No. 11-1759 _____________________________________ UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT ______________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Petitioner-Appellant, v. RANDSTAD; RANDSTAD NORTH AMERICAN LP; RANDSTAD GENERAL PARTNERS (US); RANDSTAD US LP; RANDSTAD INHOUSE SERVICES LP, Respondents-Appellees. On appeal from the United States District Court for the District of Maryland Hon. Richard D. Bennett, U.S.D.J., presiding Civil Action No. 1:10-cv-3472-RDB __________________________________________________________________ OPENING BRIEF of APPELLANT EQUAL EMPLOYMENT OPPORTUNITY COMMISSION __________________________________________________________________ P. DAVID LOPEZ General Counsel Equal Employment Opportunity LORRAINE C. DAVIS Commission Acting Associate General Counsel 131 M Street, N.E. Washington, DC 20507 SUSAN R. OXFORD (202) 663-4791; Fax: (202) 663-7090 Attorney susan.oxford@eeoc.gov TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . iii STATEMENT OF JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE ISSUE. . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . 2 A. Nature of the Case and Course of Proceedings. . . . . . . . . . . . 2 B. Statement of Facts. . . . . . . . . . . . . . . . . . . . . . . . 3 C. District Court Opinions. . . . . . . . . . . . . . . . . . . . . 9 SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . 12 ARGUMENT The District Court Erred in Refusing to Enforce the EEOC's Administrative Subpoena because Jurisdiction is not Plainly Lacking, the Subpoena Seeks Relevant Information, and Randstad Failed To Establish Undue Burden. . . . . . . . . . . . . . . . . . . . . . . . 15 A. Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . 15 B. The district court applied the wrong legal standards and clearly erred in refusing to enforce the EEOC's administrative subpoena. . . 16 1. The EEOC's statutory authority is not "plainly lacking"; the EEOC has authority to conduct this investigation under both Title VII and the ADA. . . . . . . . . . . . . . . . . . . . . . . . . . . 19 2. Subpoena items 3 and 4 are relevant and not overly broad. . . . . . . . 35 3. Randstad failed to demonstrate undue burden. . . . . . . . . . . . . . .41 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 REQUEST FOR ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . 44 CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . 46 CERTIFICATE OF SERVICE TABLE OF AUTHORITIES Cases page Becker v. Montgomery, 532 U.S. 757 (2001). . . . . . . . . . . . . . . . . .29 Chanda v. Engelhard/ICC, 234 F.3d 1219 (11th Cir. 2000). . . . . . . . . 33 Delaware State Coll. v. Ricks, 449 U.S. 250 (1980). . . . . . . . . . . . 26 Edelman v. Lynchburg Coll., 535 U.S. 106 (2002). . . . . . . . .21, 22, 26, 29 EEOC v. Am. & Efird Mills, Inc., 964 F.2d 300 (4th Cir. 1992). . . . . . . . . . . . 15, 17, 18, 24, 38 EEOC v. Astra U.S.A., Inc., 94 F.3d 738 (1st Cir. 1996). . . . . . . . . . .36 EEOC v. Bethlehem Steel Corp., 765 F.2d 427 (4th Cir. 1985). . . . . . 21, 25 EEOC v. Children's Hosp. Med. Ctr., 719 F.2d 1426 (9th Cir. 1983) (en banc). . . . . . . . . . . . . . . 18 EEOC v. Citicorp Diners Club, Inc., 985 F.2d 11036 (10th Cir. 1993). . . 41 EEOC v. City of Norfolk Police Dep't, 45 F.3d 80 (4th Cir. 1995). . . . . . . . . . . . . . . . 17, 18, 24, 34 EEOC v. Commercial Office Prods., 486 U.S. 107 (1988). . . . . . . . . . . .22 EEOC v. Dillon Companies, Inc., 310 F.3d 1271 (10th Cir. 2002). . . . . . 40 EEOC v. Federal Exp. Corp., 558 F.3d 842 (9th Cir. 2009). . . 17, 18, 19, 24 EEOC v. Gen. Elec. Co., 532 F.2d 359 (4th Cir. 1974). . . . . . . . . . . . 36 EEOC v. Konica Minolta Bus. Solutions, 639 F.3d 366 (7th Cir. 2011). . . 15 EEOC v. Kronos Inc., 639 F.3d 366 (7th Cir. 2011). . . . . . . . . . . . 36 EEOC v. Lockheed Martin Corp., 116 F.3d 110 (4th Cir. 1997). . . . .12, 15, 17 EEOC v. Maryland Cup Corp., 785 F.2d 471 (4th Cir. 1986). . . . . . . . . 