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 REPLY BRIEF OF THE PLAINTIFF-APPELLANT U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION P. DAVID LOPEZ General Counsel LORRAINE C. DAVIS Acting Associate 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 INTRODUCTION 1 ARGUMENT 2 CONCLUSION 29 CERTIFICATE OF COMPLIANCE C-1 ECF CERTIFICATE C-2 CERTIFICATE OF SERVICE C-3 TABLE OF AUTHORITIES Cases Blue Bell Boots, Inc. v. EEOC, 418 F.2d 355 (6th Cir. 1969) 13-14 Circle K Corp., Inc. v. EEOC, 501 F.2d 1052 (10th Cir. 1974) 3 Desert Palace Inc. v. Costa, 539 U.S. 90 (2003) 16 EEOC v. Assoc. Dry Goods Corp., 449 U.S. 590 (1981) 13 EEOC v. Astra, U.S.A, Inc., 94 F.3d 738 (1st Cir. 1996) 8 EEOC v. BNSF Ry. Co., No. 11-mc-0019 (JNE/JJG), 2011 WL 2261476 (D. Minn. May 17, 2011), report and recommendation adopted by 2011 WL 2223764 (D. Minn. June 8, 2011) 21, 22, 23 EEOC v. Cambridge Tile Mfg. Co., 590 F.2d 205 (6th Cir. 1979) 8 EEOC v. Citicorp Diners Club, Inc., 985 F.2d 1036 (10th Cir. 1993) 27 EEOC v. Delight Wholesale Co., 973 F.2d 664 (8th Cir. 1992) 8 EEOC v. Dillon Cos., Inc., 310 F.3d 1271 (10th Cir. 2002) 3, 4, 5, 19, 22-23 EEOC v. Fed. Express Corp., 558 F.3d 842 (9th Cir. 2009) 14-15 TABLE OF AUTHORITIES Cases EEOC v. Gen. Elec. Co., 532 F.2d 359 (4th Cir. 1976) 7, 9, 10, 17 EEOC v. Keco Indus., Inc., 748 F.2d 1097 (6th Cir. 1984) 11 EEOC v. Konica Minolta Bus. Solutions USA, Inc., 639 F.3d 366 (7th Cir. 2011) passim EEOC v. Kronos, Inc., 620 F.3d 287 (3d Cir. 2010) passim EEOC v. Occidental Life Ins. Co. of Cal., 535 F.2d 533 (9th Cir. 1976), aff'd, Occidental Life Ins. Co. of Cal. v. EEOC, 432 U.S. 355 (1977) 17 EEOC v. Patterson UTI Drilling, No. 09-cv-01562-PAB (D. Colo. Oct. 29, 2009) 9, 10 EEOC v. Recruit U.S.A., Inc., 939 F.2d 746 (9th Cir. 1991) 8 EEOC v. Schwan's Home Serv., 707 F. Supp. 2d 980 (D. Minn. 2010) 23 EEOC v. Schwan's Home Serv., 644 F.3d 742 (8th Cir. 2011) 23, 24 EEOC v. Sears, Roebuck & Co., No. 10-cv-00288-WDM-KMT, 2010 WL 2692169 (June 8, 2010) 10 EEOC v. Shell Oil Co., 466 U.S. 54 (1984) 3, 6, 13, 22 EEOC v. United Parcel Serv., 860 F.2d 372 (10th Cir. 1988) 15 TABLE OF AUTHORITIES Cases EEOC v. Univ. of N.M., 504 F.2d 1296 (10th Cir. 1974) 3 Gen. Tel. Co. of N.W., Inc. v. EEOC, 446 U.S. 318 (1980) 8-9 Joslin Dry Goods Co. v. EEOC, 483 F.2d 178 (10th Cir. 1973) 3, 25-26 Love v. Pullman Co., 404 U.S. 522 (1972) 17 Molybdenum Corp. of Am. v. EEOC, 457 F.2d 935 (10th Cir. 1972) 3 Newsome v. EEOC, 301 F.3d 227 (5th Cir. 2002) 11 Rich v. Martin Marietta Corp., 522 F.2d 333 (10th Cir. 1975) 13-14, 26 Univ. of Pa. v. EEOC, 493 U.S. 182 (1990) 6 Wheeler v. Hurdman, 825 F.2d 257 (10th Cir. 1987) 23 TABLE OF AUTHORITIES Statutes 42 U.S.C. § 2000e-5 9 42 U.S.C. § 2000e-5(b) 9 42 U.S.C. § 2000e-5(f) 9 42 U.S.C. § 2000e-8 9 42 U.S.C. § 2000e-8(a) 3 42 U.S.C. § 2000e-9 3 42 U.S.C. §§ 12101 et seq. 1 42 U.S.C. § 12117(a) 3 Rules 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 Miscellaneous I EEOC Compl. Manual, Section 24: Subpoenas (May 1992) 5-6 INTRODUCTION In its opening brief, the U.S. Equal Employment Opportunity Commission (the EEOC or Commission) argued that the district court abused its discretion in refusing to enforce the EEOC's subpoena. The EEOC explained that Gregory Graves and Thomas Palizzi each filed a charge with the Commission alleging that BNSF Railway Company (BNSF) had violated the Americans with Disabilities of 1990, as amended (the ADA), 42 U.S.C. §§ 12101 et seq., by refusing to hire them, on the basis of disability, as conductors in BNSF's Colorado division. The Commission explained that it also had received four other charges against BNSF, all alleging the same or a similar sort of disability-based discrimination. These other charges were filed in four different states around the country. Of the six total charges, at least five involve decisions made by BNSF's Medical Review Officer, Dr. Michael Jarrard. The EEOC further explained in its opening brief that it had expanded its investigation of Graves's and Palizzi's charges to include a possible nationwide pattern or practice of disability discrimination, and that it had notified BNSF of this expansion. The Commission simultaneously issued a subpoena to BNSF, requiring BNSF to identify any computerized files it had created or maintained from December 1, 2006, onward containing electronic data about BNSF's personnel activities, including data on applicants and current and/or former employees working throughout the United States. The EEOC argued that while neither Graves's nor Palizzi's charge alleged that BNSF had engaged in a pattern or practice of disability discrimination, the totality of the information in the Commission's possession - including evidence of the existence of other charges alleging similar acts of discrimination by BNSF - justified the EEOC's decision to expand its investigation and to subpoena relevant information accordingly. The district court disregarded these other charges in concluding that the Commission's subpoena was based merely on two charges alleging only individual ADA violations in Colorado. Thus, the district court committed reversible legal error in refusing to enforce the Commission's subpoena as written. ARGUMENT In its response brief, BNSF first contends that the Commission "simply fails to come to grips" with the fact that the district court's decision "is reviewed for an abuse of discretion, not de novo." BNSF Br. at 16 (emphasis in original). Of course, the Commission recognizes the appropriate standard of review, and identified it in its opening brief. See EEOC Br. at 18. But while the district court's discretion in deciding whether to enforce a Commission subpoena is broad, it is not boundless. This Court has on numerous occasions readily concluded that a district court had abused its discretion in refusing to enforce a Commission subpoena in part or in full. See, e.g., EEOC v. Dillon Cos., Inc., 310 F.3d 1271, 1278 (10th Cir. 2002); Circle K Corp., Inc. v. EEOC, 501 F.2d 1052, 1055 (10th Cir. 1974); Joslin Dry Goods Co. v. EEOC, 483 F.2d 178, 184 (10th Cir. 1973); cf. Molybdenum Corp. of Am. v. EEOC, 457 F.2d 935, 936 (10th Cir. 1972). As these decisions demonstrate, a district court's discretion must be exercised within well-established legal parameters. The Commission "shall . . . have access to any evidence of any person being investigated or proceeded against that relates to unlawful employment practices [under Title VII and the ADA] . . . and is relevant to the charge under investigation." 