______________________________________ No. 11-1121 ______________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT ______________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. BURLINGTON NORTHERN SANTA FE RAILROAD, n/k/a 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 ____________________________________________________ PETITION OF APPELLANT EQUAL EMPLOYMENT OPPORTUNITY COMMISSION FOR REHEARING AND SUGGESTION FOR REHEARING EN BANC ____________________________________________________ P. DAVID LOPEZ EQUAL EMPLOYMENT General Counsel OPPORTUNITY COMMISSION LORRAINE C. DAVIS Office of General Counsel Acting Associate General Counsel 131 M Street, NE, Room 5SW24L DANIEL T. VAIL Washington, DC 20507 Acting Assistant General Counsel (202) 663-4055 GAIL S. COLEMAN gail.coleman@eeoc.gov Attorney TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . iii SUGGESTION FOR REHEARING EN BANC . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE ISSUE . . . . . . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . 2 A. Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . 2 B. Panel Decision . . . . . . . . . . . . . . . . . . . . . . . . 4 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 The panel’s decision departs from longstanding legal standards on EEOC subpoenas and, left unaltered, will unduly constrict the EEOC’s ability to gather the “relevant” information it needs to fulfill its Congressionally mandated law-enforcement function. . . . . . . 5 A. The EEOC is entitled to virtually any evidence that might shed light on a charging party’s allegations, including evidence of potentially related systemic discrimination. . . . . . 6 B. When reasonable evidence suggests that an individual charge may be connected to a broader pattern or practice of discrimination, the EEOC need not obtain a Commissioner’s charge to investigate the possibility of related, widespread illegality . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 C. When an EEOC subpoena seeks relevant information, a court must enforce it whether or not the EEOC convinced the employer during the administrative process that the subpoena is valid. . . . . . . . . . . . . . . . . . . . . . . . .13 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 ADDENDUM: Panel Opinion ECF CERTIFICATE CERTIFICATE OF SERVICE TABLE OF AUTHORITIES Cases Circle K Corp. v. EEOC, 501 F.2d 1052 (10th Cir. 1974) . . . . . . . . .1, 9 EEOC v. Assoc. Dry Goods Corp., 449 U.S. 590 (1981) . . . . . . . . . . . .7 EEOC v. Dillon Cos., 310 F.3d 1271 (10th Cir. 2002) . . . . . . . . . 1, 6 EEOC v. General Elec. Co., 532 F.2d 359 (4th Cir. 1976) . . . . . . . . . 12 EEOC v. Konica Minolta Bus. Solutions USA, Inc., 639 F.3d 366 (7th Cir. 2011) . . . . . . . . . . . . . . . . . . . . . 1, 10 EEOC v. Kronos, Inc., 620 F.3d 287 (3d Cir. 2010) . . . . . . . . . . .1, 10 EEOC v. Occidental Life Ins. Co. of Cal., 535 F.2d 533 (9th Cir. 1976) . .13 EEOC v. Schwan’s Home Serv., 644 F.3d 742 (8th Cir. 2011). . . . . . 1, 10 EEOC v. Shell Oil Co., 466 U.S. 54 (1984). . . . . . . . . . . .1, 6, 13, 14 EEOC v. Univ. of New Mexico, 504 F.2d 1296 (10th Cir. 1974). . . 1, 7, 9, 13 EEOC v. UPMC, No. 11-2869, 2012 WL 1010856 (3d Cir. Mar. 27, 2012) (unpublished) . . . . . . . . . . . . . . . . . . 10 Joslin Dry Goods v. EEOC, 483 F.2d 178 (10th Cir. 1973). . . . . . . . .1, 9 Rich v. Martin Marietta Corp., 522 F.2d 333 (10th Cir. 1975). . . . . . 1, 8 United Nuclear-Homestake Partners v. EEOC, Nos. 668-70 & 660-70, 1972 WL 11550 (10th Cir. June 14, 1972) (en banc) (unpublished). . . . . . 9 Statutes Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. . . . . . . . .2 § 12117(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6 Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. 42 U.S.C. § 2000e-8(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Rules and Regulations 29 C.F.R. § 1601.16(b)(2). . . . . . . . . . . . . . . . . . . . . . . . 12 Fed. R. App. P. 35(a)-(b) . . . . . . . . . . . . . . . . . . . . . . . . 