sufficiently explain its relevance to Guadiana’s charges, this was a misapplication of this Circuit’s waiver rule. The depth of treatment of the comparative material in the EEOC’s opening brief is entirely appropriate given the requested material’s necessarily speculative nature: because the Commission had not yet been permitted to obtain the requested material as part of the investigation, it could not discuss with any specificity how that material related to Guadiana’s charge. It did, however, explain how the material would be relevant to determining whether or not the charge had merit, which is all the Commission is required to do under EEOC v. Shell Oil, 466 U.S. 54, 68-69 (1984).[1] See also McLane Co. v. EEOC, No. 15-1248, 581 U.S. ---, 2017 WL 1199454, at *8 (Apr. 3, 2017).

In support of its conclusion that the EEOC waived this issue on appeal, this panel stated that the EEOC’s “self-imposed limitation” of its relevancy discussion to the pregnancy request “aligns with the district court’s ruling,” which did not address the relevance of comparator evidence as it related to the EEOC’s request for information about other disabled employees. Slip op. at 18. But the district court did address that request: as this panel noted elsewhere in its opinion, the district court opinion states, “[T]he Court here finds that the identification about other pregnant and/or disabled TriCore employees has little use in the investigation of Ms. Guadiana’s individual discrimination claim.” Slip op. at 11 n.6 (quoting AA.105) (emphasis added). The panel quoted this portion of the opinion in rejecting the EEOC’s argument that the district court did not specifically address its request for information about other disabled employees.[2] Surely, if the district court’s blanket assertion of irrelevancy is enough to show the district court considered and ruled on the merits of the EEOC’s argument regarding the expansion of its investigation to TriCore’s treatment of other disabled employees, simple fairness requires that the same statement be deemed fully sufficient to show the district court addressed the EEOC’s comparator-evidence rationale as it relates to the subpoena request for information about other disabled employees.

In finding waiver, this panel found the EEOC’s subject headings in its opening brief significant. Id. at 18 n.12. It is true that the section heading of the EEOC’s opening brief dealing with comparative material mentions “The Second Subpoena Request” rather than “The Subpoena Requests.” But the EEOC has found no other instance – in the Tenth Circuit, or anywhere else – of a court concluding that the narrowness of a subject heading waives an argument that has been fully presented in the body of a brief. Cf. Allstate Ins. Co. v. Swann, 27 F.3d 1539, 1542 (11th Cir. 1994) (concluding that “application of the waiver rule would be unduly harsh” where appellant failed to include argument in its statement of the issues but included all relevant facts in its opening brief and directly advanced the argument in its reply).

Even if one focuses on the pregnancy information sought in the second request, it is impossible to understand the full context of the requested information without comparing it to the material about disabled individuals sought in the first request, as this panel acknowledged. In order to determine whether Guadiana was treated as well as others “similar in their ability or inability to work,” the EEOC needs to speak with such similarly disabled employees.[3] Slip op. at 19 (citing Young v. United Parcel Servs., 135 S. Ct. 1338, 1354 (2015)). The first subpoena request, concerning contact information for other disabled employees, is aimed at conducting this portion of the investigation. When, as here, two aspects of a case are fundamentally intertwined, and the appellant’s discussion of those issues tracks the joint discussion of issues set out in the district court decision being appealed, a finding of waiver is inappropriate. See Brown v. Nucor Corp., 785 F.3d 895, 918-20 (4th Cir. 2015) (finding no waiver when issues of class commonality and predominance were discussed jointly, because the appellants’ arguments “directly respond[ed] to the issues the district court raised in both contexts”); United States v. Goforth, 465 F.3d 730, 737 (6th Cir. 2006).