42 U.S.C. § 2000e-8(a) (emphasis added); see also 42 U.S.C. § 2000e-9 (providing subpoena power); 42 U.S.C. § 12117(a) (extending same authority for ADA charges). In EEOC v. Shell Oil Co., the Supreme Court explained 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." 466 U.S. 54, 68-69 (1984). This Court likewise has stated that this is the "[t]he sole limitation imposed upon the discovery procedures of the EEOC in the conduct of investigations triggered by charges . . . ." EEOC v. Univ. of N.M., 504 F.2d 1296, 1301 (10th Cir. 1974) (emphasis added). This Court has urged an expansive definition of "relevance" for these purposes, and has held that EEOC subpoenas should be enforced "unless they are plainly incompetent or irrelevant to any lawful purpose." See Dillon Cos., Inc., 310 F.3d at 1274, 1275. BNSF does not dispute these legal principles, but argues that the district court "acted well within its discretion in holding that the subpoena simply went too far given the allegations in the charges at issue." BNSF Br. at 13. But while BNSF accurately describes the district court's conclusion, it mischaracterizes its overall opinion. There is nothing in the district court's roughly five-sentence ruling to demonstrate, as BNSF conjectures, that the district court "considered all of the relevant circumstances." Id. at 19. Rather, the district court summarily concluded that two charges alleging only individual ADA violations in Colorado were on their own insufficient to justify the Commission's investigation of a possible pattern or practice of discrimination occurring on a nationwide basis. If the only evidence the EEOC had placed before the district court to justify the subpoena had been Graves's and Palizzi's charges, the Commission would agree. But that was not the only record proof the EEOC presented below. In concluding that the Commission was seeking "plenary discovery," the district court made no mention of the other charges the EEOC had received, focusing exclusively on Graves's and Palizzi's charges. See Appellant's Appendix (AA) 145. These other charges suggest that BNSF, in making employment decisions involving other positions, may have violated the ADA in the same or a similar manner in at least four other states (in addition to Colorado) across the country. The district court either inadvertently disregarded the EEOC's evidence, or concluded that it was insufficient to substantiate the subpoena as written. Either way, it abused its discretion. See Dillon Cos., Inc., 310 F.3d at 1275-76 (noting that if "the factual predicate" of a district court's subpoena-enforcement ruling is clearly erroneous, the ruling constitutes an abuse of discretion); EEOC v. Konica Minolta Bus. Solutions USA, Inc., 639 F.3d 366, 368, 371 (7th Cir. 2011) (finding that determining the scope of a charge for purposes of an EEOC subpoena- enforcement action is not a question of fact, but "a straight-forward question of law" reviewed de novo). BNSF argues that the "EEOC absolutely cannot rely on the other charges to support the administrative subpoena" here. BNSF Br. at 21 n.2. BNSF contends that it "repeatedly requested any and all bases for the scope of the EEOC's investigation" and objects that it "never had the opportunity to provide either this Court or the District Court with BNSF's perspective about the allegations made by the EEOC." Id. But BNSF must misunderstand the very purpose of the EEOC's investigation. The allegations in this case have not been "made by the EEOC[,]" as BNSF claims. At this stage of the proceedings, the Commission is merely an impartial investigator. See I EEOC Compl. Manual, Section 24: Subpoenas, at § 24.1(a) (May 1992) (explaining that the Commission is not "the charging party's advocate" and "seeks to obtain and objectively analyze all relevant data, including that which may not support [the] charging party's allegations") (emphasis added). As a neutral third-party, the Commission is not obligated to detail the evidentiary underpinnings for its information requests or subpoenas. See Univ. of Pa. v. EEOC, 493 U.S. 182, 194 (1990) (holding that requiring the EEOC to "demonstrate a 'specific reason for disclosure,' . . . beyond a showing of relevance, would place a substantial litigation-producing obstacle in the way of the Commission's efforts to investigate and remedy alleged discrimination"). As long as the subpoena meets the statutory test (as interpreted in Shell Oil), respondents like BNSF must comply with it. Here, the record before the district court has now made the grounds for the Commission's subpoena, and the relevance of the information requested, abundantly clear. More fundamentally, BNSF argues that EEOC's subpoena authority is literally "linked to - and limited by - the scope and validity of the charge of discrimination." BNSF Br. at 14. BNSF implies that "if in the course of a reasonable investigation the EEOC suspects another violation" it cannot "then expand the investigation to include the suspected violation without following the mandatory charge-filing process." Id. at 27 (emphases in original). However, as the EEOC explained at length in its opening brief, this is simply incorrect. It is well-established that the literal language in a charge does not dictate the outer boundaries of a permissible EEOC investigation of that charge. In the seminal case of EEOC v. General Electric Co., the U.S. Court of Appeals for the Fourth Circuit explained that a "charge is not to be treated as a common-law pleading that strictly cabins the investigation that results therefrom . . . ." 