2 SUGGESTION FOR REHEARING EN BANC The decision by the panel of this Court misapprehends the scope of the EEOC’s investigative authority and will impede the EEOC’s law-enforcement function. The issues raised by this appeal thus are of exceptional importance. By deeming evidence of possible systemic discrimination irrelevant to an individual charge of discrimination, the panel’s decision defines “relevance” in a way that conflicts with the Supreme Court’s decision in EEOC v. Shell Oil Co., 466 U.S. 54 (1984), and with decisions of this Court including EEOC v. Dillon Cos., 310 F.3d 1271 (10th Cir. 2002); Rich v. Martin Marietta Corp., 522 F.2d 333 (10th Cir. 1975); EEOC v. University of New Mexico, 504 F.2d 1296 (10th Cir. 1974); Circle K Corp. v. EEOC, 501 F.2d 1052 (10th Cir. 1974); and Joslin Dry Goods v. EEOC, 483 F.2d 178 (10th Cir. 1973). Further, the panel’s decision also deviates from recent decisions of other courts of appeals allowing individual charges of discrimination to support expanded investigations when evidence is uncovered suggesting that the allegations raised in an individual charge could be connected to broader, systemic discrimination. See EEOC v. Schwan’s Home Serv., 644 F.3d 742 (8th Cir. 2011); EEOC v. Konica Minolta Bus. Solutions USA, Inc., 639 F.3d 366 (7th Cir. 2011); EEOC v. Kronos, Inc., 620 F.3d 287 (3d Cir. 2010). Accordingly, the EEOC respectfully requests panel rehearing or rehearing en banc. See generally Fed. R. App. P. 35(a)-(b) (standards for rehearing en banc). STATEMENT OF THE ISSUE Can the EEOC subpoena information about a possible pattern or practice of discrimination where its investigation of individual charges has revealed that others all over the country also have filed charges alleging similar acts of discrimination involving the same decisionmaker? STATEMENT OF THE CASE A. Statement of Facts In 2007, Gregory Graves and Thomas Palizzi filed separate charges with the EEOC’s Denver Field Office alleging that BNSF had discriminated on the basis of disability in violation of the Americans with Disabilities Act (“ADA”). See 42 U.S.C. §§ 12101 et seq. Each alleged that BNSF had refused to hire him as a conductor trainee after BNSF’s medical officer in Fort Worth, Texas, Dr. Michael Jarrard, had determined that he posed a significant risk of injury to self or others. (R.1-2, Graves Charge; R.1-5, Palizzi Charge.) In addition to Graves’s and Palizzi’s charges, EEOC’s investigative files contained other charges against BNSF from Wyoming, Texas, Minnesota, and Kansas alleging similar disability discrimination. The other parties were denied jobs ranging from conductor trainee to track laborer to electrician diesel engine mechanic. Like Graves and Palizzi, most of the other charging parties expressly implicated Dr. Jarrard as a key BNSF decisionmaker. (R.1-1, Sienko Decl. at 4-6.) Suspecting that BNSF might have a centralized decisionmaking process excluding individuals with disabilities from certain jobs regardless of their ability to perform the essential functions of the job, the EEOC considered that Graves and Palizzi may have been rejected as part of a larger pattern or practice of discrimination. If Dr. Jarrard did, in fact, believe that all applicants with disabilities were unfit for certain positions, he would not have considered the suitability of Graves, Palizzi, or any other disabled applicant individually. Discrimination against any particular charging party because of disability would, in these circumstances, be a result of class discrimination as well. The EEOC served BNSF with a request for information concerning the manner in which BNSF stored electronic data for its applicants and employees throughout the United States as a prelude to serving a focused request for substantive information. (R.1-8, EEOC letter.) BNSF refused to provide the information (R.1-10, BNSF letter), and the EEOC issued a subpoena to get it. (R.1-11, Subpoena.) BNSF filed a petition to revoke or modify the subpoena (R.1-13), which the EEOC’s Commissioners reviewed and denied. (R.1-14, Final Determ.) The EEOC then filed this enforcement action. (R.1, App. for Order.) The district court denied enforcement. (R.8, Minutes.) Calling the subpoena “pervasive” and characterizing it as seeking “plenary discovery,” the district court emphasized that neither Graves nor Palizzi had alleged a pattern or practice of discrimination. “The demand for data on a nationwide basis with two individual claims involving only applicants in Colorado is excessive,” the court said. “And while wide deference to administrative inquiries and investigations – wide deference to the scope of the subpoenas is given, it does not transcend the gap between the pattern and practice investigation and the private claims that have been shown here.” (R.10, Tr. at 18.) B. Panel Decision The panel affirmed the district court’s refusal to enforce the subpoena. (Slip Op. at 10.) Acknowledging that “the EEOC may access ‘any evidence of any person being investigated’ so long as that evidence ‘relates to unlawful employment practices . . . and is relevant to the charge under investigation’” (id. at 5), the panel nevertheless focused on the EEOC’s failure to mention or describe the additional