The cases this panel cited in support of its waiver conclusion in footnotes 12 and 13 of the slip opinion are inapposite. Some involve litigants who asserted facts without explaining how those facts were supported in the record. See Holmes v. Colo. Coal. for Homeless Long Term Disability Plan, 762 F.3d 1195, 1199 (10th Cir. 2014) (citing cases involving a failure to advance an argument about the grounds for appeal and a failure to support a factual assertion with citation to authority or the record); Murrell v. Shalala, 43 F.3d 1388, 1389 n.2 (10th Cir. 1994) (refusing to consider a claim omitted from the formal statement of issues in plaintiff’s appellate brief and only perfunctorily referred to in the context of another argument). Other cases this panel cited involved entirely new issues that had not been raised at all in the appellant’s opening brief. See Silverton Snowmobile Club v. U.S. Forest Serv., 433 F.3d 772, 783 (10th Cir. 2006) (refusing to consider a wholly new argument, presented by new counsel for the first time in a reply brief); Mondragon v. Thompson, 519 F.3d 1078, 1081 n.2 (10th Cir. 2008) (refusing to consider an issue regarding the application of state law raised for the first time during oral argument).

Here, in contrast, the EEOC did frame the issue in its formal presentation of issues presented in the appeal and made the requisite argument clearly in the body of its opening brief, allowing for full argumentation from the parties and amicus. As the Fourth Circuit recently explained, “[T]he purpose of the waiver doctrine is to avoid unfairness to an appellee and minimize the risk of an improvident or ill-advised opinion being issued on an unbriefed issue.” Brown, 785 F.3d at 920 (internal citations omitted); see also Fed. Sav. & Loan Ins. Corp. v. Haralson, 813 F.2d 370, 373 n.3 (11th Cir. 1987) (noting that the waiver rule is intended to ensure appellees are able to rely on arguments in the appellant’s opening brief in framing their response, and refusing to apply the waiver rule when that purpose was satisfied); cf. Alameda Films SA de CV v. Authors Rights Restoration Corp., 331 F.3d 472, 483 (5th Cir. 2003) (explaining that appellants must set out their arguments in their opening brief to conserve judicial resources and “advise the opposite party of the points he is obliged to meet” (internal citation omitted)).

These justifications for the waiver rule do not apply in this case. The district court clearly understood the nature of the EEOC’s argument regarding the relevance to Guadiana’s claims of the information it sought relating to other pregnant and disabled employees. R.12; AA.105 (rejecting this aspect of the EEOC’s argument). There was no danger here of unfairness to TriCore, which was fully on notice from the beginning of this litigation that the EEOC contended the requested information was relevant. TriCore demonstrated as much through the substance of its arguments before the Commission, the district court, and this Court. To the extent TriCore believed it had been prejudiced by any failure of the Commission to present the issue on appeal, moreover – and, importantly, TriCore has never made any such contention – it could have filed a surreply. Where, as in this case, none of the potential problems giving rise to the waiver rule are present, an application of the rule that avoids a ruling on the substantive merits of the argument presented is wholly unjust.

II. The EEOC Did Not Waive Its Argument, in the District Court or on Appeal, Concerning the Comparative Relevance of Information About Other Pregnant Employees.

This panel also observed that the EEOC’s request for information about other pregnant employees “may seek information that is potentially relevant to Ms. Guadiana’s charge,” but it found that the EEOC waived this argument by failing to present it in the district court. Slip op. at 20-21. Earlier in its opinion, however, this panel concluded that the EEOC’s district court briefing was sufficient to preserve the issue. See id. at 17 n.11 (noting that the EEOC made arguments about the relevance of comparator evidence in its district court briefing and during oral argument, and that “[t]hese arguments were apparently enough to alert the district court to the EEOC’s comparator-evidence rationale because the court rejected the rationale as to the pregnancy request in its order denying the application”).[4] Thus, as this panel itself recognized, the EEOC’s district court briefing and argument were sufficient to preserve its argument about the relevance of the requested material.

This panel chided the EEOC for making “mere assertions of relevancy” to the district court, rather than providing “rationales as to why the comparator evidence would be relevant to investigating Ms. Guadiana’s charge.” Id. at 21 n.15. As noted above, however, the EEOC’s assertions of relevancy are necessarily somewhat speculative at this stage of the investigation because it has not yet been allowed access to the requested material. The explanation for relevance the EEOC asserted as to this material in the district court fully comports with the Supreme Court’s standard in this respect, as that Court just recently reaffirmed. See McLane, 2017 WL 1199454, at *8 (Apr. 3, 2017) (noting “the established rule that the term ‘relevant’ be understood ‘generously’ to permit the EEOC ‘access to virtually any material that might cast light on the allegations against the employer’” (quoting Shell Oil, 466 U.S. at 68-69)).