14, 15, 17, 18, passim EEOC v. Quad/Graphics, Inc., 63 F.3d 642 (7th Cir. 1995). . . . . . . . . 41 EEOC v. Roadway Express, Inc., 261 F.3d 634 (6th Cir. 2001). . . . . . . . .35 EEOC v. Roadway Express, Inc., 750 F.2d 40 (6th Cir. 1984). . . . . . 24, 36 EEOC v. Schwan's Home Serv., 644 F.3d 742 (8th 2011). . . . . . . . . . . . 35 EEOC v. Shell Oil Company, 466 U.S. 54 (1984). . . . . . 12, 13, 19, 35, 38 EEOC v. Techalloy Maryland, Inc., 894 F.2d 676 (4th Cir. 1990). . . . . . 26 EEOC v. Tempel Steel Co., 814 F.2d 482 (7th Cir. 1987). . . . . . . . . . . 24 EEOC v. United Air Lines, Inc., 287 F.3d 643 (7th Cir. 2002). . . . . . 38, 43 EEOC v. Washington Suburban Sanitary Comm'n, 631 F.3d 174 (4th Cir. 2011). . . . . . . . . . . . . . . . . . . 34, 38 Evans v. Technologies Applications & Serv. Co., 80 F.3d 954 (4th Cir. 1996). . . . . . . . . . . . . . .9, 29, 30, 31, 33 Evans v. Technologies Applications & Serv. Co., 875 F. Supp. 1115 (D.Md. 1995). . . . . . . . . . . . . . . . . . . . .30 Fairchild v. Forma Scientific, Inc., 147 F.3d 567 (7th Cir. 1998). . 9, 27, 34 Faulkner v. Jones, 10 F.3d 226 (4th Cir. 1993). . . . . . . . . . . . . . . 15 Food Town Stores, Inc. v. EEOC, 708 F.2d 920 (4th Cir. 1983). . . . . . 25, 26 Graniteville Co. v. EEOC, 438 F.2d 32 (4th Cir. 1971). . . . . . . . . . . .39 Kasten v. Saint-Gobain Performance Plastics Corp., 131 S.Ct. 1325 (2011). . . . . . . . . . . . . . . . . . . . . . . . 28 Manning v. Chevron Chem. Co., 332 F.3d 874 (5th Cir. 2003). . . . . . . . . 33 Pejic v. Hughes Helicopters, Inc., 840 F.2d 667 (9th Cir. 1988). . . . . . 34 Rodriguez v. Airborne Express, 265 F.3d 890 (9th Cir. 2001). . . . . . . . .28 Sanchez v. Standard Brands, Inc., 431 F.2d 455 (5th Cir. 1970). . . . . . 26 Simms v. Oklahoma ex rel. Dep't of Mental Health & Substance Abuse Servs., 165 F.3d 1321 (10th Cir. 1999). . . . . . . . . . . . 34 Solis v. Food Employers Labor Relations Ass'n, 644 F.3d 221 (4th Cir. 2011). . . . . . . . . . . . . . . . . . . . . 15 United States v. Am. Target Adver., Inc., 257 F.3d 348 (4th Cir. 2001). . . . . . . . . . . . . . . . . . 15, 17 Univ. of Pa. v. EEOC, 493 U.S. 182 (1990). . . . . . . . . . . . . . . . . .37 Washington v. Kroger Co., 671 F.2d 1072 (8th Cir. 1982). . . . . . . . . 27 Statutes 28 U.S.C. § 1291. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. § 1331. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. § 1345. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 29 U.S.C. § 161. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 16 29 U.S.C. § 161(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 29 U.S.C. § 626(d)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . 30 42 U.S.C. §§ 2000e-2, 2000e-3. . . . . . . . . . . . . . . . . . . . . . . .16 42 U.S.C. § 2000e-5(b). . . . . . . . . . . . . . . 12, 16, 19, 20, passim 42 U.S.C. § 2000e-8. . . . . . . . . . . . . . . . . . . . . . . . . . . 17 42 U.S.C. § 2000e-8(a). . . . . . . . . . . . . . . . . . . . . . . . . . . 16 42 U.S.C. § 2000e-9. . . . . . . . . . . . . . . . . . . . . . . .1, 2, 16, 17 42 U.S.C. § 12112(a). . . . . . . . . . . . . . . . . . . . . . . . . . . 16 42 U.S.C. § 12112(b)(5)(A). . . . . . . . . . . . . . . . . . . . . . . . . 16 42 U.S.C. § 12117(a). . . . . . . . . . . . . . . . . . . . . . . 1, 2, 16, 19 Regulations 29 C.F.R. § 1601.10. . . . . . . . . . . . . . . . . . . . . . . . . . . . .21 29 C.F.R. § 1601.12 (a). . . . . . . . . . . . . . . . . . . . . . . . 12, 20 29 C.F.R. § 1601.12(b). . . . . . . . . . . . . . . . . . . . . 22, 25, 30 29 C.F.R. § 1601.18. . . . . . . . . . . . . . . . . . . . . . . . . . . 21 29 C.F.R. § 1601.19. . . . . . . . . . . . . . . . . . . . . . . . . . . 21 29 C.F.R. § 1601.20. . . . . . . . . . . . . . . . . . . . . . . . . . . 21 29 C.F.R. § 1601.21. . . . . . . . . . . . . . . . . . . . . . . . . . . 21 29 C.F.R. § 1626.8(c). . . . . . . . . . . . . . . . . . . . . . . . . . . 30 29 C.F.R. § 1626.22(c). . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Court Rules Fed. R. Civ. P. 11. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Fed. R. Civ. P. 15(c)(1)(B). . . . . . . . . . . . . . . . . . . . . . . . 28 Fed. R. Civ. P. 59(e). . . . . . . . . . . . . . . . . . . . . . . . . . 3, 11 Miscellaneous http://www.randstadusa.com/aboutrandstad/specialities/staffing.html. . . 4 STATEMENT OF JURISDICTION The United States District Court for the District of Maryland had jurisdiction over this application pursuant to 28 U.S.C. §§ 1331 and 1345; Section 107(a) of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12117(a); and Section 710 of Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e-9, which incorporates Section 11 of the Fair Labor Standards Act, 29 U.S.C. § 161. This provision of the Fair Labor Standards Act confers on federal district courts jurisdiction over applications by the Equal Employment Opportunity Commission (EEOC) to enforce an administrative subpoena brought under Title VII and the ADA. The district court denied the EEOC's application to enforce the administrative subpoena on February 23, 2011, and denied the EEOC's timely motion for reconsideration on May 5, 2011. JA-168a (R.13), 191a-194a (R.17).<1> The EEOC filed a Notice of Appeal on July 1, 2011. JA-195a (R.18). This Court has jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. STATEMENT OF THE ISSUE Whether the district court abused its discretion in refusing to enforce the EEOC's administrative subpoena seeking information from Randstad relevant to the EEOC's investigation of a charge alleging discrimination based on national origin in violation of Title VII and disability in violation of the ADA. STATEMENT OF THE CASE A. Nature of the Case and Course of Proceedings This is an appeal from the district court's refusal to enforce an administrative subpoena the EEOC served on Randstad pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e-9, and the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12117(a). At issue in this appeal are two of the six items (items 3 and 4) that the EEOC's subpoena asked Randstad to provide in connection with the EEOC's investigation of allegations of national origin and disability discrimination filed by Kevin Morrison, a former employee of Randstad. JA-160a. On December 10, 2010, the EEOC filed an application for an Order to Show Cause seeking an order compelling Randstad to provide these (and two other) then-outstanding items. JA-5a-8a (R.1). The district court issued the Order to Show Cause and set the matter for a hearing on February 10, 2011. JA-62a-63a (R.3). Randstad opposed the EEOC's application, JA-64a-110a (R.7), and on February 23, 2011, the district court denied enforcement of the EEOC's subpoena. The court concluded that Randstad had complied with two of the four items and denied the EEOC's application with respect to items 3 and 4. See JA-155a-168a (R.12.&13, Memorandum Opinion and Order, 2/23/11). The Commission filed a timely Rule 59(e) motion for reconsideration, JA-169a-170a (R.14 & 14-1), which the district court also denied. JA-191a-194a (R.17, Mem. Order (5/5/11). This appeal followed. JA-195a (R.18). B. Statement of Facts On January 5, 2007, Kevin Morrison filed a charge of discrimination with the EEOC alleging that in September 2006, Respondent Randstad, a nationwide staffing agency, denied Morrison placement in a position with Randstad customer Lenox, after having previously placed Morrison in jobs in 2005 and 2006. JA-30a (EEOC Charge). The charge alleged that Randstad's Hagerstown office sent Morrison to Lenox for an assignment, and Lenox gave Morrison forms to fill out and return. Morrison-who is Jamaican-born and cannot read and write English- asked a Randstad employee for assistance completing the Lenox forms. The Randstad employee, speaking for the company, told Morrison, "'We don't hire people who can not read. Come back when you learn to read.'" Id. The charge asserted Morrison believed he had been subjected to discrimination because of his national