charges to BNSF earlier in the administrative process. (Id. at 6.) The panel also characterized the EEOC’s request for information as “incredibly broad.” (Id. at 7.) “Any act of discrimination could be part of a pattern or practice of discrimination,” the panel stated, “but not every charge of discrimination warrants a pattern or practice investigation.” (Id. (emphasis in original).) The panel rejected the EEOC’s argument that evidence of Dr. Jarrard’s consistent involvement suggested a nationwide pattern or practice on the ground that “only the charges filed by Mr. Graves and Mr. Palizzi were ‘the charge[s] under investigation.’” (Id. at 8 n.3.) Rejecting a conception of disability discrimination as class discrimination, the panel faulted the EEOC for not focusing solely on the individual allegations raised by Graves and Palizzi. (Id. at 9.) The panel noted that if the EEOC “ascertains some violation warranting a broader investigation” it then would be allowed to “expand its search.” (Id.) The panel concluded that “nothing prevents the EEOC from aggregating the information it possesses in the form of a Commissioner’s Charge.” (Id.) ARGUMENT The panel’s decision departs from longstanding legal standards on EEOC subpoenas and, left unaltered, will unduly constrict the EEOC’s ability to gather the “relevant” information it needs to fulfill its Congressionally mandated law-enforcement function. The EEOC’s investigation of Graves’s and Palizzi’s charges revealed that other individuals from multiple states also have accused the same BNSF medical review officer of the same type of disability discrimination. It thus was reasonable for the EEOC to suspect that BNSF may be engaged in a pattern or practice in violation of the ADA. Because evidence about such a pattern or practice might cast light on what happened to Graves and Palizzi (since the pattern or practice would appear to include the actions taken against them), the information the EEOC subpoenaed is “relevant” to their charges and the subpoena must be enforced. In ruling otherwise, the panel’s decision effectively adopts a new definition of “relevance” that conflicts with the Supreme Court’s, this Court’s, and other Circuits’ precedent. The decision circumscribes the EEOC’s subpoena power and will inhibit the Commission’s statutorily required investigations. The panel, or the Court en banc, should rehear this appeal. A. The EEOC is entitled to virtually any evidence that might shed light on a charging party’s allegations, including evidence of potentially related systemic discrimination. Unlike other federal agencies, which may demand access to records relevant to matters within their jurisdiction even without a complaint of wrongdoing, the EEOC may only obtain evidence “relevant to the charge under investigation.” 42 U.S.C. §§ 2000e-8(a), 12117(a). Nevertheless, both the Supreme Court and this Court have explained that the “relevance” limitation “is not especially constraining.” Shell Oil, 466 U.S. at 68-6 9; Dillon, 310 F.3d at 1274. As long as the EEOC has a valid charge to justify its initial investigation, it is entitled to “virtually any material that might cast light on the allegations against the employer.” Shell Oil, 466 U.S. at 68; Dillon, 310 F.3d at 1274. This Court has emphasized that “the purpose of the charge . . . is only to initiate the EEOC investigation [and the] requirement that charges state the facts on which they are based must accordingly be given a flexible interpretation as applied to allegations of different unlawful employment practices.” Univ. of New Mexico, 504 F.2d at 1303-04. The EEOC maintains records of all charges filed throughout the country. As part of a reasonable investigation into a new charge, investigators may search agency records for other charges or investigations involving the same employer. The Supreme Court has acknowledged that “statistics and other information about an employer’s general practices may certainly be relevant to individual charges of discrimination.” EEOC v. Assoc. Dry Goods Corp., 449 U.S. 590, 604 (1981). Indeed, the Supreme Court has encouraged the EEOC, when investigating a single charge, to include information derived from other charges in the active investigative file. Id. Here, the EEOC began its investigation into Graves’s and Palizzi’s charges by reviewing its nationwide docket and discovering similar charges by other individuals. Information about whether a single decisionmaker may be acting based on class characteristics rather than individual attributes certainly might cast light on individual charges under investigation. Thus, this