532 F.2d 359, 364 (4th Cir. 1976). According to the Fourth Circuit, "[i]f the EEOC uncovers during that investigation facts which support a charge of another [type of] discrimination [other] than that in the filed charge, it is neither obliged to cast a blind eye over such discrimination nor to sever those facts and the discrimination so shown from the investigation in process and file a Commissioner's charge thereon, thereby beginning again a repetitive investigation of the same facts already developed in the ongoing investigation." Id. at 365; see also id. at 366 n.9 (similarly suggesting that the Commission "need not confine itself to the particular symptom of discrimination identified by a charge if a reasonable investigation of that charge uncovers a root source of discrimination responsible for that and other violations") (internal citation omitted). Every other court of appeals to address this issue has ruled similarly. See, e.g., Konica, 639 F.3d at 369 (The "EEOC is authorized to subpoena evidence concerning employment practices other than those specifically charged by complainants in the course of its investigation.") (internal quotation marks and omitted); EEOC v. Kronos, Inc., 620 F.3d 287, 297 (3d Cir. 2010) (The EEOC "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."); EEOC v. Astra, U.S.A, Inc., 94 F.3d 738, 746 (1st Cir. 1996) (A charge "is capable of supporting an EEOC investigation into both the discrimination described in the charge itself and into the surrounding circumstances (including a full probing of any evidence of discriminatory practices unearthed during the course of the initial investigation)."); EEOC v. Delight Wholesale Co., 973 F.2d 664, 668 (8th Cir. 1992) ("The original charge is sufficient to support EEOC action, including a civil suit, for any discrimination stated in the charge or developed during the course of a reasonable investigation of the charge . . . ."); EEOC v. Recruit U.S.A., Inc., 939 F.2d 746, 756 (9th Cir. 1991) (The EEOC "must be permitted to investigate the full picture of [a respondent's] practices" and "[w]e therefore decline the companies' invitation to straitjacket the EEOC into an artificially narrow survey of [information]."); EEOC v. Cambridge Tile Mfg. Co., 590 F.2d 205, 206 (6th Cir. 1979) ("The powers granted to the EEOC under Title VII should not be narrowly interpreted, and we decline to hold that the EEOC is powerless to investigate a broader picture of discrimination which unfolds in the course of a reasonable investigation of a specific charge."); cf. Gen. Tel. Co. of N.W., Inc. v. EEOC, 446 U.S. 318, 331 (1980) (stating that the EEOC can 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] . . . .") (citing Gen. Elec. Co. with approval). In the face of this great weight of authority, BNSF musters merely two non- binding district court decisions. See BNSF Br. at 27-28. Both distinguish cases like General Electric Co. on dubious grounds. For instance, the district court in EEOC v. Patterson UTI Drilling, No. 09-cv-01562-PAB (D. Colo. Oct. 29, 2009), indicated that General Electric was distinguishable because it involved a class- action lawsuit. BNSF Supplemental Appendix (SA) 66. However, nothing in the General Electric opinion itself suggests that the fact that a class-action ultimately was certified in litigation was in any way dispositive, or even relevant, to the Fourth Circuit's conclusion that the Commission has the authority to expand its administrative investigation beyond the literal language in any given charge. Moreover, despite its musings on General Electric, the district court in Patterson UTI Drilling ultimately ordered the respondent to comply with the EEOC's nationwide subpoena (a fact BNSF neglects to mention). See SA67-68. The magistrate judge in EEOC v. Sears, Roebuck & Co., No. 10-cv-00288-WDM- KMT, 2010 WL 2692169 (June 8, 2010), relied on the opinion in Patterson UTI Drilling to conclude that General Electric was distinguishable. See 2010 WL 2692169, at *6. The reasoning in Sears is thus as questionable as the reasoning in Patterson UTI Drilling. Further, in Sears, only one individual had filed a charge of discrimination, and the magistrate judge concluded that there was "no other evidence of other similar discrimination allegations." 2010 WL 2692169, at *6. That is obviously not the case here. In fact, the EEOC is strongly encouraged to expand its investigation under these circumstances. See Gen. Elec. Co., 532 F.2d at 365 ("To cast a blanket over such facts in the ongoing proceedings would be a violation of the EEOC's statutory obligation in the area of employment discrimination."); Konica, 639 F.3d at 370 ("The Commission is required to investigate a person's charge of discrimination and pursue all relevant leads to determine whether the charge warrants a lawsuit.") (emphasis added). Here, the EEOC had ample information - numerous additional charges - suggesting that BNSF could be engaged in a possible pattern or practice of disability discrimination. The Commission was legally authorized to investigate accordingly, and it was pursuant to that lawful investigation that it served the nationwide subpoena in this case. BNSF claims "[i]t is highly questionable whether the EEOC can properly justify broad subpoena requests issued under the name of one charge with allegations made in another charge." BNSF Br. at 18; see also id. at 21 n.2. But there is nothing at all "questionable" about it. Nothing in law or logic suggests that an otherwise-proper expansion of an EEOC investigation becomes improper simply because the expansion was triggered by the receipt of other charges of discrimination - especially where, as here, the other charges