origin, Jamaican, in violation of Title VII. In the portion of the charge form requesting the basis of the discrimination, Morrison checked "national origin." Id. The EEOC served a copy of the charge on Randstad and began to investigate. JA-32a. In response to the charge, Randstad informed the EEOC that it is a nationwide business providing temporary staffing services to client companies. JA-35a. In any given week, the company's 600 branch offices in 37 states (including thirteen branch offices in Maryland) employ a total of 45,000 individuals: 1,800 employees-whom Randstad calls its "internal talent"-who recruit, screen, and hire temporary and permanent employees for client companies around the country, and 43,200 employees-Randstad's "external talent"-who are on assignment to Randstad customers. Id.; see also JA-10a (R.1-1, citing http://www.randstadusa.com/aboutrandstad/specialities/staffing.html). Randstad further informed the EEOC that it had employed Morrison a year earlier, in August and September 2005. JA-36a. According to Randstad, Morrison successfully completed a month-long assignment for Randstad client Good Humor in August 2005. Id. Randstad referred Morrison to two other warehouse positions in September 2005. According to Randstad, both clients terminated Morrison within days for poor performance. Id. Morrison did not seek any additional assignments for more than a year. Id. In September 2006, Morrison contacted Randstad again, and the company's Hagerstown office referred Morrison to a warehouse job with Lenox. Id. Randstad retracted the offer the next day when Morrison, who cannot read English, asked a Randstad employee to assist him in filling out a form for Lenox. Id. From the outset of the EEOC's investigation, Randstad asserted it "would never have placed Mr. Morrison on assignment with any Randstad clients had Randstad been aware" Morrison cannot read English because, according to Randstad, "virtually all of the assignments that Randstad is called upon to fill require reading and/or writing skills." Id. (March 2007 Position Statement, at 2) ("Even industrial positions, such as warehouse or assembly line positions or the shipping position that Mr. Morrison briefly filled for Good Humor, require these skills, since the inability to read and comprehend safety notices, warnings, or machinery operating instructions potentially places Mr. Morrison and his co- workers at risk of serious injury."). Randstad advised the Commission that it "remains willing to place Mr. Morrison . . . if he develops [remedial reading and writing] skills." Id. As the investigation progressed, the EEOC eventually learned Morrison has an intellectual disability that may prevent him from learning to read and write. Morrison thereafter amended his charge in January 2009 to add an allegation of discrimination based on disability under the ADA. JA-39a (Amended Charge). The amended charge asserts that the same events described in the initial charge- i.e., Randstad's retraction of the Lenox placement and statement to Morrison that Randstad will not refer him to any additional assignments until he learns to read- also constitute a failure to accommodate in violation of the ADA. Id. The Commission served the amended charge on Randstad. JA-41a. In February 2009, Randstad responded with a supplemental position statement stating that the factual background in its original position statement was "largely unaffected" by the amendment. JA-44a. Randstad urged the Commission to find "no cause" on the amended charge for two reasons: (1) the absence of any "evidence that Mr. Morrison's illiteracy follows from a physical or mental impairment," and (2) the absence of any discriminatory animus on Randstad's part, asserting Morrison "did not inform Randstad of any impairment that would be protected under the ADA." Id. The Commission continued its investigation and asked Randstad to provide additional information relevant to both the Title VII and ADA allegations. JA-49a- 