discovery suggested to the EEOC that what happened to Graves and Palizzi may be part of a larger pattern or practice of disability discrimination. The panel’s decision forbids the EEOC, without more, from subpoenaing any information about this larger question. The panel effectively held that information about the possible pattern or practice is irrelevant to Graves’s and Palizzi’s individual allegations. Such a result defies both common sense and longstanding case law. Imagine two homeowners telling an electricity company that they have no power, and then four other homeowners independently reporting outages as well. In its effort to restore power to the two initial homeowners, the company could certainly start by going directly to their homes and checking for downed power lines on the premises. However, it could also reasonably begin by investigating whether all six outages share a root cause. Indeed, the company may have to explore this possibility to be able to resolve the two initial complaints. And if the source of the outages is a systemic one, a broader investigation would also prevent the rest of the town’s residents from being left in the dark unnecessarily simply because they did not lodge their own complaints. This is precisely the path the EEOC was taking with its subpoena here. And the EEOC’s approach is fully consistent with this Court’s well- established precedent. This Court has refused to narrowly circumscribe the EEOC’s investigative authority. See Rich, 522 F.2d at 344 (“It cannot be said . . . that the policy of this court has been to narrowly circumscribe discovery in EEOC cases.”); cf. United Nuclear-Homestake Partners v. EEOC, Nos. 668-70 & 660-70, 1972 WL 11550, at *2 (10th Cir. June 14, 1972) (en banc) (unpublished) (“To require the charge to contain a specific bill of particulars would necessarily limit the scope of the investigation to the particular transaction or transactions meticulously described, and at the same time would curtail the discovery mission of the Commission, whereby the function Congress charged it to carry out would surely fail.”). Moreover, this Court, and many other courts, have long recognized that the EEOC is allowed, indeed encouraged, to subpoena information about the larger context in which individual employment decisions are made. In University of New Mexico, for instance, this Court held that the EEOC need not investigate an employer’s stated justifications for an individual decision before investigating the possibility that the stated justifications are pretextual, and that the decision was actually motivated by class discrimination. 504 F.2d at 1305-06; see also Circle K, 501 F.2d at1054-55 (ordering enforcement of a subpoena issued in conjunction with an investigation of an individual charge despite objections to its “geographic area and scope of inquiry”); Joslin Dry Goods, 483 F.2d at 182-84 (suggesting that this Court would uphold a subpoena seeking company-wide data where, like here, there is evidence of company-wide practices and procedures). Other Circuits recently have emphasized the EEOC’s authority to subpoena information about possible systemic discrimination as part of an investigation into an individual charge. As the Eighth Circuit has explained, “the EEOC ha[s] the authority to subpoena information relevant to systemic gender discrimination even absent a valid systemic charge.” Schwan’s Home Serv., 644 F.3d at 748. Likewise, the Seventh Circuit acknowledges that an individual charge of race discrimination in working conditions supports a related investigation into a larger possible pattern of hiring discrimination. Konica Minolta Bus. Solutions, 639 F.3d at 369-70. The Third Circuit has observed, “EEOC’s investigatory power is broader than the four corners of the charge; it encompasses not only the factual allegations contained in the charge, but also any information that is relevant to the charge.” Kronos, 620 F.3d at 299. Only days ago, the Court explained, “if the EEOC meets its burden to demonstrate that the information is relevant to [charging party’s] charge, as it construes her allegations, it is entitled to an order enforcing the subpoena notwithstanding that the information may allow it to explore other claims of discrimination against [respondent].” EEOC v. UPMC, No. 11-2869, 2012 WL 1010856, at *4 (3d Cir. Mar. 27, 2012) (unpublished). Despite this precedent, the panel’s decision requires the EEOC to investigate individual allegations as if they occur in a vacuum and restricts the EEOC’s investigation to the four corners of the charge(s) before it. (Slip Op. at 9.) The panel would