_________________________________________________________ No. 11-1121 _________________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT _________________________________________________________ Oral Argument Requested U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant v. BURLINGTON NORTHERN SANTA FE RAILROAD NKA BNSF RAILWAY COMPANY, Defendant-Appellee. _________________________________________________________ On Appeal from the United States District Court for the District of Colorado (1:10-cv-03008-JLK) The Honorable John L. Kane, Jr., Presiding _________________________________________________________ OPENING BRIEF OF THE PLAINTIFF-APPELLANT U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION _________________________________________________________ P. DAVID LOPEZ General Counsel LORRAINE C. DAVIS Assistant General Counsel DANIEL T. VAIL Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, N.E. Room 5NW14P Washington, D.C. 20507 (202) 663-4571 (phone) (202) 663-7090 (fax) daniel.vail@eeoc.gov TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii STATEMENT OF RELATED CASES. . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE ISSUE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 I. The Nature of This Case and the Course of Proceedings. . . . . . . . . . 2 II. Statement of Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . 3 III. Proceedings Below. . . . . . . . . . . . . . . . . . . . . . . . . . . 12 SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 The Information Requested in the EEOC Subpoena Relates to Unlawful Employment Practices Under the ADA and Is Relevant to the Charges at Issue. Therefore, the District Court Abused Its Discretion in Refusing to Enforce the EEOC's Subpoena as Written. . . . . . . . . . . . . . . . . . . . . 18 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .39 STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . 40 CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . C-1 ECF CERTIFICATE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .C-2 ADDENDUM. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-1 CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . C-3 TABLE OF AUTHORITIES Cases Circle K Corp., Inc. v. EEOC, 501 F.2d 1052 (10th Cir. 1974). . . . . . . . . . . . . . . . . . 29, 30 Cudahy Packing Co. v. NLRB, 117 F.2d 692 (10th Cir. 1941). . . . . . . . . . . . . . . . . . . . . 23 EEOC v. Cherokee Nation, 871 F.2d 937 (10th Cir. 1989). . . . . . . . . . . . . . . . . . . . . 18 EEOC v. Dillon Cos., Inc., 310 F.3d 1271 (10th Cir. 2002). . . . . . . . . . . . . . . 18, 19, 23, 24 EEOC v. Fed. Express Corp., 558 F.3d 842 (9th Cir. 2009). . . . . . . . . . . . . . . . . . . . . 24 EEOC v. Gen. Elec. Co., 532 F.2d 359 (4th Cir. 1976). . . . . . . . . . . . . . . . . . . . . 21 EEOC v. Konica Minolta Bus. Solutions, F.3d , 2011 WL 1602064 (7th Cir. 2011). . . . . . . . . . . . 35, 36, 37, 38 EEOC v. Kronos, 620 F.3d 287 (3d Cir. 2010). . . . . . . . . . . . . . . . . 32, 33, 34, 37 EEOC v. Lockheed Martin Corp., Aero & Naval Sys., 116 F.3d 110 (4th Cir. 1997). . . . . . . . . . . . . . . . . . . . . . . . 25 EEOC v. McLean Trucking Co., 525 F.2d 1007 (6th Cir. 1975). . . . . . . . . . . . . . . . . . . . . 21 EEOC v. Shell Oil Co., 466 U.S. 54 (1984). . . . . . . . . . . . . . . 20, 22, 24, 25-26, 27, 36 EEOC v. United Air Lines, Inc., 287 F.3d 643 (7th Cir. 2002). . . . . . . . . . . . . . . . . . . . . 24 TABLE OF AUTHORITIES Cases EEOC v. Univ. of N.M., 504 F.2d 1296 (10th Cir. 1974). . . . . . . . . . . . . . . 23, 24, 25, 26 EEOC v. Waffle House, Inc., 534 U.S. 279 (2002). . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Gen. Tel. Co. of N.W., Inc. v. EEOC, 446 U.S. 318 (1980). . . . . . . . . . . . . . . . . . . . . . . . 21, 33 Hiller v. Oklahoma, 327 F.3d 1247 (10th Cir. 2003). . . . . . . . . . . . . . . . . . . . . 19 Joslin Dry Goods Co. v. EEOC, 483 F.2d 178 (10th Cir. 1973). . . . . . . . . . . . . . . . . . . . 30, 31 Koon v. United States, 518 U.S. 81 (1996). . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Love v. Pullman, 404 U.S. 522 (1972). . . . . . . . . . . . . . . . . . . . . . . . . . . 27 McAlester v. United Air Lines, Inc., 851 F.2d 1249 (10th Cir. 1988). . . . . . . . . . . . . . . . . . . . . 31 Occidental Life Ins. Co. of Cal. v. EEOC, 432 U.S. 355 (1977). . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Rich v. Martin Marietta Corp., 522 F.2d 333 (10th Cir. 1975). . . . . . . . . . . . . . . . . . . . . 24 United Nuclear-Homestake Partners v. EEOC, Nos. 668-70 and 669-70, 1972 WL 11550 (10th Cir. June 14, 1972). . . 3, 27 United States v. Mitchell, 633 F.3d 997 (10th Cir. 2011). . . . . . . . . . . . . . . . . . . . . 18 TABLE OF AUTHORITIES Cases United States v. Arthur Young & Co., 465 U.S. 805 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Univ. of Pa. v. EEOC, 493 U.S. 182 (1990). . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Statutes 28 U.S.C. § 1291. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 29 U.S.C. § 161. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 29 U.S.C. § 161(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 42 U.S.C. §§ 2000e et seq.. . . . . . . . . . . . . . . . . . . . . . . . . . . 19 42 U.S.C. § 2000e-5(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18 42 U.S.C. § 2000e-5(f)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . 1 42 U.S.C. § 2000e-8(a). . . . . . . . . . . . . . . . . . . . . . . .19, 20, 22, 24 42 U.S.C. § 2000e-9. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1, 20 42 U.S.C. §§ 12101 et seq.. . . . . . . . . . . . . . . . . . . . . . . . . . . 2 42 U.S.C. § 12117(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 19 TABLE OF AUTHORITIES Regulations 29 C.F.R. § 1601.16(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 29 C.F.R. § 1601.16(b)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . .11 29 C.F.R. § 1601.16(b)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . 11 29 C.F.R. § 1601.16(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 29 C.F.R. § 1601.16(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Rules Fed. R. App. P. 4(a)(1)(B). . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Fed. R. App. P. 32(a)(5). . . . . . . . . . . . . . . . . . . . . . . . . . . C-1 Fed. R. App. P. 32(a)(6). . . . . . . . . . . . . . . . . . . . . . . . . . . C-1 Fed. R. App. P. 32(a)(7)(B). . . . . . . . . . . . . . . . . . . . . . . . . . . C-1 Fed. R. App. P. 32(a)(7)(B)(iii). . . . . . . . . . . . . . . . . . . . . . . . C-1 Fed. R. App. P. 34(a)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 10th Cir. R. 28.2(c)(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 STATEMENT OF RELATED CASES There are no prior or related appeals. STATEMENT OF JURISDICTION On December 13, 2010, the U.S. Equal Employment Opportunity Commission (the EEOC or Commission) filed this subpoena enforcement action in the U.S. District Court for the District of Colorado (the district court). R.1; AA4- 7.<1> The district court had jurisdiction over this matter under 42 U.S.C. § 12117(a), 42 U.S.C. §§ 2000e-5(f)(3) and 2000e-9, and 29 U.S.C. § 161(2). The district court issued a final order and entered judgment on January 27, 2011. R.9; AA127. On March 22, 2011, the EEOC filed a timely appeal of the judgment. R.12; AA146-47. See Fed. R. App. P. 4(a)(1)(B). This Court now has jurisdiction under 28 U.S.C. § 1291. STATEMENT OF THE ISSUE Whether the district court abused its discretion in declining to enforce the EEOC's subpoena. STATEMENT OF THE CASE I. The Nature of This Case and the Course of Proceedings This is a subpoena enforcement action filed by the EEOC against Burlington Northern Santa Fe Railroad, now known as BNSF Railway Company (BNSF). AA4. The EEOC is the federal agency charged with enforcing federal employment discrimination statutes, including the Americans with Disabilities Act of 1990 as amended (the ADA), 42 U.S.C. §§ 12101 et seq. AA4. BNSF is a freight railroad that operates in twenty-eight U.S. states and employs approximately 40,000 employees. R.1-4; AA20. This appeal stems from a series of discrimination charges individuals have filed in various EEOC offices throughout the country. These charges all allege that BNSF violated the ADA by failing to hire or firing the charging parties