50a (EEOC Request for Information). Randstad provided some of the requested items and objected to the rest as overly broad, unduly burdensome, and/or irrelevant. JA-52a-55a (Randstad letter dated November 17, 2009). The EEOC then issued an administrative subpoena seeking six items the EEOC believed Randstad had omitted from its response: (1) the client job orders, position descriptions, and essential job functions for each position Morrison held previously; (2) information concerning the person or persons who replaced Morrison at Lenox (including such person(s)'s national origin, if known); (3) a description of all position assignments made by Randstad between January 1, 2005, and January 15, 2010, including all applications for each position and whether reading and writing were required for the position; (4) a copy of the job order and job description for each such position filled; (5) a copy of Randstad's ADA and Title VII policies and procedures, including but not limited to those that address reasonable accommodations; and (6) the identity of all persons, besides Charging Party, who sought employment at Randstad's Hagerstown facility between January 1, 2006, and January 15, 2010, and were denied employment because of an inability to read or write, including their national origin and disability (if known), the position they sought (including the name of the Randstad client), a copy of the individual's application, and a copy of the job order and job description for the position they were denied. JA-57a-60a (EEOC Administrative Subpoena). Randstad petitioned the Commission to revoke the subpoena or, in the alternative, to narrow the time period and geographic scope. JA-98a-102a (Petition to Revoke or Modify Subpoena). The Commission agreed to limit the geographic scope of the subpoena to Randstad's thirteen Maryland offices but otherwise denied Randstad's petition to revoke or modify. JA-13a. Randstad thereafter provided documents responding to subpoena items 1, 2, 5, and 6, but did not provide the information requested in subpoena items 3 and 4. See JA-73a. The EEOC filed this subpoena enforcement action on December 8, 2010, citing authority under both Title VII and the ADA. JA-15a (EEOC Mem. in Support of O.S.C. Application, at 7). The Commission asserted that Randstad's literacy policy "may have a disparate impact on Jamaicans and others who are not fluent in English due to their national origin." Id. (citation omitted). The Commission also asserted that "[d]iscrimination based on ability to read may constitute a violation of the ADA." JA-16a. The Commission thus argued that the information it seeks is relevant to investigation of both the Title VII and the ADA claims in Morrison's EEOC charge. JA-17a-21a. In its opposition, Randstad asserted, for the first time, that its customers fall into two general categories-"'light industrial' clients in need of laborers in manufacturing or warehouse settings and 'administrative' clients in need of clerical and administrative employees in office settings"-and asserted that an ability to read and write is indisputably required for the latter positions. See JA-66a (Randstad Opposition to EEOC Application); JA-143a (Tr. 25:5-8). With respect to the warehouse and laborer jobs, Randstad reiterated its position that it "has never maintained a policy against hiring individuals who cannot read and write" but "typically has no work for talent who lack remedial reading skills." JA-67a; see also JA-66a-67a (ability to read, although "not an explicit job requirement" of light industrial clients, "is an implicit requirement for virtually every light industrial client assignment" because employees must be able "to read and comprehend safety notices, warnings, and instructions" for machinery). Randstad also argued the EEOC lacks statutory authority to issue the subpoena and that statewide data for a five-year period is not relevant to Morrison's individual charge. JA-76a-83a. Finally, Randstad