have the EEOC ignore the possibility of class discrimination because “only the charges filed by Mr. Graves and Mr. Palizzi were ‘the charge[s] under investigation.’” (Slip Op. at 8 n.3.) The panel suggests that the EEOC must first investigate Graves’s and Palizzi’s charges and then – and apparently only then – “if it ascertains some violation warranting a broader investigation – expand[ ] its search.” (Id. at 9 (emphasis added).) The panel’s reasoning ignores that the EEOC searched its nationwide files precisely because it was investigating the Graves and Palizzi charges. The EEOC’s investigation of the individual charges is what brought the potential systemic discrimination to light. This is thus not a case in which the EEOC speculated about the theoretical possibility of systemic discrimination and issued a subpoena on an unfounded hunch. By the panel’s logic, even if the EEOC possessed one hundred individual charges against BNSF alleging the same sort of ADA violation, the EEOC still would be unable to subpoena possible systemic information without first investigating only whether Graves or Palizzi was discriminated against in violation of the ADA. This is backwards. As noted, it may not even be possible to uncover whether Palizzi and Graves were discriminated against on the basis of disability without first probing whether a larger pattern or practice was at play. B. When reasonable evidence suggests that an individual charge may be connected to a broader pattern or practice of discrimination, the EEOC need not obtain a Commissioner’s charge to investigate the possibility of related, widespread illegality. In suggesting that the EEOC “aggregat[e] the information it possesses in the form of a Commissioner’s Charge,” (Slip Op. at 9), the panel overlooked the controlling legal question. The issue is not whether an individual charge on its face supports a systemic subpoena. Rather, it is whether the EEOC can, based on evidence uncovered suggesting a larger pattern, broaden its investigation and subpoena relevant information without getting an additional charge specifically alleging a pattern or practice of discrimination. For the reasons described above, the answer is yes. As the Fourth Circuit has explained: If the EEOC uncovers during [its] investigation facts which support a charge of another [act or type of] discrimination than that in the filed charge, it is neither obliged to cast a blind eye over such discrimination nor to sever those facts and the discrimination so shown from the investigation in process and file a Commissioner’s charge thereon, beginning again a repetitive investigation of the same facts already developed in the ongoing investigation. EEOC v. General Elec. Co., 532 F.2d 359, 365 (4th Cir. 1976). Notably, when they considered BNSF’s petition to modify or revoke the subpoena, the EEOC’s Commissioners rejected BNSF’s relevancy argument. (R.1-14, Final Determ. at 6-12.) See 29 C.F.R. § 1601.16(b)(2). Since the EEOC as a whole has already approved of the issuance of a systemic subpoena premised on Graves’s and Palizzi’s individual charges, no purpose would be served by requiring one of the Commissioners to now bring a charge asking for the same information. Such a requirement “would be to champion form over substance and to generate ‘an inexcusable waste of valuable administrative resources’ and ‘intolerable delay,’ in violation of statutory purpose.” EEOC v. Occidental Life Ins. Co. of Cal., 535 F.2d 533, 542 (9th Cir. 1976), aff’d, Occidental Life Ins. Co. of Cal. v. EEOC, 432 U.S. 355 (1977). C. When an EEOC subpoena seeks relevant information, a court must enforce it whether or not the EEOC convinced the employer during the administrative process that the subpoena is valid. The panel criticized the EEOC for not disclosing the basis for its nationwide subpoena to BNSF before going to district court. (Slip Op. at 4 n.1.) But the panel did not explain how earlier disclosure would have made a difference to the subpoena’s enforceability. Nor could it have. The extent of notice that an employer receives “was not envisioned as a substantive constraint on the Commission’s investigative authority.” Shell Oil, 466 U.S. at 75. As described above, an EEOC subpoena must be enforced unless it is irrelevant to any lawful purpose. Univ. of New Mexico, 504 F.2d at 1302. Thus, as long as the subpoena seeks relevant information, the EEOC need not, during the administrative enforcement phase, describe the evidence behind that subpoena to the employer. The EEOC could have provided a more detailed explanation for expanding the investigation. But its failure to