because of their actual or perceived medical limitations. As part of its investigation of two of these charges, the Commission issued a subpoena to BNSF. The subpoena sought preliminary data about BNSF's electronic recordkeeping practices. BNSF refused to comply with this subpoena. The EEOC then sought the district court's assistance in enforcing the subpoena. R.1; AA4-7. The district court held a hearing on the matter. R.8; AA128-45. In an oral ruling from the bench, the district court refused to require BNSF to provide any of the information included in the Commission's subpoena. AA145. This appeal followed. II. Statement of Facts In February 2007, Gregory Graves filed a charge with the EEOC's Denver Field Office alleging that BNSF had discriminated against him on the basis of disability. R.1-2; AA15-16. In his charge, Graves contends that he applied with BNSF to be a Conductor Trainee. AA15. It appears this position was to be based in Denver, Colorado. R.1-4; AA20. Graves states that he passed a written exam, an interview, and all the medical and physical tests required for this position. AA15. According to Graves, BNSF notified him in December 2006 that he had been selected for a Conductor Trainee position. Id. However, on January 9, 2007, the Medical Review Department at BNSF notified Graves that BNSF's Medical Officer had determined that he was not medically qualified for the Conductor Trainee position "due to significant risk of aggravation or recurrence of a[] prior injury." AA15. In his charge, Graves states that he has a 30 percent disability rating from injuries he sustained in 1994 while serving in the U.S. Army. AA16. Graves contends that "none of my injuries has ever affected my performance" and "I've worked in jobs that are far more physically demanding than that of a conductor." Id. Graves also states that he "believe[s] BNSF's Medical Officer discriminated against me by speculating that I would be a risk for recurrence for 12 year [sic] of injuries." Id. Graves further asserts that he believes "the offer of employment was rescinded because I have a record of an impairment and I was regarded to be disabled." Id. The EEOC served notice of this ADA charge on BNSF on or around February 21, 2007. R.1-3; AA17-18. On May 11, 2007, the Commission received BNSF's initial response to the charge (also known as a "position statement"). R.1- 4; AA19-23. The position statement was signed by a BNSF Human Resources Manager located in Belen, New Mexico. AA23. In its response, BNSF acknowledges that Graves successfully tested and interviewed for a Conductor Trainee position, and that in December 2006, it gave Graves a conditional offer of employment. AA20. BNSF claims that this conditional offer was contingent on Graves successfully completing a post-offer background check, medical history questionnaire, drug screen, physical exam, and "physical capabilities exam." AA21-22. BNSF explains that a review by its Medical Department "determined [Graves] was not medically qualified for train service due to significant risk of aggravation or recurrence of shoulder conditions." Id. at 22. BNSF contends that "[t]hese conditions posed a safety risk to Mr. Graves and others and as a result, his conditional offer of employment was rescinded." Id. A doctor named Michael Jarrard from BNSF's Medical Department made the recommendation that Graves was not medically qualified for the Conductor position due to "significant risk." Id. In its position statement, BNSF states that it informed Graves that he may be qualified for other BNSF positions "such as Dispatcher, Yard Master, Mechanical Laborer, or Machinist should he choose to apply for open positions." Id. According to BNSF, "[i]t is important to note that the BNSF's rescission of Mr. Graves['s] conditional offer of employment for the Conductor Trainee position is not an exclusion for other jobs at BNSF for which Mr. Graves applies and is qualified." AA19; AA22. In October 2007, Thomas Palizzi also filed a charge with the EEOC's Denver Field Office alleging BNSF violated the ADA. R.1-5; AA24-25. In his charge, Palizzi alleges that he applied to BNSF and was told he would have a better chance of getting selected if he completed a program that BNSF apparently provided through a joint venture with a community college in Kansas. AA24. Palizzi completed the community college program, and BNSF later offered him a job as a Conductor. AA25. Subsequently, a contractor for BNSF asked Palizzi if he had ever had "any surgeries." AA25. Palizzi "disclosed my medical information to the contractor and, after doing so, the job offer was retracted." Id. According to Palizzi, "I was told that the job offer was retracted because I was physically not qualified for the Conductor position." Id. Palizzi contends that BNSF never disclosed the physical requirements for the Conductor position or asked whether he could perform the job with or without accommodation. Id. Palizzi claims that BNSF discriminated against him because it "regarded me to be disabled based on medical history." Id. The EEOC served BNSF with notice of Palizzi's charge on October 12, 2007. R.1-6; AA26-27. BNSF responded with a position statement dated November 15, 2007. R.1-7; AA28-32. This position statement was sent and signed by a BNSF Regional Director for Human Resources based in Seattle, Washington. AA28, 32. According to this position statement, BNSF gave Palizzi a conditional offer of employment in November 2006. AA30. This offer "was contingent on favorable outcome of [among other things] receipt and review of a completed BNSF Medical History Questionnaire and [Palizzi's] successful completion of [a] drug screen[,] physical exam, and physical capabilities exam." Id. BNSF claims that on or about January 5, 2007, "Dr. Jarrard reviewed the supplemental information provided by Mr. Palizzi and determined that [he] was not medically qualified for the conductor position due to significant risk of recurrent knee joint problems and wrist fusion." Id. However, at another point in its position statement, BNSF alleges that Palizzi's "conditional offer of employment as a conductor was rescinded due to (evidence of chronic pain requiring narcotic use.) [sic]." AA28, 32. BNSF also states that "BNSF's rescission of Mr. Palizzi's offer of employment . . . for the conductor position is not an exclusion from other jobs at BNSF for which Mr. Palizzi applies and is qualified" and that Palizzi "is eligible for other positions with BNSF Railway that are less physically demanding" such as "yardmaster, clerical, and other opportunities that fit his skill set." AA28, 31. On February 2, 2009, the Commission informed BNSF that it would be investigating the charges filed by Graves and Palizzi together. R.1-8; AA33. The EEOC also sent BNSF a request for information (RFI). AA33-34. This RFI asked BNSF to "identify any computerized or machine-readable files (or tables) that are or have been created or maintained by you . . . at any time during the period December 1, 2006 through the present that contain electronic data about or effecting [sic] current and/or former employees including employees working throughout the United States." AA33. The RFI also asked BNSF to "identify any computerized or machine-readable files that are or have been maintained by you . . . since December 2006 which contain data on personnel activities" including, but not limited to, "applicants, hiring, and terminations." Id.