argued that providing all job orders and assignments in Maryland for a five-year period would be unduly burdensome because compiling the requested information would require a database administrator, IT developer, and business analyst each to spend 40 hours reviewing 100,000 job orders at an estimated labor cost of between $14,000 and $19,000. JA-83a-84a. C. District Court Opinions The district court denied the EEOC's application to enforce the subpoena. JA-168a. The court stated that when Morrison amended his charge to add an ADA claim, he alleged "a new theory of recovery" which "does not relate back to the national origin claim in the Initial Charge." JA-163a-164a (Mem. Op. 2/23/11, at 9-10 (citing Evans v. Tech. Applications & Serv. Co., 80 F.3d 954, 963 (4th Cir. 1996), and Fairchild v. Forma Scientific, Inc., 147 F.3d 567, 575 (7th Cir. 1998)). The court ruled that "the EEOC lacks jurisdiction to enforce the subpoena because Morrison's disability discrimination claim is untimely on its face." JA-165a. During the hearing on the Commission's application, the EEOC had pressed its position that Morrison's Title VII and ADA charge allegations provide separate and distinct authority for the subpoena. See, e.g., JA-130a (Tr.12:3-23) (even if ADA charge disregarded, "nothing's been done to supplant or remove the original Title VII charge"); JA-145a-146a (Tr. 27:23-28:2) ("[T]he national origin charge and the ADA charge are essentially in the alternative. They don't read together. . . . They're parallel lines going forward."). After expressing significant misgivings about the EEOC's explanation of how Randstad's placement practices could possibly violate Title VII, JA-130a-136a (Tr. 12:24-18:1), the court stated that the Commission's Title VII argument was "not really getting much traction" with the court and directed counsel to address what the court characterized as "the core matter here, the matter of relation back." JA-135a (Tr. 17:10-13). The district court's opinion omits any discussion of Title VII as a possible jurisdictional basis. The district court further ruled that the information requested in subpoena items 3 and 4 is not relevant to Morrison's charge, in two respects. JA-166a. First, the court ruled irrelevant the portion of the subpoena seeking information about administrative and clerical positions for which Morrison lacks the requisite literacy skills. Second, the court ruled that the EEOC's request for what the court characterized as "wide-ranging information" from Randstad's thirteen Maryland offices for a five-year period after Morrison's termination in September 2006 is "not relevant" to Morrison's individual charge. Id. Finally, the court ruled that producing the information requested in items 3 and 4 would impose an undue burden on Randstad. JA-167a. The court relied on Randstad's claim that it "would take at least 120 hours of time and cost between $14,000 and $19,000" and would require review of "over 100,000 job placements" to compile the requested information. Id. On March 23, 2011-28 days after the court denied the EEOC's application-the EEOC moved for reconsideration under Federal Rule of Civil Procedure 59(e), advancing three reasons for the district court to alter or amend the judgment: (1) the court failed to address the EEOC's argument that jurisdiction could be premised on the original Title VII charge; (2) the court's ruling conflicted with this Court's standards concerning "relevance;" and (3) the ruling conflicted with this Court's standard on the defense of undue burden in EEOC investigations. JA-169a (EEOC Motion for Reconsideration). The district court denied reconsideration. JA-191a-194a (Mem. Order 5/5/2011). The court rejected the EEOC's arguments on jurisdiction and undue burden, JA-192a-193a, incorrectly stated that the EEOC did not dispute the court's determination on relevance, JA-193a, and stated it was denying the EEOC's motion because it "fails to satisfy the time requirements of Fed. R. Civ. P. 