IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT ________________________________________ No. 01-1478 ________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Petitioner-Appellant, v. DILLON COMPANIES, INC., d/b/a KING SOOPERS, INC., Respondent-Appellee. _________________________________________________________ On Appeal from the United States District Court for the District of Colorado The Honorable Richard P. Matsch _________________________________________________________ REPLY BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION _________________________________________________________ NICHOLAS M. INZEO Acting Deputy General Counsel PHILIP B. SKLOVER Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel JOHN F. SUHRE Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street N.W., Room 7040 Washington, D.C. 20507 (202) 663-4716 TABLE OF CONTENTS Page REPLY BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION ...........................................................1 CONCLUSION ......................................................................18 TABLE OF AUTHORITIES Cases Page(s) American Tobacco Co. v. Patterson, 456 U.S. 63 (1982) ............................15 Ayala v. U.S., 980 F.2d 1342 (10th Cir. 1992) ...............................16 Cudahy Pkg. Co. v. NLRB, 117 F.2d 692 (10th Cir. 1941) .................. 5, 12 EEOC v. A.E. Staley Manufacturing Co., 711 F.2d 780 (7th Cir. 1983) .....11, 15 EEOC v. Children's Hosp. Med. Ctr., 719 F.2d 1426 (9th Cir. 1983) ...12, 13, 14 EEOC v. Chrysler Corp., 567 F.2d 754 (8th Cir. 1977) ........................13 EEOC v. Kloster Cruise Ltd., 939 F.2d 920 (11th Cir. 1991) ..............12, 14 EEOC v. Roadway Express, Inc., 750 F.2d 40 (6th Cir. 1984) .......................13 EEOC v. Shell Oil Co., 466 U.S. 54 (1984) ................................5, 11 EEOC v. South Carolina Nat. Bank, 562 F.2d 329 (4th Cir. 1977) ...................14 EEOC v. Tempel Steel Co., 814 F.2d 482 (7th Cir. 1987) ...........................12 TABLE OF AUTHORITIES (cont'd) Cases Page(s) EEOC v. Univ. of New Mexico, 504 F.2d 1296 (10th Cir. 1974) ..................8, 13 Endicott Johnson Corp. v. Perkins, 63 S. Ct. 339 (1943) .........................11 FTC v. Invention Submission Corp., 965 F.2d 1086 (D.C. Cir. 1992) ............... 5 Graniteville v. EEOC, 438 F.2d 32 (4th Cir. 1971) ................................13 In re EEOC, 709 F.2d 392 (5th Cir. 1983) .........................................13 Moore v. United States, 950 F.2d 656 (10th Cir.1991) .............................16 NLRB v. Dutch Boy, Inc., Glow Lite Div., 606 F.2d 929 (10th Cir. 1979)....... 12, 14 Smith v. Midland Brake, Inc., 180 F.3d 1154 (10th Cir. 1999) ............passim University of Pennsylvania v. EEOC, 493 U.S. 182 (1990) ...........................9 Whitehead v. Oklahoma Gas & Electric Co., 187 F.3d 1184 (10th Cir. 1999) .........16 Regulations 29 C.F.R. Pt. 1630, App. § 1630.2(o) (1998) ......................................17 IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT No. 01-1478 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Petitioner-Appellant, v. DILLON COMPANIES, INC., d/b/a KING SOOPERS, INC., Respondent-Appellee. On Appeal from the United States District Court for the District of Colorado The Honorable Richard P. Matsch REPLY BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION In May 1996, Emily Bexley filed a charge with the EEOC alleging that King Soopers violated the ADA by refusing to provide a reasonable accommodation for her disability. A. at 21. In the course of its investigation of Bexley's charge, the EEOC issued a subpoena directing King Soopers to produce, inter alia, the names of all employees working as All Purpose Clerk- Checkers in the store where Bexley worked and two other stores in Loveland and Boulder, along with their dates of hire and dates when they were placed in the All Purpose Clerk-Checker position. A. at 30. When King Soopers failed to comply with the administrative subpoena, the Commission initiated this subpoena enforcement proceeding in the district court. Supp. A. at 82. The magistrate judge concluded that the subpoena should be enforced as to the Greeley store, where Bexley worked. In so ruling, the magistrate rejected King Soopers' argument that it had met its obligation to accommodate Bexley by offering her either a part-time job or a lower- paying one. A. at 12-13. The magistrate concluded that the information as to jobs at the Greeley store was relevant because it might cast light on whether King Soopers could have reassigned Bexley to a job with equivalent hours and pay. Id. However, the magistrate concluded that the subpoena should not be enforced insofar as it requests information regarding jobs in the Loveland and Boulder stores. The magistrate concluded that information about these positions was not "relevant to the claim at issue" because, "if there were checker positions open at the Loveland or Boulder stores, other employees