<2> BNSF responded with two letters (one for Graves's charge and one for Palizzi's charge). AA35, 36. Both letters were signed on behalf of BNSF by a Human Resource Manager apparently located in Denver, Colorado. Id. In both letters, BNSF disclosed that it used a "third party web based applicant tracking system through Ceridian Payroll and Human Resources Services." Id. BNSF explained that applicants use this tracking system to search current job openings, create online applications, and submit applications for positions of interest. Id. BNSF also explained that its own human resources staff uses the system to create and post job openings, track application status and history, communicate with applicants regarding their application status and next steps in the process (if applicable), generate reports, and maintain candidate records on an ongoing basis. Id. BNSF provided no other information responsive to the EEOC's RFI. R.1-1; AA10 at ¶ 4(j). However on or around March 27, 2009, a representative from BNSF's legal department sent the EEOC a letter addressing what it characterized as the "threshold issue" concerning the "appropriate scope" of the EEOC's investigation. R.1-10; AA37-39. BNSF stated that neither Graves nor Palizzi "has raised any allegation that could be interpreted to extend beyond his own specific circumstances as an applicant for the position of Conductor in BNSF's Colorado Division." AA37. Further, BNSF stated, it "is not aware of any other charge of discrimination or any other notice provided by EEOC at any time that would serve to broaden the scope of the EEOC's investigation beyond the specific charges" filed by Graves and Palizzi. AA37-38. BNSF asserted that it "does not see the justification for a request that unambiguously seeks information beyond the scope of" those charges, and asserted that until the Commission exercised its authority to file a Commissioner's charge alleging a pattern or practice of discrimination, it "is simply not in a position to evaluate the propriety of the [RFI]." AA38. In its letter, BNSF also contended that "several considerations should inform any decision by the EEOC to issue its own charge of discrimination here." AA38. First, BNSF argued, "no evidence exists" that BNSF engaged in any pattern or practice of discrimination related to any issue raised by Palizzi and Graves. Id. Second, according to BNSF, Graves and Palizzi were "applicants for employment" with BNSF, and as a result, "no justification exists to suggest that any alleged discriminatory conduct by BNSF related to the medical screening and decision- making concerning applicants implicates any decisions made by BNSF for its current or former employees." Id. Third, because both Graves and Palizzi were applicants for the position of Conductor, "no basis exists to suggest that any alleged discriminatory conduct occurred concerning applicants for any other position with BNSF." Id. And finally, BNSF claimed, as Graves and Palizzi were applicants for positions in BNSF's Colorado Division, it would be "unreasonable" for the EEOC "to broaden the scope of any investigation beyond applicants for the position of Conductor in the Colorado Division." Id. In response, on April 10, 2009, the EEOC issued Subpoena No. DE-009- 00009 (the subpoena) and served it on BNSF. R.1-11; AA40-43. The subpoena requested virtually verbatim the information the Commission had first requested in its RFI, requiring BNSF to "identify any computerized or machine-readable files (or tables) that are or have been created or maintained by you . . . at any time during the period December 1, 2006 through the present that contain electronic data about or effecting [sic] current and/or former employees including employees working throughout the United States" and to "identify any computerized or machine-readable files that are or have been maintained by you . . . since December 2006 which contain data on personnel activities" including, but not limited to, "applicants, hiring, and terminations." AA40. The EEOC simultaneously sent BNSF a letter informing BNSF that "[p]art of the Commission's request addresses information that relates to pattern and practice discrimination[,]" and that the "EEOC is providing this notice of its intentions to broaden this investigation under the authority granted by the statute." R.1-12; AA44. On April 20, 2009, BNSF filed a Petition to Modify or Revoke the subpoena with the EEOC. R.1-13; AA45-52. See 29 C.F.R. §§ 1601.16(b)(1), (2) (the EEOC's regulations providing for such a procedure). In this petition, BNSF raised largely the same objections to the subpoena it had raised in its letter dated March 27, 2009. AA45-52. BNSF also notified the Commission that it "does not intend to comply with the subpoena in any respect by producing any of the documents requested in the subpoena." AA45. On June 8, 2010, the Commission denied BNSF's petition. R.1-14; AA60- 76. In denying the petition, the Commission explained that BNSF has adopted "an unduly restrictive view of the scope of the Commission's investigative authority." AA66. The EEOC stated that Graves's and Palizzi's charges, "as well as other evidence known to the Commission, suggest the existence of a policy, pattern, or practice by which BNSF may exercise centralized control to unlawfully exclude the disabled or those perceived to be disabled from employment, which, in turn, justifies expanding the individuals' charges to include investigation of a pattern or practice of discrimination." AA70-71. BNSF still refused to comply with the subpoena. R.1-1; AA11 at ¶ 4(o). III. Proceedings Below On December 13, 2010, the EEOC filed an Application for Order to Show Cause Why Administrative Subpoena Should Not Be Enforced, in the district court. R.1; AA4-7. In its memorandum in support of the Application, the EEOC explained that in its RFI and subpoena, it had merely asked BNSF to identify and describe certain computerized files in order to ascertain what personnel-related information BNSF stored electronically. R.2; AA90, 98-99. The Commission further explained that it had asked for this preliminary information so that it could then craft a narrowly-tailored request for any relevant underlying data, "thereby avoid[ing] serving a request [on BNSF for information] that is overly broad or burdensome." AA90. The Commission also argued that, notwithstanding that both Graves and Palizzi had applied for Conductor Trainee positions in Colorado, it could obtain information about BNSF's computerized files involving applicants and employees nationwide. The EEOC explained that it had received several other charges across the country alleging similar ADA violations. AA92. The memorandum the EEOC filed in support of its Application included an affidavit from the Director of the EEOC's Denver Field Office describing these other charges. R.1-1; AA8-14. According to this affidavit, in one of these charges, originally filed with the Wyoming Fair Employment Agency, a female charging party alleges that she applied for a BNSF Conductor Trainee position in Wyoming. R.1-1; AA11 at ¶ 5(a). The charging party contends that she passed an initial written test and drug screen, was interviewed, and received a conditional offer of employment. Id. She then filled out a medical questionnaire and took various physical tests. Id. She later received written confirmation that she had been hired. Id. The charging party traveled to Nebraska to attend training for her new job. Id. However, during her first day of training, she was informed that there had been a mistake, and that she was not currently medically qualified for the job for which she had been hired. Id. Again, Dr. Michael Jarrard, BNSF's Medical Review Officer in Fort Worth, Texas, apparently is the individual who determined that this charging party was not medically qualified to be a Conductor Trainee. AA12 at ¶ 5(a). Similarly, the affidavit revealed that the EEOC has received a charge from an individual alleging that he applied for a Track Laborer position with BNSF in Minnesota. R.1-1; AA12 at ¶ 5(c). This charging party claims that he was interviewed, passed the medical examination, and was hired. Id. He later was told that he actually was not hired, allegedly because of his "previous medical condition." Id. Once again, it was Dr. Jarrard who determined that the charging party's medical condition had disqualified him from employment with BNSF.