59(e)." JA-194a. The district court offered no explanation or analysis for ruling that the EEOC's motion was untimely under Rule 59(e). This appeal followed. SUMMARY OF ARGUMENT Items 3 and 4 of the EEOC's administrative subpoena-the only items at issue in this appeal-satisfy all criteria for judicial enforcement. First, jurisdiction to support subpoena enforcement is clear under Title VII and is not plainly lacking under the ADA. Morrison's charge, which alleges discrimination under both Title VII and the ADA, provides the necessary jurisdictional prerequisite under EEOC v. Shell Oil Co., 466 U.S. 54, 65 (1984). The original Title VII charge filed in 2007 was timely and meets all the requirements in 42 U.S.C. § 2000e-5(b) and 29 C.F.R. § 1601.12(a). Because the Title VII allegations remain open and unresolved, unaffected by Morrison's amended charge, they provide a jurisdictional basis for this EEOC subpoena. The ADA allegations in Morrison's amended charge also provide a separate and independent statutory basis for this investigation because they arise out of the same facts alleged in the original charge, and, therefore, relate back to the date Morrison filed his Title VII charge. Second, subpoena items 3 and 4 are relevant under Shell Oil's "generous" standard for relevancy in EEOC subpoenas. See EEOC v. Lockheed Martin Corp., 116 F.3d 110, 113 (4th Cir. 1997) (quoting Shell Oil, 466 U.S. at 68-69). The Commission is investigating whether Randstad has a policy of not offering employment to anyone who cannot read-not even positions as laborers or warehousemen-and, if so, whether any such policy discriminates on the basis of national origin. As an initial step in this investigation, the requested information will help the EEOC understand the types of laborer and warehouse assignments Randstad actually filled for light industrial clients in Maryland during the five-year period that encompasses the two stints when Morrison worked for Randstad.<2> The EEOC believes this information will ultimately help it ascertain whether Randstad imposes a literacy requirement that discriminates based on national origin in violation of Title VII. The same information is equally relevant to the EEOC's investigation of Morrison's ADA allegation. Randstad claims Morrison was unable to perform the Lenox job because of his inability to read. Randstad further asserts it has no positions Morrison can perform absent basic reading skills, even though Morrison was unable to read when he worked at Good Humor, and Randstad concedes Morrison successfully completed that month-long assignment. The job descriptions requested in subpoena items 3 and 4 will permit the EEOC to determine whether Randstad's practices tend to exclude Morrison and individuals like him who are capable of performing at least some of the jobs Randstad is filling for its clients, but who have disabilities that leave them unable to learn to read. Third, the district court ignored this Court's well-established legal standard when it found "undue burden." To establish undue burden, this Court requires a respondent to prove that compliance "would threaten [the company's] normal business operations" or impose costs that would be unduly burdensome as compared to the company's normal operating costs. See EEOC v. Maryland Cup Corp., 785 F.2d 471, 479 (4th Cir. 1986) (emphasis added). Randstad argued that, to comply with the subpoena, three Randstad employees would need to spend 40 hours each to sort and compile electronic data on job placements. Because the labor cost estimate Randstad presented appears, on its face, to be highly inflated, the district court clearly erred in relying on this labor cost estimate. More importantly, though, Randstad did not offer any evidence to compare its estimated labor cost to the company's normal operating costs, nor did Randstad even assert, let alone offer evidence to establish, that complying with the subpoena "would threaten [the company's] normal business