have been filed against the same respondent, raise the same or similar allegations, and may all involve the same decisionmaker. BNSF also suggests that rather than simply cite these additional charges as support for its subpoena, the Commission should only be allowed to issue subpoenas technically in the name of these other charges. See id. at 18, 21 n.2. Of course, the EEOC could also have issued subpoenas explicitly in connection with these other charges, but nothing requires it to do so. Cf. Newsome v. EEOC, 301 F.3d 227, 231 (5th Cir. 2002) (explaining that "'the nature and extent of an EEOC investigation into a discrimination claim is a matter within the discretion of that agency'") (quoting EEOC v. Keco Indus., Inc., 748 F.2d 1097, 1100 (6th Cir. 1984)). And there is no compelling reason for any such requirement. On the contrary, there may be any number of valid investigative reasons for using one charge over another as a subpoena vehicle. Thus, while BNSF suggests that a district court will always be acting within the bounds of its discretion "in disallowing such an expansive approach," BNSF Br. at 18, the opposite is true. Since the EEOC can validly expand its investigation of one charge after having received other similar charges, a district court should exercise extreme caution in constraining the Commission from carrying out this legitimate law-enforcement function. Despite its initial denials, BNSF's real bottom line is that "[u]nless and until EEOC has a valid charge that includes pattern or practice allegations in it, there is nothing to make the broad national scope of the administrative subpoena 'relevant to the charge under investigation.'" Id. at 29. But BNSF reads "relevant" far too restrictively. To be "relevant" for these purposes, the information sought does not have to relate back to an explicit allegation or to precise language in the underlying charge. "Relevant" means just what it suggests - that the information sought bears some relationship to the charge in question. Thus, for example, courts have routinely recognized that information about general patterns of discrimination in a workplace are inherently "relevant" to specific allegations of individual discrimination at that workplace. See EEOC v. Assoc. Dry Goods Corp., 449 U.S. 590, 604 (1981) (recognizing that "[s]tatistics and other information about an employer's general practices may certainly be relevant to individual charges of discrimination"); see also Blue Bell Boots, Inc. v. EEOC, 418 F.2d 355, 358 (6th Cir. 1969) (cited with approval in Shell Oil, 466 U.S. at 69 n.20) (holding that an employer's general "pattern of action" is relevant to a reasonable-cause determination since "the existence of patterns of . . . racial discrimination in job classifications or hiring situations other than those of the complainants may well justify an inference that the practices complained of here were motivated by [discriminatory] factors" and that "evidence concerning employment practices other than those specifically charged by complainants may properly be considered by the Commission in framing a remedy" since "the Commission may, in the public interest, provide relief which goes beyond the limited interests of the charging parties"); see also Rich v. Martin Marietta Corp., 522 F.2d 333, 344 & n.6, 345 n.8 (10th Cir. 1975) (where this Court explained that "[t]he plaintiffs' requested information as to hiring, firing, promotion and demotion of blacks, Hispan[ic]s and women on a plant-wide basis and within individual departments was relevant in either an individual or class action") (twice citing Blue Bell Boots, Inc. with approval); Konica, 639 F.3d at 369 (recently citing Blue Bell Boots, Inc. with approval). BNSF argues that the Commission here "makes no effort" to explain how the information it has sought is "relevant" to Graves's and Palizzi's charges. BNSF Br. at 28. However, the Commission did do so. See EEOC Br. at 24-25, 38. Further, the relevance of this information should be fairly obvious. The Commission is seeking only preliminary data about the way BNSF maintains its electronic employment-related records about BNSF jobs throughout the country. The EEOC will then use this information to craft a carefully-tailored request (e.g., in terms of position and geography) for substantive information about the possible pattern or practice of disability discrimination (i.e., about the actual employment decisions or policies at issue). If a pattern or practice of disability discrimination at BNSF exists, the discrimination Graves and Palizzi allegedly suffered would appear to be a part of it. Thus, the information the EEOC is requesting is "relevant" to Graves's and Palizzi's charges. BNSF is incorrect to suggest, BNSF Br. at 38-39, that the Commission must secure a Commissioner's charge instead. BNSF wrongly contends that this "would only require the EEOC to follow the actual statutory language providing the EEOC with its investigatory authority." Id. at 39. Nothing in Title VII or the ADA makes a Commissioner's charge alleging a pattern or practice a prerequisite to a systemic investigation. Contrary to BNSF's contention, such a charge is not a "condition precedent to the agency's authority." Id.; cf. EEOC v. United Parcel Serv., 860 F.2d 372, 374-75 (10th Cir. 1988) (where this Court concluded that if an individual charging party settles his claim, the Commission can continue with its own suit on the same violation without first procuring a Commissioner's charge and starting the administrative process all over again). BNSF points to a number of courts that have "noted the EEOC's ability to expand its investigatory authority through the mechanism of a Commissioner's charge." BNSF Br. at 41 n.4. But just because the Commission could get a Commissioner's charge, does not mean that it should, much less that it must. None of the cases BNSF's cites can be read to require the Commission