<3> Id. In addition, the affidavit explained, the Commission has received a charge from someone who applied to be an Electrician Diesel Engine Mechanic for BNSF in Kansas in July 2008. R.1-1; AA13 at ¶ 5(d). The charging party had been given a conditional offer of employment, but BNSF rescinded it. Id. Once again, it appears Dr. Jarrard is the BNSF official who disqualified the individual (this time due to an injury the charging party had sustained to his right hand and wrist in a car accident when he was sixteen years old). Id. Finally, according to the affidavit, the EEOC has received another charge filed in Texas alleging similar ADA violations. R.1-1; AA12 at ¶ 5(b). In this charge, the charging party explains that he had a heart condition and had had a defibrillator implanted in 2003. Id. The charging party contends that BNSF hired him to be a Conductor in March 2006, and that he performed all of the duties of Conductor without limitations or accommodation for about four years. Id. In March 2010, he needed a new defibrillator. Id. In April 2010, he was furloughed. Id. To date, the charging party still has not been allowed to return to work at BNSF. Id. The charging party's Regional Manager allegedly told him that he "slipped through the cracks," that he never should have been hired, and that he cannot work for BNSF as a Conductor because of his defibrillator (despite having done so for four years). Id. In the district court proceedings, the EEOC argued that allegations contained in Graves's and Palizzi's charges - as well as in these other charges filed against BNSF in Wyoming, Minnesota, Kansas, and Texas, all alleging similar disqualifications and/or terminations based on disability - suggested the existence of a policy, pattern, or practice by which BNSF exercises centralized control through Dr. Michael Jarrard (the BNSF Medical Review Officer in Fort Worth, Texas) to unlawfully exclude individuals with disabilities from employment with BNSF in violation of the ADA. AA92. Accordingly, the EEOC asserted, the expansion of Graves's and Palizzi's charges to include investigation of a nationwide policy, pattern, or practice of disability discrimination was both warranted and justified. Id. On December 16, 2010, the district court issued an Order to Show Cause directing BNSF to answer the EEOC's Application. R.4; AA102-03. On January 14, 2011, BNSF filed its response. R.7; AA107-25. In its response, BNSF raised largely the same objections to the subpoena it had raised in its March 2009 letter to the Commission objecting to the initial RFI, and in its April 2009 petition to revoke or modify the subpoena. The district court held a hearing on the matter on January 21, 2011. R.8; R.10; AA126, 128-145. At the end of the hearing, in an oral ruling from the bench, the district court denied the EEOC's Application. AA145. The court stated simply: The administrative subpoena is pervasive, and it seeks plenary discovery. There are no allegations of a pattern and practice. The demand for data on a nation-wide basis with two individual claims involving only applicants in Colorado is excessive. 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. The show cause order is discharged, and BNSF's refusal to comply with the subpoena as issued is sustained. AA145. SUMMARY OF ARGUMENT In refusing to enforce the Commission's subpoena, the district court applied erroneous legal principles and ignored critical record evidence. The district court appeared to conclude that before the Commission can subpoena information regarding possible systemic discrimination, it must have a charge explicitly alleging a pattern-or-practice claim. Yet nothing in the ADA or governing case law construing the Commission's subpoena authority imposes such a requirement. To the contrary, the only constraint is that the information the EEOC is seeking must relate to an unlawful employment practice under the ADA and be "relevant" to a charge under investigation. Here, information about whether BNSF has a practice of screening out individuals on the basis of disability relates to unlawful employment practices covered by the ADA. In addition, information about such a practice also is relevant to Graves's and Palizzi's allegations that BNSF violated the ADA. Certainly, then, the preliminary request at issue in this case - for information simply about how BNSF keeps electronic personnel data - relates to unlawful employment practices under the ADA and is relevant to Graves's and Palizzi's charges. Further, the Commission's request for this preliminary data for BNSF positions company-wide comfortably falls within the scope of a reasonable investigation, given the multiple allegations of discrimination against BNSF now known to the Commission. The EEOC has received six charges filed in states all over the country, suggesting that BNSF is applying the same or a similar screen- out policy to various jobs in Colorado, Kansas, Minnesota, Texas, and Wyoming. The district court disregarded this critical record evidence in determining that the Commission's subpoena was based merely on two charges alleging only individual ADA violations. While each of the charges did contain individual allegations, it nevertheless was reasonable for the Commission to suspect that BNSF may have company-wide policies or practices regarding medical screening of applicants and employees. Taken together, the six charges provide more than ample justification for the preliminary (albeit nationwide) data request at issue. Thus, the district court abused its discretion in refusing to enforce the Commission's subpoena as written. ARGUMENT The Information Requested in the EEOC Subpoena Relates to Unlawful Employment Practices Under the ADA and Is Relevant to the Charges at Issue. Therefore, the District Court Abused Its Discretion in Refusing to Enforce the EEOC's Subpoena as Written. This Court reviews a district court's decision not to enforce an EEOC subpoena for abuse of discretion. EEOC v. Dillon Cos., Inc., 310 F.3d 1271, 1274 (10th Cir. 2002). However, this Court reviews related legal conclusions de novo. EEOC v. Cherokee Nation, 871 F.2d 937, 938 n.1 (10th Cir. 1989) (noting, in the context of an EEOC subpoena enforcement action, that this Court reviews a district court's ruling on a question of law de novo); cf. United States v. Mitchell, 633 F.3d 997, 1001 (10th Cir. 2011) (a district court by definition abuses its discretion when it makes an error of law) (quoting Koon v. United States, 518 U.S. 81, 100 (1996)). Here, in refusing to enforce the Commission's subpoena, the district court misinterpreted applicable legal standards and disregarded critical record evidence. The district court thus abused its discretion and its decision must be reversed. The EEOC is required by statute to investigate charges of discrimination it receives. See 42 U.S.C. § 2000e-5(b) (stating the Commission "shall make an investigation thereof") (emphasis added); see also Occidental Life Ins. Co. of Cal. v. EEOC, 432 U.S. 355, 359 (1977) ("The EEOC is . . . required to investigate the charge and determine whether there is reasonable cause to believe that it is true.") (emphasis added); cf. Hiller v. Oklahoma, 327 F.3d 1247, 1249 (10th Cir. 2003) (same). These investigations are critical to accomplishing the Commission's mission. Indeed, the Supreme Court has emphasized the importance of ensuring that the Commission's ability to investigate discrimination not be impeded. See, e.g., EEOC v. Waffle House, Inc., 534 U.S. 279, 296 n.11 (2002) (stating "[w]e have generally been reluctant to approve rules that may jeopardize the EEOC's ability to investigate . . . cases"). To facilitate proper charge investigations, Congress provided the Commission with a robust subpoena power. Under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq. (Title VII), and the ADA, the EEOC "shall at all reasonable times have access to . . . any evidence of any person being investigated or proceeded against that relates to unlawful employment practices [under these statutes] . . . and is relevant to the charge under investigation." 42 U.S.C. § 2000e-8(a).