had a priority right to those positions under the applicable [collective bargaining agreement]." Id. at 13-14. The Commission filed objections to the magistrate's order to the extent that it denied enforcement of portions of the subpoena. We argued, inter alia, that the magistrate incorrectly concluded that the jobs in Loveland and Boulder were subject to a collective bargaining agreement, and that the information sought regarding those jobs was relevant. A. at 47. King Soopers did not file objections to the magistrate's order enforcing that portion of the subpoena seeking information about the store in Greeley. A. at 3. In its response to the Commission's objections, King Soopers admitted that the positions in question are not covered by a collective bargaining agreement (A. at 69 n.4), but argued that the information regarding the stores in Loveland and Boulder was irrelevant because the company has an "entrenched policy" of preferring to fill vacancies in a store with incumbent employees that provides a defense under this Court's decision in Smith v. Midland Brake, Inc., 180 F.3d 1154 (10th Cir. 1999) (en banc). A. at 68-71. The district court, without explication, denied the Commission's objections and adopted the magistrate's order as the court's decision. A. at 4-5. The Commission appealed from the district court's order. A. at 3. King Soopers did not cross appeal. Id. The Commission argued in its opening brief that the requested information is manifestly relevant to the question of whether King Soopers could have reassigned Bexley to an APC- Checker or Produce Clerk position in another store as a reasonable accommodation. EEOC br. at 13. We argued that King Soopers' claim that the requested information is irrelevant because of the company's policy regarding transfers is wrong as a matter of fact and law. Id. at 15-19. The Commission argued that, even assuming King Soopers has a policy of preferring incumbent employees, the requested information is relevant because it would reveal whether King Soopers filled any of the positions with new hires, conduct that would not implicate its asserted policy.<1> Id. at 14-15. We also pointed out that, under well-established legal principles, King Soopers' assertion that it has a defense to the merits of the charge of discrimination does not provide a basis for denying enforcement of a subpoena requesting information pertaining to the charge. Id. at 16-20. In its brief as appellee, King Soopers fails to directly respond to any of the arguments in the Commission's opening brief. Instead the company resorts to a number of tactics which divert attention away from the single issue presented by this appeal – whether the information sought by the Commission is relevant to an investigation of Bexley's charge. For the most part King Soopers distorts the arguments in the Commission's brief beyond recognition and then responds to these straw arguments rather than the arguments actually made. King Soopers incorrectly asserts that the Commission is precluded for arguing on appeal that the requested information is relevant notwithstanding the alleged transfer policy because the information would reveal whether the positions were filled by new hires. The company otherwise offers no response to this argument. Finally, King Soopers advances an argument that was rejected by the magistrate, notwithstanding the fact that the company failed to file any written objections to the magistrate's decision. The company's failure to object to this aspect of the magistrate's decision forecloses an appellate challenge to the magistrate's ruling. Because King Soopers' arguments confuse the issues on appeal, the Commission files this reply brief to refocus this appeal on the issue presented. 1. The Supreme Court has stated that the Commission's subpoena authority entitles it "to virtually any material that might cast light on the allegations against the employer." EEOC v. Shell Oil Co., 466 U.S. 54, 68-69 (1984); see also Cudahy Pkg. Co. v. NLRB, 117 F.2d 692, 694 (10th Cir. 1941) (agency entitled to "evidence touching the matter under investigation").<2> We argued in our opening brief that the information sought in the subpoena concerning clerk- checkers in the Loveland and Boulder stores was clearly relevant under this standard. The information sought "might cast light" on Bexley's allegation that King Soopers failed to offer her an available reasonable accommodation in several obvious ways. It might reveal, for example, that none of the clerk-checkers in those stores began working in that job during the time when Bexley was seeking an accommodation, thus suggesting that the accommodation of transfer was not available. On the other hand, it might reveal that one or more persons began working as clerk-checkers during that period but all of them had been hired by King Soopers earlier, thus raising the question of whether the company's asserted policy of preferring incumbents would preclude transfer as a reasonable