to secure a Commissioner's charge in a case like this (i.e., where the EEOC already has numerous other, albeit individual, charges alleging the same or substantially similar ADA violations across the country, most or potentially all involving the same company official). Indeed, forcing the EEOC to obtain yet another charge would border on the ridiculous. As the Commission explained in its opening brief, EEOC Br. at 27 n.5, by BNSF's logic, the EEOC could have one hundred charges all complaining about substantially identical - but individual - ADA violations, and that would still not be enough to support a systemic subpoena. Apparently, BNSF would insist on a charge containing "magic words" (like "systemic" or "pattern or practice" or "class" discrimination) before the Commission could subpoena appropriate information. BNSF's approach ignores the obvious: In a case like this one, the allegations in the other charges themselves are the evidence of a possible pattern or practice of disability discrimination. No "magic words" put into any particular individual charge are inherently more probative on this point. Cf. Desert Palace Inc. v. Costa, 539 U.S. 90, 100 (2003) (explaining that in employment discrimination cases "circumstantial evidence is not only sufficient, but may also be more certain, satisfying and persuasive than direct evidence") (internal quotation marks omitted). And in an era of scarce governmental resources and dwindling agency budgets, such an approach would be impractical at best, and antithetical to robust law-enforcement at worst. The Fourth Circuit in General Electric Co. long ago recognized that if the EEOC uncovers additional allegations not mentioned in the original charge, it "should not sever those facts and the discrimination so shown from the investigation in process and file a Commissioner's charge thereon, thereby beginning again a repetitive investigation of the same facts already developed in the ongoing investigation." Gen. Elec. Co., 532 F.2d at 365. "To require a new charge based on those facts and to begin again the administrative process thereon, would result in an inexcusable waste of valuable administrative resources and an intolerable delay in the enforcement of rights which require a 'timely and effective remedy'" and "would be simply a useless exercise in technical nicety." Id. (internal footnote omitted); see also EEOC v. Occidental Life Ins. Co. of Cal., 535 F.2d 533, 542 (9th Cir. 1976), aff'd, Occidental Life Ins. Co. of Cal. v. EEOC, 432 U.S. 355 (1977) (Requiring a new charge "would be to champion form over substance.") (citing Gen. Elec. Co.); cf. Love v. Pullman Co., 404 U.S. 522, 526 (1972) (explaining, in a similar context, that this "would serve no purpose other than the creation of an additional procedural technicality"). As the EEOC pointed out in its opening brief, recent decisions from other courts of appeals strongly support the Commission's position that no new charge explicitly alleging a pattern or practice of discrimination is required in a case like this. See EEOC Br. at 31-38. BNSF's attempts to distinguish these recent rulings are unavailing. For example, BNSF discounts the ruling by the U.S. Court of Appeals for the Third Circuit in Kronos by claiming that nothing in that opinion "suggests the charge [there] did not have any pattern or practice allegations in it." BNSF Br. at 32. BNSF should know better. The Third Circuit's decision summarized the charge at issue, noting that an individual charging party "alleged that Kroger did not hire her because of her disability" and that her charge stated that a Kroger official "told me that I would not be a good fit for any openings because of the way that I speak" and thus "den[ied] me employment . . . ." Kronos, 620 F.3d at 292 (emphases added). Further, according to the opinion, Kronos had specifically argued - like BNSF is arguing here - that "the EEOC is not entitled to the information it seeks because [the individual charging party's] charge is completely devoid of any allegations of nationwide discrimination and discrimination in job positions other than those for which she applied." Id. at 299. Kronos could not and likely would not have made such an argument if the charge had had pattern-or- practice allegations in it. More to the point, the Third Circuit chastised Kronos for making this argument anyway, concluding that it "fails to recognize that the EEOC's investigatory power is broader than the four corners of the charge" and "encompasses not only the factual allegations contained in the charge, but also any information that is relevant to the charge." Id. Accordingly, the Third Circuit ruled, "the EEOC need not cabin its investigation to a literal reading of the allegations in the charge." Id. Even though it was beyond dispute that the charge in Kronos contained no pattern-or-practice allegations whatsoever, the Third Circuit nevertheless found that the district court abused its discretion in refusing to enforce the Commission's subpoena requesting information about a possible pattern or practice of disability discrimination. Indeed, after citing this Court's decision in Dillon Cos., Inc., the Third Circuit in Kronos found that nationwide information was "relevant" to the individual charge at issue. 