<4> Title VII and the ADA also give the Commission authority to issue and seek judicial enforcement of subpoenas asking for such information. See 42 U.S.C § 2000e-9 (incorporating by reference 29 U.S.C. § 161 (the subpoena procedures found in Section 11 of the National Labor Relations Act (NLRA))); see also 29 C.F.R. §§ 1601.16(a), (c), (d) (noting the Commission's authority to sign and issue subpoenas and to use Section 11 of the NLRA to compel judicial enforcement of any subpoena). Interpreting these statutory provisions, the Supreme Court in EEOC v. Shell Oil Co., 466 U.S. 54 (1984), explained that the Commission's authority to investigate "is tied to charges filed with the Commission." Id. at 64. According to the Court, "unlike other federal agencies [such as the Federal Trade Commission] that possess plenary authority to demand to see records relevant to matters within their jurisdiction, the EEOC is entitled to access only to evidence 'relevant to the charge under investigation.'" Id. (quoting 42 U.S.C. § 2000e-8(a)) (internal footnote omitted). The district court here concluded that the Commission's subpoena was "pervasive" and "seeks plenary discovery." The district court also found that "[t]here are no allegations of a pattern and practice" in this case, and that while "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." Therefore, the district court concluded, the Commission's "demand for data on a nation-wide basis with two individual claims involving only applicants in Colorado is excessive." AA145. The district court's ruling is fundamentally flawed, legally and factually. To begin, the district court was simply incorrect in concluding that there were "no allegations of a pattern and practice in this case." At the same time it issued its subpoena in this matter, the Commission notified BNSF that it was investigating a possible pattern or practice of disability-based discrimination. AA44. BNSF has never claimed that it did not receive adequate notice of the EEOC's intention to expand its investigation. To be sure, neither Graves's nor Palizzi's charge contained any allegations of a pattern or practice of discrimination. However, nothing in the text of Title VII or the ADA requires the Commission to receive (or procure) a charge explicitly containing pattern-or-practice allegations to subpoena information on possible systemic discrimination. To the extent the district court's ruling can be read to have held otherwise, it constitutes reversible legal error. In fact, the Supreme Court has ruled that the EEOC may file a lawsuit to challenge "[a]ny violations that the EEOC ascertains in the course of a reasonable investigation of the charging party's [charge] . . . ." Gen. Tel. Co. of N.W., Inc. v. EEOC, 446 U.S. 318, 331 (1980) (citing EEOC v. Gen. Elec. Co., 532 F.2d 359, 366 (4th Cir. 1976); EEOC v. McLean Trucking Co., 525 F.2d 1007, 1010 (6th Cir. 1975)). Surely, if the Commission is empowered to actually sue a defending employer based on an allegation such as systemic discrimination that was not actually included in the charge, a fortiori the EEOC must be allowed to fully investigate such an allegation - including by issuing a subpoena seeking information on the allegation - before filing suit. Indeed, Title VII and the ADA merely require the subpoenaed information to "relate[] to unlawful employment practices" under those statutes, and somehow be "relevant" to the charge(s) under investigation. 42 U.S.C. § 2000e-8(a). In Shell Oil, the Supreme Court emphasized that this statutory limitation on the EEOC's investigative authority "is not especially constraining." Shell Oil, 466 U.S. at 68. To be sure, the Court cautioned that this requirement should not be construed in a way that would render it a "nullity." Id. at 69. However, it also emphasized that "[s]ince the enactment of Title VII, courts have generously construed the term 'relevant' and have afforded the Commission access to virtually any material that might cast light on the allegations against the employer." Id. at 68-69 (emphasis added); see also Univ. of Pa. v. EEOC, 493 U.S 182, 191 (1990) ("To enable the Commission to make informed decisions at each stage of the enforcement process, [the statute] confers a broad right of access to relevant evidence.") (emphasis added). Similarly, nothing in this Court's precedent requires a charge to contain explicit (or even implicit) allegations of systemic discrimination before the Commission can subpoena information about such practices. Cf. United Nuclear- Homestake Partners v. EEOC, Nos. 668-70 and 669-70, 1972 WL 11550, at *2 (10th Cir. June 14, 1972) (en banc) (explaining, in the context of a Commissioner's charge, that "[t]o require the charge to contain a specific bill of particulars would necessarily limit the scope of the investigation to the particulars of the 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"). This Court has ruled that "[t]he sole limitation imposed upon the discovery procedures of the EEOC in the conduct of investigations triggered by charges . . . is whether the information sought is 'relevant' to or 'relates to any matter' under investigation or in question." EEOC v. Univ. of N.M., 504 F.2d 1296, 1301 (10th Cir. 1974) (emphasis added). This Court also has urged an "expansive definition" of the concept of "relevance" for these purposes. See Dillon, 310 F.3d at 1274 (citing United States v. Arthur Young & Co., 465 U.S. 805, 813-14 (1984) (involving an IRS subpoena)). The Court has cautioned that subpoenas "cannot be so broadly stated as to constitute a 'fishing expedition.'" Univ. of N.M., 504 F.2d at 1302 (quoting Cudahy Packing Co. v. NLRB, 117 F.2d 692 (10th Cir. 1941)). That said, this Court has held that "administrative subpoenas may be enforced for investigative purposes unless they are plainly incompetent or irrelevant to any lawful purpose." Univ. of N.M., 504 F.2d at 1303; see also Dillon, 310 F.3d at 1275 (same) (quoting Univ. of N.M. and also citing EEOC v. United Air Lines, Inc., 287 F.3d 643, 652-53 (7th Cir. 2002), with approval); cf. Rich v. Martin Marietta Corp., 522 F.2d 333, 344 (10th Cir. 1975) ("It cannot be said, therefore, that the policy of this court has been to narrowly circumscribe discovery in EEOC cases."). Here, information related to whether BNSF has a practice of screening out individuals on the basis of disability unquestionably "relates to unlawful employment practices covered by [the ADA]." 42 U.S.C. § 2000e-8(a). And if, as it appears, Graves and Palizzi were subjected to this practice, information about that practice clearly "might cast light" on Graves's and Palizzi's allegations that BNSF violated the ADA. Shell Oil, 466 U.S. at 69. Certainly, then, the very preliminary request at issue here - for information merely about how BNSF keeps electronic personnel data - also is relevant to the allegations in Graves's and Palizzi's charges. Cf. EEOC v. Fed. Express Corp., 558 F.3d 842, 855 (9th Cir. 2009) (affirming a district court order enforcing a very similar EEOC subpoena, reasoning that securing such information about a respondent's computerized recordkeeping is relevant to the EEOC's investigation because it "affords it an opportunity to determine what material 'might cast light on the allegations against the employer'") (quoting EEOC v. Lockheed Martin Corp., Aero & Naval Sys., 116 F.3d 110, 114 (4th Cir. 1997)). Given this record, the EEOC's subpoena is hardly "plainly incompetent" or "irrelevant to any lawful purpose." Univ. of N.M., 504 F.2d at 1303. Therefore, the district court abused its discretion in refusing to enforce the EEOC's subpoena as written. Of course, not every charge alleging only an isolated act of discrimination can serve as a legitimate springboard to subpoena information on possible systemic discrimination. The EEOC may not stray too far afield from the charge(s) in hand. The Commission certainly cannot expand an investigation or issue a nationwide subpoena based only on a hunch or unfounded speculation, for example. But the Commission did not do that here. Contrary to the district court's conclusion, the EEOC's subpoena did not "seek[] plenary discovery" of the sort the Supreme Court warned about in Shell Oil. In emphasizing that the Commission was not entitled to "plenary discovery," the Supreme Court was merely noting the distinction between agencies (such as the Federal Trade Commission) which are authorized to conduct investigations and issue subpoenas whether or not there has been any complaint of wrongdoing filed, and agencies (like the Commission) which can only issue a subpoena after a Title VII (or ADA) charge alleging wrongdoing has in fact been filed. See Shell Oil, 466 U.S. at 64, n.17. Here, there is no dispute that charges have been filed. The Commission thus has not sought "plenary discovery" in the Shell Oil sense. Moreover, wherever the outer boundaries of the EEOC's subpoena authority may lie, the subpoena issued in this case falls well within them. The district court ruled that the Commission's "demand for data on a nation-wide basis with two individual claims involving only applicants in Colorado is excessive." But in reaching this conclusion, the district court failed to acknowledge the evidence the EEOC proffered in support of its subpoena, suggesting a potentially far more pervasive discriminatory practice. The district court ignored that the Commission had received six separate charges filed against BNSF, all alleging the same type of disability-based discrimination. These charges were filed in five different states around the country. Five of these charges explicitly state that the same BNSF Medical Review Officer (Dr. Michael Jarrard) was involved in making the employment decision at issue. These charges provided sufficient information to put the Commission on notice of a possible company-wide policy or practice that may violate the ADA. Consequently, the Commission's decision to expand its investigation to include possible systemic discrimination - and to subpoena relevant information accordingly - is far from a "fishing expedition." Univ. of N.M., 504 F.2d at 1302. Given the information in the EEOC's possession, there simply is no danger that enforcing that subpoena will render the statutory relevance requirement a "nullity."