accommodation. Finally, the information might disclose that one or more new employees began working as clerk-checkers during the relevant period, thus suggesting that transfer of Bexley was an available accommodation notwithstanding any policy of preferring incumbents. In its appellate brief, King Soopers merely reiterates its argument that the requested information about jobs in Loveland and Boulder is not relevant because the company's "entrenched policy" of preferring incumbent employees is a defense to Bexley's charge under Smith. Def.'s br. at 16-17. King Soopers does not dispute the Commission's argument that the information would be relevant notwithstanding the company's purported policy if it discloses that new hires were placed in clerk-checker positions during the relevant time period. Instead, the company incorrectly asserts that this argument wasn't advanced in the district court. The record contains the following colloquy between the magistrate and the Commission's attorney where the Commission clearly makes this point. When the magistrate asked whether it would be a "relevant inquiry" to know who King Soopers "hire[d] off the street," the Commission's attorney answered "[y]es," and explained that "the list of . . . who's in those positions and their seniority dates will tell us . . . . [i]f they came in off the street or if they were already there."<3> Supp. A. at 53. The Commission reiterated this point in its written objections to the magistrate's decision. See A. at 56 (information sought would be relevant even if company had a policy of preferring incumbents because it will disclose if new hires were placed in clerk-checker positions after incumbents failed to bid on jobs). King Soopers makes a related argument that is equally meritless. The company asserts that the Commission's argument should be rejected because it "is clear from the information sought that it is not the reason the EEOC seeks it."<4> Def.'s br. at 20. According to King Soopers, if the Commission's reason for issuing the subpoena was to get information about new hires, the Commission simply would have limited its request to the identity of persons hired off the street. Id. In essence, the company is arguing that the Commission is not entitled to enforcement of its subpoena unless it had a specific reason in mind for requesting the information. This argument is untenable. The critical issue in a subpoena enforcement proceeding is whether the information sought is relevant, i.e., "‘relates to any matter' under investigation." EEOC v. Univ. of New Mexico, 504 F.2d 1296, 1301 (10th Cir. 1974). As the Supreme Court has stated, "the adoption of a requirement that the Commission 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." Univ. of Pennsylvania v. EEOC, 493 U.S. 182, 193 (1990). In fact, as the Court made clear, the Commission, not the party charged with discrimination, is the architect of the Commission's investigation. Id. at 193 ("Clearly, an alleged perpetrator of discrimination cannot be allowed to pick and choose the evidence which may be necessary for an agency investigation."). In any event, the fact that the information requested was not limited to new hires does not indicate, as King Soopers argues, that obtaining such information was not a reason for the Commission's information request. It merely indicates that it was not the only reason. As discussed above, the Commission's specific purpose for seeking the information is beside the point as long as the information touches on the matter under investigation. King Soopers fails to offer any substantive response to the Commission's argument that the information sought is relevant because it might reveal that the company placed new hires in clerk-checker positions. Accordingly, for that reason alone, the district court erred in concluding that the information relating to the Loveland and Boulder stores was not relevant to the Commission's investigation notwithstanding the company's alleged transfer policy. 2. We also argued in our opening brief that there is a more general reason for rejecting King Soopers' argument that the information sought is not relevant because the company's transfer policies would provide a defense if Bexley or the EEOC attempted to pursue a claim in court that she was denied reasonable accommodation. We cited numerous decisions in our brief, including decisions of this Court and the Supreme Court, setting out the principle that a court may not deny enforcement of an administrative subpoena on the ground that the underlying claim lacks merit. See EEOC's br. at 16-17. Rather than respond to this point, King Soopers distorts the Commission's argument beyond recognition and then ridicules this straw argument. King Soopers disingenuously suggests that the Commission argues that a court may not consider the allegations of a charge in determining whether information requested in a subpoena is relevant to the Commission's investigation, and characterizes this