This panel further concluded that the requested information was overbroad because it extended to “pregnant employees who never sought an accommodation.” Slip op. at 21. Although it acknowledged the EEOC’s argument on appeal that such information may tend to show these women “fear[ed] retaliation or … believed asking [for an accommodation] would be futile,” the panel held the EEOC forfeited this argument because it did not make the argument in its opening brief on appeal. Id. at 22 n.17. However, the EEOC made this argument in response to TriCore’s contention in its Answer Brief that this specific subset of the requested material “certainly has no relevance.” TriCore Answer Br. at 17. Under the settled law of this Circuit, the EEOC was entitled to respond to this argument in its Reply. See United States v. Brown, 348 F.3d 1200, 1213 (10th Cir. 2003) (“When an appellee raises in its answer brief an alternative ground for affirmance, the appellant is entitled to respond in its reply brief.”); Sadeghi v. INS, 40 F.3d 1139, 1143 (10th Cir. 1994) (holding that an appellant is entitled to respond in a reply brief to arguments raised in the appellee’s brief). This panel’s conclusion that the EEOC waived the argument is therefore incorrect as a matter of law.

CONCLUSION

For the foregoing reasons, this Court should rehear this case, rule on the substance of the EEOC’s arguments about the relevance of the subpoenaed material, reverse the district court, and enforce the EEOC’s subpoena of this information.

Respectfully submitted,

JAMES L. LEE

Deputy General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

ANNE NOEL OCCHIALINO

Senior Appellate Attorney

/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 35(b)(2)(A). This brief contains 3,397 words, from the Introduction through the Conclusion, as determined by the Microsoft Word 2016 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: April 28, 2017

[1] For the same reason, the panel’s conclusion that the EEOC failed to present its relevance arguments sufficiently as to both its pregnancy and its disability request in district court, slip op. at 21 & nn.15-16, also constitutes an overlooking or misconstrual of the EEOC’s arguments in its briefs and during oral argument, as well as a misapplication of applicable waiver law. See Shell Oil, 466 U.S. at 68-69; Osborne v. Baxter Healthcare Corp., 798 F.3d 1260, 1280 (10th Cir. 2015) (“An issue is preserved for appeal if a party alerts the district court to the issue and seeks a ruling. … Both parties alerted the district court to the [issue], and both reiterate their arguments on appeal. Because we believe the record is fully developed on this point, we opt to resolve the issue before remanding the case to the district court.” (internal citations omitted)); slip op. at 17 n.11 (noting that the EEOC raised its argument regarding the value of comparator evidence multiple times before the district court in its briefs and during oral argument). More specific argument cannot be required when the nature of the material – which has not yet been produced – is necessarily speculative.

[2] The EEOC argued on appeal that the district court had not addressed its argument that TriCore’s admitted violation of the ADA with respect to two of Guadiana’s requests for accommodations of her disability, in violation of Smith v. Midland Brake, Inc., 180 F.3d 1154 (10th Cir. 1999) (en banc), justified a broader inquiry into the company’s treatment of accommodation requests from disabled employees. This panel held that the quoted statement was sufficient to show the district court fully addressed the EEOC’s Midland Brake-based argument, even though the district court neglected to mention Midland Brake or any aspect of the EEOC’s argument on this score.

[3] This is the converse of this panel’s observation that “evidence that other non-disabled, pregnant employees were granted accommodations may tend to prove that Ms. Guadiana was denied an accommodation on the basis of her disability.” Slip op. at 20.

[4] As explained above, the district court’s ruling on this issue, which refers to the relevance of information “about other pregnant and/or disabled TriCore employees,” specifically referred to both types of information. R.12; AA.105 (emphasis omitted and added). Accordingly, the EEOC’s briefing sufficiently alerted the district court to the relevance issue as to both types of information sought.