<5> Shell Oil, 466 U.S. at 69. BNSF likely will argue alternatively on appeal (as it did below) that Graves and Palizzi were merely applicants for employment, and that the EEOC therefore is at most entitled to data about its applicants - not to any information about any BNSF employees. However, given this record, the Commission also can validly request information about current and former BNSF employees. The Texas charge the Commission received dealt specifically with an actual BNSF employee who was terminated after someone at BNSF determined that he never should have been hired in the first place (i.e., that he "slipped through the cracks"). The circumstances surrounding this decision appear strikingly similar to those involving BNSF's decision not to hire the applicants who filed charges in Colorado, Kansas, Minnesota, and Wyoming. Further, there is a question as to whether the individual who filed the charge in Wyoming also could fairly be characterized as an employee (given that the charging party was attending on-the- job training when BNSF told her there had been a "mistake" in hiring her). Therefore, it is reasonable for the Commission to suspect that BNSF may be applying its policy of screening out individuals with certain medical conditions to employees (as well as applicants), and to request relevant information accordingly. BNSF likely also will argue that the Commission is only entitled to information about the position of Conductor. This argument likewise is flawed. Graves and Palizzi did apply to be Conductors. But the way in which they were screened-out seems to be essentially the same as the way in which at least one person in Kansas was disqualified from a job as an Electrician Diesel Engine Mechanic, and as the way in which at least one person in Minnesota was rejected for a job as a Track Laborer. Thus, it was certainly reasonable for the Commission to conclude that BNSF may be applying its medical screening policy to positions other than just the job of Conductor. Finally, BNSF may argue that at most the Commission can only obtain information about positions in the Colorado division. But the Commission has now received charges filed in states all over the country, suggesting that BNSF is applying the same or a similar screen-out policy in places as far flung from Colorado as Kansas, Minnesota, Texas, and Wyoming. The same Medical Review Officer, Dr. Michael Jarrard, is involved in making these medical suitability decisions in at least four out of the five states. Further, correspondence from BNSF (e.g., position statements and responses to the Commission's initial RFI) regarding the Colorado charges came from BNSF human resources officials in New Mexico and Washington (as well as Colorado). Given these facts, it is reasonable for the Commission to suspect that BNSF may have company-wide policies or practices regarding medical screening of applicants and employees. Accordingly, the Commission should be able to request information about BNSF's recordkeeping practices nationwide. This Court's longstanding case law supports this view. In Circle K Corp., Inc. v. EEOC, 501 F.2d 1052 (10th Cir. 1974), an individual filed a charge alleging that the respondent-employer had refused to hire her because of her national origin. One of the steps in the hiring process apparently required applicants to take a polygraph examination. In investigating the charge - which appeared to allege an isolated instance of national origin discrimination - the EEOC "determined that certain information regarding Circle K's polygraph testing program was necessary." Id. at 1054. The Commission thus issued a subpoena seeking a list of all applicants and present employees subjected to the polygraph examination, their racial/ethnic identity, and whether they were accepted or rejected; documentation of the nature, standardization and validity of the polygraph test and a list of questions asked of each applicant; qualifications of the examiners who administered the tests; testimony under oath of all knowledgeable employees and officers; and "all related matters." Id. The district court refused to enforce the EEOC's request, reasoning that "the information sought was not relevant or material to the charge, and that the demand was burdensome and too broad as to geographic area and scope of inquiry." Id. This Court reversed. In a short ruling, the Court explained that "[i]n its investigatory role, the EEOC is entitled to require the charged party to disclose relevant and material information concerning the charged discriminatory practice." Circle K Corp., 501 F.2d at 1054. Notwithstanding that the charge in Circle K appeared to allege only a single act of discrimination occurring at one location, the Court disagreed that the subpoena was "too broad as to geographic area and scope of inquiry." Id. This Court quickly concluded that "the information sought is relevant to the EEOC investigation" and ordered the district court to enforce the Commission's request. Id. at 1055. Similarly, in Joslin Dry Goods Co. v. EEOC, 483 F.2d 178 (10th Cir. 1973), an individual filed a charge against a department store, alleging that the employer fired her because of her race or color. Her charge also alleged that the respondent "fails and refuses to hire Negroes and persons of Mexican ancestry." Id. at 180. The Commission issued a subpoena seeking detailed information about the hiring and firing of employees who worked at the store at which the charging party had worked and other stores in the department store chain. Id. at 180-81. The district court refused to enforce this subpoena, finding that the store at which the charging party had worked maintained its own separate personnel records, that there were no central employment records, "and that nothing in [the charging party's] charge or the pleadings suggested company-wide hiring and firing policies and practices." Id. at 182. On these facts, this Court affirmed the district court's ruling. However, in doing so, the Court relied on the fact that "each of the Joslin stores was a separate employing unit." Joslin Dry Goods, 483 F.2d at 184. Further, the Court pointed out, "[i]t was not shown that there were any hiring or firing practices and procedures applicable to all of the stores." Id. Thus, a logical reading of Joslin is that this Court would uphold a subpoena seeking company-wide data where - as in this appeal - there is evidence of company-wide practices and procedures. See, e.g., McAlester v. United Air Lines, Inc., 851 F.2d 1249, 1258 (10th Cir. 1988) (interpreting Joslin just this way, and distinguishing it in part on the basis that the policies or procedures at issue "apply throughout the company"). A recent case from the U.S. Court of Appeals for the Third Circuit also provides considerable support for the Commission's position that its subpoena is enforceable in full. In EEOC v. Kronos, 620 F.3d 287 (3d Cir. 2010), a charging party, who is hearing- and speech-impaired, had applied to work for a national supermarket chain at one of the chain's stores in West Virginia. Kronos, 620 F.3d at 292. The charging party applied to be a cashier, bagger, and stocker. Id. As part of the application process, the store required applicants to take a personality test. Id. The charging party took