argument as "simply ridiculous." Def.'s br. at 13. Most assuredly, a court must consider the allegations in a charge to determine whether material sought in a subpoena is relevant. However, that is an entirely different matter from considering the merits of the allegations in a charge, that is to say, weighing the likelihood that those allegations will be proven. The Supreme Court has left no doubt that these are two distinct issues. The Court stated that, in deciding the issue of relevancy at the subpoena enforcement stage, the Commission is entitled to "virtually any material that might cast light on the allegations against the employer." Shell Oil, 466 U.S. at 68-69. However, the Court warned that, in such a proceeding, "any effort to assess the likelihood that the Commission would be able to prove the claims made in the charge would be reversible error." Id. at 72 n.26. King Soopers offers no response to this point. The lesson of Shell Oil is unmistakable: in deciding relevancy, a court must consider the allegations in the charge; however, a court is barred from considering whether the Commission would be able to prove those allegations. See also EEOC v. A.E. Staley Mfg. Co., 711 F.2d 780, 788 (7th Cir. 1983) (recognizing that a court's review of a subpoena includes determining whether the information sought is "reasonably relevant," but holding that the employer cannot "argue the merits of its case at the subpoena enforcement proceeding"). Consequently, King Soopers' assertion that its purported policy will provide a defense to the allegations in Bexley's charge does not provide a basis for denying enforcement of the Commission's subpoena. See EEOC br. at 16-17 and cases cited therein. See also Endicott Johnson Corp. v. Perkins, 63 S.Ct. 339 (1943) ("The petitioner has advanced many matters that are entitled to hearing and consideration in its defense against the administrative complaint, but they are not of a kind that can be accepted as a defense against the subpoena."); EEOC v. Children's Hosp. Med. Ctr., 719 F.2d 1426, 1429 (9th Cir. 1983) ("a party may not defeat agency authority to investigate with a claim that could be a defense if the agency subsequently decides to bring an action against it"); EEOC v. Kloster Cruise Ltd., 939 F.2d 920, 922 (11th Cir. 1991) (reversing district court's decision not to enforce subpoena based on defendant's claim that Title VII did not cover employment activities on "foreign flagged cruise ships" because that argument "was prematurely made in this subpoena enforcement action"). Preventing consideration of the merits of a claim at the subpoena enforcement stage promotes both administrative and judicial efficiency. See EEOC v. Tempel Steel Co., 814 F.2d 482, 485 (7th Cir. 1987) ("[i]f every possible defense, procedural or substantive, were litigated at the subpoena enforcement stage, administrative investigations obviously would be subjected to great delay"); NLRB v. Dutch Boy, Inc., Glow Lite Div., 606 F.2d 929, 933 (10th Cir. 1979) ("because piecemeal appeals will disrupt and delay resolution of labor disputes, parties opposing the Board may not interpose defenses to the merits of the underlying unfair labor practice charges in subpoena enforcement actions");<5> Graniteville v. EEOC, 438 F.2d 32, 36 (4th Cir. 1971) (judicial hearings into merits of a charge "frustrate congressional intent by entailing extensive delay in the disposition of Title VII cases"). An EEOC subpoena enforcement action "should be only a skirmish, quickly brought and just as quickly ended." In re EEOC, 709 F.2d 392, 402 (5th Cir. 1983); accord EEOC v. Roadway Express, Inc., 750 F.2d 40, 42 (6th Cir. 1984) (subpoena enforcement procedure is a "summary process"). If the administrative process is permitted to proceed expeditiously, "the issues may well be disposed of without the necessity of federal court action." EEOC v. Chrysler Corp., 567 F.2d 754, 755 (8th Cir. 1977). As this Court noted, "no relief or remedy can be effected" until the Commission's investigation is complete, and, even then, the Commission must attempt to eliminate the unlawful practice "by informal methods of conference, conciliation, and persuasion before a court proceeding is initiated." Univ. of New Mexico, 504 F.2d at 1305. The Commission's investigation may disclose that there were no similar positions available at other stores to which King Soopers could have reassigned Bexley. EEOC br. at 18; see Children's Hosp., 719 F.2d at 1430 ("After gathering the evidence, the Commission may decide the charges lack a reasonable basis and the matter will end if the charging parties do not wish to pursue it."). Further, even if the Commission finds reasonable cause to believe that King Soopers did not provide a reasonable accommodation, the Commission "may be able to secure voluntary compliance." Id. In any event, if the matter is not resolved at the administrative stage, King Soopers will be able to argue its transfer policy as a defense against Bexley's