620 F.3d at 296 (citing Dillon Cos., Inc., 310 F.3d at 1274); id. at 298, 297 (acknowledging that the "EEOC is entitled to information that 'may provide a useful context' for evaluating employment practices under investigation, in particular when such information constitutes comparison data" and that the "District Court applied too restrictive a standard of relevance in limiting the information related to geography, time, and job position."). The same should be true in this case. BNSF also attempts to distinguish the recent ruling from the U.S. Court of Appeals for the Seventh Circuit in Konica because the charge at issue there allegedly did contain pattern-or-practice allegations. See BNSF Br. at 34-35. However, the individual charging party had alleged merely (like the charging party in Kronos) that "my Branch Manager has subjected me to different terms and conditions of employment[,]" that "I was disciplined for not meeting sales quotas, whereas a non-Black similarly situated co-worker was not disciplined for not meeting his quota[,]" and that "I was discharged." Konica, 639 F.3d at 367 (emphases added). Thus, the actual charge contained no systemic allegations of any kind. To be sure, the Seventh Circuit nevertheless construed this charge as alleging a "pattern of race discrimination." Id. at 369. But it apparently reached this conclusion because the individual charging party himself had suffered multiple acts of race discrimination. Id. (describing this "pattern" as the charging party's assertion "that he was treated differently from white co-workers in the 'terms and conditions' of his employment, and that he was unequally disciplined for not meeting a sales quota"). Similarly, in this case, the Commission has uncovered allegations that BNSF has committed numerous, albeit individual, acts of disability discrimination. As in Konica, this suggests a possible "pattern" of discrimination justifying the Commission's decision to expand its investigation and subpoena relevant information accordingly. Indeed, as the Seventh Circuit succinctly put it (in ruling that information about practices not specifically alleged in the charge was nonetheless "relevant" to an investigation of that charge), the "Commission is entitled generally to investigate employers within its jurisdiction to see if there is a prohibited pattern or practice of discrimination." Id. So, too, here. In trying to distinguish Kronos and Konica, BNSF also relies on a ruling by the U.S. District Court for the District of Minnesota. See BNSF Br. at 33-35; see also EEOC v. BNSF Ry. Co., No. 11-mc-0019 (JNE/JJG), 2011 WL 2261476 (D. Minn. May 17, 2011), report and recommendation adopted by 2011 WL 2223764 (D. Minn. June 8, 2011). Of course, that Minnesota district court's ruling is not binding on this Court. Cf. 2011 WL 2261476, at *4. Further, its opinion there relies on the same erroneous reasoning contained in the district court ruling under review here. See id. ("Both subpoenas seek pervasive discovery extending far beyond the allegations of the charges, which do not so much as hint at a pattern or practice of discrimination."). For instance, the district court in Minnesota, like BNSF, distinguishes Konica on the grounds that that case dealt with a "pattern of discrimination." Id. at *6. As just discussed, however, the type of "pattern" of discrimination alleged in Konica actually supports the Commission's claim that its subpoena here should be enforced. The district court in Minnesota distinguished Kronos on the grounds that that case involved a standardized test used nationwide to disqualify job applicants, while the subpoena at issue in the Minnesota proceeding "involve[d] personalized and discrete decisions made on a case-by-case basis." Id. at *5. BNSF argues similarly. BNSF Br. at 11; see also id. at 47 n.6. Yet nothing in the Third Circuit's opinion in Kronos establishes that this factor (i.e., that the Commission was seeking information about a standardized test) influenced its reasoning, much less that it was dispositive to its ruling. In fact, the original charge in Kronos makes no mention of this standardized test. See 620 F.3d at 292. Moreover, and more fundamentally, the EEOC does not - cannot - really know at this very preliminary phase of its investigation whether there is a policy or practice at BNSF of screening out applicants and employees in a manner that violates the ADA, or whether BNSF has, as it contends, simply made a series of lawful individualized, unconnected hiring decisions instead. Figuring that out is the very point of the Commission's investigation in the first place. See, e.g., Shell Oil, 466 U.S. at 71 (finding the Commission should not have to substantiate charge allegations "before [it] initiates an investigation, the purpose of which is to determine whether there is reason to believe those allegations are true") (emphasis in original). Surely, at this summary subpoena-enforcement stage, neither the Commission nor this Court should be expected to simply take BNSF at its word on these dispositive factual and legal conclusions. See id. at 72 n. 26 (stressing that the district court's role in a subpoena-enforcement action is "to satisfy itself that the charge is valid and the material requested is 'relevant' to the charge"); Dillon Cos., Inc., 310 F.3d at 1277 (explaining that a merits question like this is a "context-specific inquiry that cannot be resolved in an informational vacuum, based only on the say-so of the employer" and holding that this Court will not "either encourage or allow an employer to turn a summary subpoena-enforcement proceeding into a mini-trial by allowing it to interpose defenses that are more properly addressed at trial"); cf. Wheeler v. Hurdman, 825 F.2d 257, 264 n.14 (10th Cir. 1987) (similarly noting that a subpoena-enforcement action is "not the proper forum in which to litigate the question of coverage under a particular federal statute") (internal citations and quotation marks omitted). BNSF and the district court in Minnesota thus have put the proverbial cart before the horse. Interestingly, though, even the district court in Minnesota indicated that it might have upheld the EEOC's request for pattern-or-practice information if there had been - as there is in this case - "multiple charges alleging the same type of discrimination." See BNSF Ry. Co., 2011 WL 2261476, at *5. The district court in Minnesota cited EEOC v. Schwan's Home Service, 707 F. Supp. 2d 980, 984 (D. Minn. 2010), in support. The respondent in Schwan's appealed the district court's ruling enforcing the