do so has no bearing on the narrow, and the only, legal question the district court and the panel were required to answer – i.e., whether the information sought was relevant to the individual charges at issue. As the Supreme Court has explained in a related context: To construe the notice requirement as respondent suggests would place a potent weapon in the hands of employers who have no interest in complying voluntarily with the Act, who wish instead to delay as long as possible investigations by the EEOC. It would always be open to such an employer to challenge the adequacy of the Commission’s disclosure of the data on which a charge is founded…. The difficulties of making such an assessment responsibly and the opportunities for appeals of district court judgments would substantially slow the process by which the EEOC obtains judicial authorization to proceed with its inquiries. Shell Oil, 466 U.S. at 81. The panel also criticized the EEOC for providing the district court with a summary of the other charges rather than with a copy of the charges themselves. (Slip Op. at 6 n.2.) The EEOC, however, did not provide a casual summary; it provided a sworn declaration from the Denver Field Office Director testifying to the existence of the other charges and the contents of their case files. (R.1-1, Sienko Decl. at 4-6.) BNSF, which possesses its own copy of the relevant charges, did not dispute the accuracy of the EEOC’s summary. The district court did not question it either. And neither the district court nor BNSF objected to the EEOC’s failure to place the actual charges in the record. The panel thus has mistaken potential evidentiary objections (never raised, much less ruled upon, below) for a “relevance” challenge. Seeming to recognize that information from other charging parties might support a broader inquiry into Graves’s and Palizzi’s charges, the panel suggested that the EEOC might have been “entitled to information relating to other positions and offices in Colorado” but not nationwide. (Slip Op. at 9 (emphasis in original).) The panel did not explain this distinction. Given that the other charges came from four other states, and that Dr. Jarrard appears to have made decisions for employees throughout the country, it is unclear why the panel would limit an investigation to Colorado. On these facts, the only basis for limiting the subpoena geographically is that compliance with this request would be unduly burdensome. But BNSF has waived this argument. (EEOC Reply Br. at 28.) CONCLUSION The panel’s decision is an outlier, departing from precedent and unduly restricting the EEOC’s investigative authority. For the reasons described above, the EEOC respectfully requests panel rehearing or rehearing en banc. Respectfully submitted, P. DAVID LOPEZ s/ Gail S. Coleman General Counsel _________________________ GAIL S. COLEMAN LORRAINE C. DAVIS Attorney Acting Associate General Counsel EQUAL EMPLOYMENT OPPORTUNITY COMMISSION DANIEL T. VAIL 131 M Street, NE, Room 5SW24L Acting Assistant General Counsel Washington, DC 20507 (202) 663-4055 gail.coleman@eeoc.gov Addendum ECF CERTIFICATE I certify that: 1. All required privacy redactions have been made; 2. The hard copies of this Petition for Rehearing and Suggestion for Rehearing En Banc submitted to the Clerk’s office are exact copies of the ECF filing; and 3. The ECF submission was scanned for viruses with Trend Micro OfficeScan Client for Windows version 10.5.1766, most recently updated on April 3, 2012. According to the program, this submission is free of viruses. s/ Gail S. Coleman ____________________________ GAIL S. COLEMAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, NE, Room 5SW24L Washington, DC 20507 (202) 663-4055 gail.coleman@eeoc.gov CERTIFICATE OF SERVICE I, Gail S. Coleman, hereby certify that I filed this Petition for Rehearing and Suggestion for Rehearing En Banc via the Electronic Case File (ECF) system on this 6th day of April, 2012. I also certify that I sent 18 paper copies of this Petition by UPS for next-day delivery to the Court. I further certify that I served this Petition this 6th day of April, 2012, via the ECF system on the following counsel of record and that I sent one paper copy of this Petition by UPS for next-day delivery to: Andrew David Ringel Bryan P. Neal Hall & Evans, LLC Thompson & Knight, LLP 1125 Seventeenth St., Suite 600 1722 Routh St., Suite 1500 Denver, CO 80202 Dallas, TX 75201 s/ Gail S. Coleman ____________________________ GAIL S. COLEMAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, NE, Room 5SW24L Washington, DC 20507 (202) 663-4055 gail.coleman@eeoc.gov