allegations should litigation occur. EEOC v. South Carolina Nat. Bank 562 F.2d 329, 332 (4th Cir. 1977) (bank not foreclosed "from asserting that the charge is untimely if a suit is subsequently filed); Kloster Cruise, 939 F.2d at 924 (Kloster "will be free to litigate [jurisdiction defense] . . . before the appropriate court if necessary"); Children's Hosp., 719 F.2d at 1430 (in the event of suit by EEOC or charging parties, employer can present question of preclusive effect of consent decree);. Dutch Boy, Inc., 606 F.2d at 933 (defendant would not be "forever foreclosed" from introducing evidence on the merits because it would have opportunity to present evidence later in any appeal from the Board's final order). Indeed, this subpoena should be enforced for the same reasons the subpoena was enforced in A.E. Staley. There, the company argued that, because job assignments and promotions were made pursuant to a bona fide seniority system, the Supreme Court's decision in American Tobacco Co. v. Patterson, 456 U.S. 63 (1982), precluded the EEOC from investigating the charges. A.E. Staley, 711 F.2d at 788. The court of appeals noted that it had "only the mere assertion by Staley that its employment decisions are effected pursuant to a bona fide seniority system," and Staley was "in essence, attempting to argue the merits of its case at the subpoena enforcement proceeding." Id. Holding that "defenses on the merits of an administrative charge may not be raised to block the enforcement of an administrative subpoena," the court of appeals affirmed the district court's order enforcing the Commission's subpoena. Id. Likewise, here, this Court has only King Soopers' "mere assertion" that its decision not to transfer Bexley was taken pursuant to a policy that is lawful under this Court's decision in Smith and, as in Staley, the Commission's subpoena is designed to determine whether King Soopers' claim is in fact true. Thus, King Soopers, like Staley, is attempting to argue the merits of its case at the subpoena enforcement stage. This Court, like the Staley court, should reject the employer's attempt to litigate the merits of the allegations in a charge at the subpoena enforcement stage. 3. Finally, King Soopers argues that the information sought in the subpoena is not relevant to Bexley's charge because the company's offer to Bexley of two jobs in the Greeley store, both of which involved a reduction in pay, met its obligation to provide a reasonable accommodation under the ADA. Def.'s br. at 22-23. This argument was rejected by the magistrate judge in his decision. A. at 11-12. Because King Soopers failed to file written objections to the magistrate's decision it has waived this argument. This Court has adopted "a firm waiver rule" that a party who "fails to object to the findings and recommendations of the magistrate . . . waives appellate review of both factual and legal questions." Whitehead v. Oklahoma Gas & Elec. Co.187 F.3d 1184, 1190 (10th Cir. 1999), quoting Moore v. United States, 950 F.2d 656, 659 (10th Cir.1991) (citations and footnote omitted). In Whitehead, the Court held that the plaintiff could not argue for an exception to an exhaustion requirement based on futility because he failed to make that particular argument in his objection to the magistrates report. 187 F.3d at 1190. Here, King Soopers filed no objections to the magistrate's decision even though the decision expressly rejected the company's argument that none of the information requested in the subpoena was relevant because it had satisfied its reasonable accommodation obligation by offering Bexley two inferior positions. Because King Soopers did not file an objection to the magistrate's ruling, it cannot raise that argument on appeal. See Ayala v. U.S., 980 F.2d 1342, 1351-52 (10th Cir. 1992) (where magistrate ruled in part for plaintiff and in part for defendant and defendant, but not plaintiff, filed objections, plaintiff could not raise losing argument on appeal that it made before magistrate). In any event, King Soopers' argument that the subpoena should not be enforced because it met its duty to reasonably accommodate Bexley by offering her two lesser-paying jobs, like its argument as to its alleged transfer policy, is an argument on the merits of the charge of discrimination. For the reasons discussed above at 10-12, this argument cannot provide a basis for denying enforcement of the Commission's subpoena. Furthermore, for the reasons given by the magistrate, King Soopers argument that it satisfied its reasonable accommodation by offering Bexley two inferior jobs, regardless of whether better jobs were available, is manifestly wrong on the merits. As this Court recognized in Smith, the Commission's guidance provides that an employer "may reassign an individual to a lower graded position if there are no accommodations that would enable the employee to remain in her current position and there are no vacant equivalent positions for which the individual is