Commission's subpoena, and the U.S. Court of Appeals for the Eighth Circuit has just very recently issued its opinion affirming the district court's decision. See EEOC v. Schwan's Home Serv., 644 F.3d 742 (8th Cir. 2011). The Eighth Circuit's decision is now only the most recent in a string of court of appeals rulings (including Kronos and Konica) reaffirming the Commission's broad right to relevant evidence about possible pattern-or-practice discrimination. BNSF, not surprisingly, downplays the Eighth Circuit's ruling. See BNSF Br. at 35-37. However, any way one reads it, the decision is an unequivocal endorsement of the EEOC's main argument in this appeal. According to the Eighth Circuit, if an EEOC investigation into a "charge of individual gender discrimination reveal[s] potential systemic gender discrimination, the EEOC ha[s] the authority to subpoena information relevant to systemic gender discrimination even absent a valid systemic charge . . . ." Schwan's, 644 F.3d at 748 (emphasis added). That is of course exactly what the EEOC has been arguing in this case all along. The district court here committed reversible legal error in ruling otherwise. Finally, BNSF argues - just as the Commission anticipated in its opening brief that it would, EEOC Br. at 27 - that at the least the subpoena "must be modified to focus on applicants for Conductor positions in BNSF's Colorado Division, and not for computerized data related to current or former employees of BNSF throughout the United States for the past five years." BNSF Br. at 11; see also id. at 43-49. However, for all the reasons the Commission already provided in its opening brief, EEOC Br. at 27-38, BNSF is incorrect. BNSF alleges that the Commission "rel[ies] exclusively" on the Texas charge in support of the EEOC's request for information about employees. BNSF Br. at 45. Yet the Commission also noted that the Wyoming charge, too, suggests that BNSF may be applying discriminatory criteria to its employees (as well as applicants). See EEOC Br. at 28. More importantly, the Commission's request for information about employees and former employees stems from simple common sense: If BNSF is screening out applicants for employment based on alleged safety criteria that violate the ADA, there is no reason to think it would not also subject current employees to the same criteria. Indeed, BNSF itself stresses that its vision of an accident- and injury-free workplace is achieved "through a culture that makes safety the company's highest priority and provides continuous self-examination by BNSF as to the effectiveness of its safety processes and performance." BNSF Br. at 3. And, quite obviously, information about former employees would illuminate whether BNSF has in fact discharged other employees for the same or similar reasons that it is refusing to hire them in the first place. Cf. Joslin, 483 F.2d at 184 (explaining that "[t]he factual statement of a wrongful discharge is enough to justify an investigation of employment practices and policies, as to hiring as well as to firing" and "was sufficient to initiate the discovery procedures contemplated by the statutes"); Konica, 639 F.3d at 369-70 (recognizing the relevance of information about an employer's hiring practices to a charge alleging a discriminatory firing, since the question is not whether the charge explicitly alleged discrimination in hiring but whether such information could "cast light" on the practices that were alleged). Indeed, the charging party in the Texas charge is a former employee (e.g., he was discharged after being told he never should have been hired in the first place). See EEOC Br. at 27; AA12. BNSF also alleges that "at best, EEOC could conceivably be entitled to information related to applicants for Conductor, Track Laborer and Electrician Diesel Mechanic, and nothing more." BNSF Br. at 48. Again, BNSF's "perspective is too narrow." Konica, 639 F.3d at 369. While the charges in hand may only relate explicitly to those positions, it would make no sense at this point for the Commission to limit its preliminary inquiry to just those jobs. Cf. Martin Marietta Corp., 522 F.2d at 345 n.8 (finding that "the existence of patterns of racial discrimination in job classifications or hiring situations other than those of the complainants may well justify an inference that the practices complained of here were motivated by racial factors"). Indeed, BNSF in this case has not provided the Commission with any information to establish that it is not applying similar safety criteria to all jobs nationwide. BNSF also attempts to restrict the Commission's investigation to information about positions in Colorado only. BNSF relies on this Court's decision in EEOC v. Citicorp Diners Club, Inc., 985 F.2d 1036 (10th Cir. 1993), in support. BNSF Br. at 48-49. To be sure, the district court in Diner's Club refused to enforce the portion of the Commission's subpoena requesting nationwide data, and limited the EEOC's request to information related only to the location at which the charging party worked. See 985 F.2d at 1038. However, on appeal this Court did not address whether that part of the district court's ruling was correct. Thus, this Court's decision in Diner's Club stands as no bar to the Commission's position here. Further, in Diner's Club, there was but a single charge alleging a discrete Title VII violation in only one company location. Id. at 1037. Here, by stark contrast, the Commission has six charges suggesting that BNSF could be violating the ADA in the same or similar manner in at least five states - approximately twenty-five percent of the total states in which BNSF operates. See BNSF Br. at 49 (noting that BNSF operates in twenty-eight states). While BNSF asserts that translating these charges "into a request for nationwide data makes no sense[,]" id. at 48, the opposite is true. Again, BNSF has provided no information to the Commission to establish