the test and, allegedly due to her speech impediment, did not score well. Id. The store relied in part on the charging party's performance on the test in deciding not to hire her. Id. at 293. The individual then filed a charge with the EEOC alleging that the store's refusal to hire her violated the ADA. Id. at 292. The charge contained no reference whatsoever to possible systemic/pattern-or-practice/class discrimination. The Commission informed the store chain that it was expanding its investigation to include possible systemic discrimination involving the chain's use of the test in hiring "for all facilities in the United States and its territories." Kronos, 620 F.3d at 293. The Commission issued a subpoena to the test's developer seeking (among other information) documents relating to the chain's use of the test and to any and all job analyses with respect to "any and all positions" at the chain. Id. at 294. After the developer refused to comply with this subpoena, the Commission filed an enforcement action in district court. Id. The district court refused to enforce the subpoena as issued, and ordered the developer to turn over information related only to the tests' use in West Virginia, and only to the positions of bagger, stocker, and/or cashier, specifically. Id. at 295. The Third Circuit reversed in relevant part. It recognized that the Commission "is entitled to information that may provide a useful context for evaluating employment practices under investigation . . . ." Kronos, 620 F.3d at 298 (internal quotation marks omitted). Noting that the statutory "relevance" requirement "is not particularly onerous," the Third Circuit reasoned that "[o]nce the EEOC begins an investigation, it is not required to ignore facts that support additional claims of discrimination if it uncovers such evidence during the course of a reasonable investigation of the charge." Id. at 296, 297 (citing Gen. Tel., 446 U.S. at 331). The test developer in Kronos had argued (like BNSF in this case) that the charge at issue was "completely devoid of any allegations of nationwide discrimination and discrimination in job positions other than those for which she applied." Kronos, 620 F.3d at 299. The Third Circuit rejected this as a basis for refusing to enforce the EEOC's subpoena, explaining that this argument: fails to recognize that the 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. Thus, the EEOC need not cabin its investigation to a literal reading of the allegations in the charge. . . . We decline Kronos's invitation to cabin the EEOC's investigation such that it is unable to access materials that meet the Shell Oil relevance standard - that is, materials that might cast light on [the] charge of discrimination. Id. The Third Circuit also rebuffed Kronos's attempt to prevent the EEOC from investigating other theories of discrimination not specified in the charge. Kronos had argued that because the charging party had only alleged "disparate treatment," the Commission could not subpoena any information that might shed light on whether the test at issue had a "disparate impact." Kronos, 620 F.3d at 300. The Third Circuit explained that the charge "does not contain a legal theory, nor was [the charging party] required to assert one." Id. Reasoning that "the individuals who draft charges are often not well vested in the art of legal description," the Third Circuit stressed that the scope of the original charge "should be liberally construed." Id. (internal quotation marks omitted). The Third Circuit also noted that the charging party may not have been fully aware of the scope of the discrimination at issue, and emphasized that "[i]n any event, it is up to the EEOC, not [the charging party], to investigate whether and under what legal theories discrimination might have occurred." Id.<6> Similarly, and even more recently, the U.S. Court of Appeals for the Seventh Circuit affirmed a district court order enforcing an EEOC subpoena seeking information about possible systemic discrimination even though the underlying charge contained no explicit pattern-or-practice or class allegations. In EEOC v. Konica Minolta Business Solutions, F.3d , 2011 WL 1602064 (7th Cir. 2011), an African American salesperson had worked for Konica at one of Konica's four Chicago-area facilities. The salesperson filed an EEOC charge alleging that his former employer had subjected him "to different terms and conditions of employment[,]" had treated him less favorably than a similarly-situated non-black co-worker, and had ultimately fired him because of his race. Konica, 2011 WL 1602064, at *1. Information the EEOC uncovered during its investigation of this charge led the Commission to suspect that Konica might be discriminating against African Americans at other Konica offices in and around Chicago in hiring and by assigning them to work on a race-segregated team and in primarily black neighborhoods. The EEOC thus issued a subpoena to Konica requesting records relating to the hiring of sales personnel at all four of Konica's Chicago-area locations. Konica refused to provide the information requested, apparently arguing (like BNSF in this case) that data about facilities other than the one at which the charging party had worked and about hiring discrimination simply was not "relevant" to that individual's charge. Id. at *1, 3. In affirming the district court's order requiring Konica to comply with the EEOC's subpoena, the Seventh Circuit found that Konica's "perspective is too narrow." Konica, 2011 WL 1602064, at *3. The Seventh Circuit reasoned that the relevant question under Shell Oil and its progeny is not whether the charging party specifically alleged discrimination in hiring (which he admittedly had not), but instead "whether information regarding Konica's hiring practices will 'cast light' on [his] race discrimination complaint." Id. The Court concluded it would. The Court explained that "[w]hen the EEOC investigates a charge of race discrimination for purposes of Title VII, it is authorized to consider whether the overall conditions in a workplace support the complaining employee's allegations." Id. Consequently, the Commission is empowered to subpoena "'evidence concerning employment practices other than those specifically charged by complainants' . . . ." Id. (quoting United Air Lines, 287 F.3d at 653). Moreover, the Seventh Circuit pointed out, the EEOC "is entitled generally to investigate employers within its jurisdiction to see if there is a prohibited pattern or practice of discrimination." Konica, 2011 WL 1602064, at *3. The Court determined that the charging party's allegation that he was treated less favorably with respect to "terms and conditions" of his employment could reasonably lead to an investigation of whether a larger pattern of discrimination was at work. Id. Accordingly, the EEOC's request for information about the bigger picture was a logical outgrowth of the charging party's individual charge. Indeed, the Seventh Circuit emphasized, the Commission "is required . . . to pursue all relevant leads to determine whether the charge warrants a lawsuit . . . ." Id. at *4 (emphasis added). In short, "[n]othing in the record suggested "that the EEOC has strayed so far from either [the charging party's] charge or its broader mission that it has embarked on the proverbial fishing expedition." Konica, 2011 WL 1602064, at *4. The Commission had a "realistic expectation rather than an idle hope" that information on Konica's hiring practices generally "will illuminate the facts and circumstances surrounding [the charging party's] allegations of race discrimination" specifically. Id. According to the Court, "whether Konica discriminates in hiring or in assigning employees to its various facilities will advance the agency's investigation into possible discrimination against [the individual charging party] based on his race, as well as any more general case [the EEOC] might choose to bring." Id. at *3. Thus, in both Kronos and Konica, different Courts of Appeals were quite comfortable requiring an employer to provide the Commission with information on possible systemic discrimination - even though the underlying charges were filed by a single individual and challenged only discrete personnel decisions made at one particular location. Similarly