qualified with or without reasonable accommodation." Smith, 188 F.3d at 1166, quoting 29 C.F.R. Pt. 1630, App. § 1630.2(o) (1998). Thus, it is not clear, as King Soopers contends, that its offers of accommodation would pass muster under Smith. CONCLUSION For the foregoing reasons, the Court should reverse the judgment of the district court and direct the district court to enforce the Commission's administrative subpoena in its entirety. Respectfully submitted, NICHOLAS M. INZEO Acting Deputy General Counsel PHILIP B. SKLOVER Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel John F. Suhre Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street N.W., Room 7040 Washington, D.C. 20507 (202) 663-4716 CERTIFICATE OF COMPLIANCE I certify that this brief complies with the type-volume limitations set forth in Fed. R. App. P. 32(a)(7)(B). This brief contains 4162 words. See Fed. R. App. P. 29(d). The brief was prepared using WordPerfect 9, in 14-point proportionally spaced type for text and for footnotes. See Fed. R. App. P. 32(a)(5) John F. Suhre February 22, 2002 CERTIFICATE OF SERVICE I hereby certify that two copies of the foregoing brief were mailed, first class, on this the 22nd day of February, 2002, to the following counsel of record: Edward J. Butler, Esq. Raymond M. Deeny, Esq. Sherman & Howard, LLC 90 S. Cascade Avenue, # 1500 Colorado Springs, CO 80903 John F. Suhre Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street N.W., Room 7040 Washington, D.C. 20507 (202) 663-4716 ********************************************************************************** <> <1> We argued also that whether Smith would protect King Soopers’ alleged policy of preferring incumbents requires discovery of the underlying facts, and that the Commission should not be denied those facts simply because the company claims it has a policy. Id. at 15-16. <2> Contrary to the assertion in King Soopers’ brief (Def.’s br. at 12), the Commission does not argue that King Soopers has the burden to show that the requested information is irrelevant. The Commission acknowledges that it, not King Soopers, has the burden to show that the information will shed light on the allegations in the charge. The Commission cited FTC v. Invention Submission Corp., 965 F.2d 1086, 1089 (D.C. Cir. 1992), only for the point that the concept of relevancy is so expansive in an administrative subpoena enforcement action that, “as a practical matter,” the respondent must ordinarily show that the information is not relevant to defeat enforcement. EEOC br. at 12. <3> King Soopers refers to a different colloquy which does not support its argument. Def.’s br. at 21. The company notes that the Commission responded negatively to the magistrate’s question about whether the Commission was seeking information about jobs filled by people hired off the street. However, the Commission’s attorney explained that “our specific requests are [] for the names of employees . . . in this clerk position” in the named stores. Supp. A. at 51-52. It is clear from the context of the discussion that the Commission’s counsel believed the magistrate was asking if the Commission was interested only in new hires. Furthermore, any doubt about the meaning of counsel’s statement was removed moments later when the colloquy quoted in the text occurred. <4> In making this argument, King Soopers erroneously asserts that the subpoena requests information regarding “every employee” in the Boulder store. Def.’s br. at 20. Unlike the requests for information as to the Greeley and Loveland stores, the request as to Boulder asks for a “list of all employees who worked at the Boulder store where [two employees] were placed as All Purpose Clerk-Checkers in February 1996.” However, the Boulder request asks the company to identify the employees by, inter alia, “date in All Purpose Clerk-Checker position.” App. at 30 (emphasis added). Thus, the language of the request shows that the Commission is seeking only material regarding the All Purpose Clerk-Checker positions in Boulder. The magistrate understood the request as so limited, stating that the Commission seeks information for Boulder “employees who worked as checkers.” App. 9. <5> King Soopers argues that the Commission’s reliance on Dutch Boy and Cudahy Packing Co. v. NLRB, 117 F.2d 692 (10th Cir. 1941), another decision cited in the Commission’s opening brief, is misplaced because neither decision addresses relevancy. However, both decisions clearly hold that a respondent’s potential defense to a claim on the merits is not a basis for denying enforcement of an administrative subpoena. That the decisions do not speak in terms of relevancy reflects the fact that the point raised by King Soopers’ is not an issue of relevancy, despite King Soopers’s attempt to paint it as such. Dutch Boy and Cudahy are apposite to this case because they stand for the time-tested rule that parties may not “interpose defenses” at this stage of the proceedings. Dutch Boy, 606 F.2d at 933.