that it is not applying the same potentially illegal criteria everywhere it operates. And after all, if, as BNSF contends, its emphasis on safety is so ingrained in its corporate culture, the Commission has every reason to surmise that BNSF applies whatever practice it implements to achieve this goal nationwide. Moreover, while BNSF decries the Commission's allegedly onerous request for nationwide data, id. at 49, it never really acknowledges that the EEOC has only requested preliminary information about how BNSF maintains its data electronically. That is a far cry from asking BNSF, for example, to produce all of the underlying substantive data for all 40,000 of its employees in every position in every state in which BNSF operates. Id. Despite what BNSF implies, that is not at all what the Commission subpoenaed here. In short, there is no reason to allow the district court to reconsider the scope of the subpoena in the first instance, as BNSF suggests. See id. at 43 & n.5. BNSF has never argued in this case that supplying the basic electronic data requested would somehow impose an undue burden, and it thus has waived its right to argue that now. See Konica, 639 F.3d at 371 (explaining that "[a] court can modify or exclude portions of a subpoena only if the employer carries the difficult burden of showing that the demands are unduly burdensome or unreasonably broad" and "[t]hough Konica spared no effort in arguing for a narrow construction of Thompson's charge, it failed adequately to develop its argument that compliance with the subpoena would constitute an undue burden") (internal quotation marks omitted). There is nothing left for the district court to do on remand but enforce the EEOC's subpoena as written. 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 in full. Respectfully submitted, P. DAVID LOPEZ General Counsel LORRAINE C. DAVIS Acting Associate 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 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 6,995 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 8/21/2011. 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 CERTIFICATE OF SERVICE I certify that on August 22, 2011, I filed this Appellant's Reply Brief via the ECF system. I further certify that on August 22, 2011, I sent seven hard copies of this Appellant's Reply 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 August 22, 2011, I served this Appellant's Reply Brief via the ECF system on Appellee BNSF Railway Company. I further certify that on August 22, 2011, I sent one hard copy of this Appellant's Reply 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 U.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 BNSF asserts that the Commission "dramatically over reads General Telephone," stating that it "and cases like it concern only the EEOC's enforcement authority [42 U.S.C. § 2000e-5] and have no bearing on the scope of the agency's authority to investigate § 2000e-8." BNSF Br. at 27, 28. BNSF misreads Title VII. The Commission's "enforcement authority," conveyed in § 2000e-5, not only includes the authority to investigate, but also requires the EEOC to "make an investigation" of all charges it receives. The investigative tools detailed in § 2000e-8 merely amplify this investigative authority from § 2000e-5. And the Commission relies on General Telephone for the obvious proposition that if it can sue a respondent over allegations not contained in a charge, then surely it must be able to investigate those allegations first. Indeed, before the EEOC can file its own merits suit on a claim, it must investigate (and conciliate) it. See 42 U.S.C. §§ 2000e-5(b), (f). BNSF at first asserts that "the District Court's ruling simply does not present th[i]s weighty issue the EEOC chooses to focus on in its brief." BNSF Br. at 18. However, BNSF raised this issue repeatedly below, even telling the district court at the show-cause hearing that it was "the issue before the court." AA131 (emphasis added); see also AA38, AA46-48, AA108, AA109, AA111-17, AA132. In fact, BNSF eventually acknowledges that the district court's decision is best read to require the Commission to have a charge explicitly alleging a pattern or practice of discrimination before subpoenaing related information. See BNSF Br. at 22. BNSF suggests, counter-intuitively, that the EEOC's very basic and preliminary request for information about BNSF's electronic data practices made the subpoena somehow less enforceable. See BNSF Br. at 17 (speculating the district court concluded this led the subpoena to be "further removed from the allegations of individualized discrimination contained in the charges"). Of course, as the Commission explained to the district court and this Court, EEOC Br. at 12, AA90, AA142-43, this preliminary data request is issued first, specifically to ensure that the EEOC does not ask for unduly burdensome substantive information from the get-go. Cf. EEOC v. Fed. Express Corp., 558 F.3d 842, 855 (9th Cir. 2009) (affirming a district court order enforcing a similar EEOC subpoena, reasoning that it "need not request only evidence that is specifically relevant to proving discrimination[]" but can also request information relevant to the investigation itself; concluding that "by requesting identification of computerized files instead of the files themselves, [the Commission] has refrained from imposing on [the respondent] an overbroad request") (internal quotation marks omitted). BNSF argues that the charging party in Schwan's, unlike Graves and Palizzi here, herself subsequently "made systemic allegations" justifying the systemic subpoena. BNSF Br. at 37. But those allegations were not made in the original charge in Schwan's; they came out during the EEOC's investigation of that charge. See Schwan's, 644 F.3d at 745. Similarly here, the EEOC has discovered other, similar allegations while investigating Graves's and Palizzi's charges. 1 v 29 C-1 C-2 C-3