here, this Court should recognize that in appropriate circumstances, an EEOC subpoena stemming from a charge alleging individual discrimination can serve as a springboard for a request for information on a possible pattern or practice of discrimination. This Court need not decide the precise outer boundaries of this rule. Whatever the principle's parameters may be, they were certainly satisfied in this case. The EEOC has received ample evidence suggesting that BNSF may be engaged in a nationwide pattern or practice of screening out individuals from employment on the basis of disability. Under these circumstances, the subpoena the EEOC issued "relates" to an unlawful employment practice under the ADA and is "relevant" to the underlying charges. Accordingly, the district court's refusal to enforce the subpoena was an abuse of its discretion. CONCLUSION For the foregoing reasons, the EEOC respectfully requests that this Court reverse the district court's ruling and remand with an order requiring the district court to enforce the EEOC's subpoena as written. Respectfully submitted, P. DAVID LOPEZ General Counsel LORRAINE C. DAVIS Assistant General Counsel s/ Daniel T. Vail ______________________________ DANIEL T. VAIL Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, N.E. Room 5NW14P Washington, D.C. 20507 (202) 663-4571 (phone) (202) 663-7090 (fax) daniel.vail@eeoc.gov STATEMENT REGARDING ORAL ARGUMENT This appeal raises an issue of great importance - namely, whether the Commission must always possess or procure a charge specifically alleging pattern- or-practice discrimination before it may subpoena any information relevant to suspected systemic discrimination. The resolution of this issue will have a critical impact on the EEOC's efforts to enforce the ADA and other federal employment discrimination statutes. Accordingly, the EEOC believes that further exploration of this issue at oral argument is warranted, and would assist this Court in properly resolving this appeal. See Fed. R. App. P. 34(a)(1); see also 10th Cir. R. 28.2(c)(4). CERTIFICATE OF COMPLIANCE I certify that this brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 9,084 words excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). I certify that this brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2003 in Times New Roman 14 point. s/ Daniel T. Vail ______________________________ DANIEL T. VAIL Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, N.E. Room 5NW14P Washington, D.C. 20507 (202) 663-4571 (phone) (202) 663-7090 (fax) daniel.vail@eeoc.gov ECF CERTIFICATE I certify that: A. All required privacy redactions have been made; B. The hard copies of this brief submitted to the Clerk's office are exact copies of the ECF filing; and C. The ECF submission was scanned for viruses with TREND MICRO OfficeScan, OfficeScan Client version 10.5.1766, most recently updated on 5/24/2011. According to the program, this submission is free of viruses. s/ Daniel T. Vail ______________________________ DANIEL T. VAIL Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, N.E. Room 5NW14P Washington, D.C. 20507 (202) 663-4571 (phone) (202) 663-7090 (fax) daniel.vail@eeoc.gov ADDENDUM District Court's Oral Ruling Page 18 of Transcript of Show Cause Hearing Held on January 21, 2011 (R.10 at 18) CERTIFICATE OF SERVICE I certify that on May 25, 2011, I filed this Appellant's Opening Brief via the ECF system. I further certify that on May 25, 2011, I sent seven hard copies of this Appellant's Opening Brief by UPS for next-day delivery to: Elisabeth A. Shumaker Clerk of Court U.S. Court of Appeals for the Tenth Circuit Byron White U.S. Courthouse 1823 Stout Street Denver, CO 80257 I certify that on May 25, 2011, I served this Appellant's Opening Brief via the ECF system on Appellee BNSF Railway Company. I further certify that on May 25, 2011, I sent one hard copy of this Appellant's Opening Brief to Appellee BNSF Railway Company by UPS for next-day delivery to: Andrew David Ringel, Esq. Hall & Evans, LLC 1125 Seventeenth Street Suite 600 Denver, CO 80202 s/ Daniel T. Vail .S. EQUAL EMPLOYMENT ______________________________ OPPORTUNITY COMMISSION Office of General Counsel DANIEL T. VAIL 131 M Street, N.E., Room 5NW14P Attorney Washington, D.C. 20507 (202) 663-4571 (phone) (202) 663-7090 (fax) daniel.vail@eeoc.gov ********************************************************************************** <> <1> All references to "R. " are to the corresponding Docket Entry on the district court's docket sheet. All references to "AA " are to the corresponding page in the Appellant's (EEOC's) Appendix. <2> The RFI also asked BNSF to provide more details about such files including (1) the name of the file; (2) the name, model number, operating system, configuration and location of the mainframe or personal computer used to process the file and the name and version of the mainframe or personal computer software that is used to create, access, analyze, or produce reports from the files; (3) the date on which BNSF started using the file and, if the file is no longer used, the date it was discontinued (and the name of the predecessor and successor file, if any); (4) the medium on which the file is kept (e.g., tape, hard disk, or floppy diskette); (5) the name, title, department, business address and telephone number of the person who is responsible for maintaining and updating the procedure for collecting records and verifying the accuracy of them as they are entered into the file; (6) the approximate number of records on the file; (7) the name and commonly understood description of each data field or variable on the file; (8) file documentation, including file layout and field formats (if the file cannot be written into a comma delimited file, a data base file, or other commonly used software such as Excel); (9) the definition of all codes used in the file; (10) whether the file contains information on all of BNSF's employees (and if not, the categories of employees that have been excluded from the file); and (11) if the files are maintained by another entity under contractual arrangements, certain details about the contract. AA33-34. <3> The EEOC's investigation of this charge has now led the Commission to file a separate subpoena enforcement action against BNSF in the U.S. District Court for the District of Minnesota. See EEOC v. BNSF Railway Co., Docket No. 0:11-mc- 00019-JNE-JJG (D. Minn. filed Feb. 17, 2011). The information the EEOC is seeking in the subpoena at issue in the Minnesota proceeding is not the same as the data the Commission requested in the subpoena in this case. <4> The ADA incorporates the enforcement powers and procedures given to the Commission under Title VII. See 42 U.S.C. § 12117(a); see also Dillon, 310 F.3d at 1274. <5> For this reason, the Commission should not have been required to procure a Commissioner's charge explicitly alleging system discrimination, either (as BNSF urged below). Under such an approach, even if the Commission had in its possession twenty or fifty or even one-hundred charges filed by different employees against the same employer raising substantially identical (albeit individual) allegations, the EEOC still could not request information on a possible pattern or practice of discrimination unless it first got an EEOC Commissioner to issue yet another charge alleging the same violation. This would be a purely bureaucratic exercise, elevating form over substance. See, e.g., United Nuclear- Homestake Partners, 1972 WL 11550, at *2 (eschewing requirements that serve no purpose other than "'the creation of an additional procedural technicality'" and emphasizing that "the only rational approach is a non-technical one which is concerned not with the niceties of form but rather with the broad substantial objectives of [Title VII]") (quoting Love v. Pullman, 404 U.S. 522, 526-27 (1972)). <6> The Court in Kronos did reject the Commission's attempts to subpoena information related to whether the same test might have an adverse impact on the basis of race. See Kronos, 620 F.3d. at 300-301. However, the Court refused to categorically decide whether the EEOC has the authority to expand an investigation based on one statute to include possible violations of a different statute. See id. at 301 n.7. This issue is not presented in this case.