operations." See id. ARGUMENT The District Court Erred in Refusing to Enforce the EEOC's Administrative Subpoena because Jurisdiction is not Plainly Lacking, the Subpoena Seeks Relevant Information, and Randstad Failed to Establish Undue Burden. A. Standard of Review This Court reviews the factual findings underlying a district court's enforcement of an administrative subpoena for clear error. Solis v. Food Employers Labor Relations Ass'n, 644 F.3d 221, 226 (4th Cir. 2011); United States v. Am. Target Adver., Inc., 257 F.3d 348, 351 (4th Cir. 2001); Lockheed Martin, 116 F.3d at 113. Where the district court applied the wrong legal standard, however, this Court accords no deference to the district court's ruling. See, e.g., Faulkner v. Jones, 10 F.3d 226, 236 n.1 (4th Cir. 1993). This Court reviews questions of law de novo, including questions of statutory interpretation concerning the EEOC's authority to conduct an investigation or subpoena specific information. See Solis, 644 F.3d at 226 (citing Maryland Cup, 785 F.2d at 475-76); EEOC v. Am. & Efird Mills, Inc., 964 F.2d 300, 302 (4th Cir. 1992); see also EEOC v. Konica Minolta Bus. Solutions, 639 F.3d 366, 371 (7th Cir. 2011) (interpretation of an EEOC charge is a question of law that court of appeals reviews de novo). B. The district court applied the wrong legal standards and clearly erred in refusing to enforce the EEOC's administrative subpoena. Title VII proscribes discriminatory employment practices on the basis of, among other things, national origin. 42 U.S.C. §§ 2000e-2, 2000e-3. The ADA proscribes discriminatory employment practices based on disability, including an employer's failure to provide a reasonable accommodation. 42 U.S.C. § 12112(a), (b)(5)(A). To accomplish this goal of eliminating unlawful discrimination from the workplace, Congress directed the EEOC to take and investigate charges of discrimination. 42 U.S.C. § 2000e-5(b); 42 U.S.C. § 12117(a) (extending to EEOC the same powers EEOC has under § 2000e-5 when investigating a charge of discrimination under the ADA). To enable the EEOC to satisfy its investigatory duties, Congress gave the EEOC authority to access "any evidence of any person being investigated . . . that relates to unlawful employment practices covered by [the statute] and is relevant to the charge under investigation." 42 U.S.C. § 2000e-8(a) (emphasis added). In the event the respondent in an EEOC charge does not comply with an EEOC request for information, Congress authorized the EEOC to issue an administrative subpoena. 42 U.S.C. § 2000e-9 (granting the EEOC the investigatory powers in section 11 of the National Labor Relations Act, 29 U.S.C. § 161). Congress extended the same investigatory and subpoena powers to the EEOC when EEOC investigates charges under the ADA. See 42 U.S.C. § 12117(a) (same procedures available to Commission under 42 U.S.C. §§ 2000e-8 and 2000e-9 when investigating Title VII charges of discrimination are available to Commission when investigating charges of discrimination under ADA). If a respondent does not comply with an administrative subpoena, however, the EEOC must resort to federal court if it wishes to enforce the subpoena. See 29 U.S.C. § 161(2). Because the issuance of an administrative subpoena is but one step in the EEOC's process of investigating charges of workplace discrimination, it is crucial that a proceeding for judicial enforcement be conducted in a summary fashion that does not impede or delay the administrative process. Indeed, to avoid any such delay, this Court has stated that the role of a district court in enforcing administrative subpoenas is "sharply limited" consistent with "the intent of such review process." Am. Target Adver., 257 F.3d at 351; EEOC v. City of Norfolk Police Dep't, 45 F.3d 80, 82 (4th Cir. 1995); Am. & Efird Mills, 964 F.2d at 303; Maryland Cup, 785 F.2d at 475; see also EEOC v. Federal Exp. Corp., 558 F.3d 842, 848 (9th Cir. 2009) (scope of judicial inquiry "quite narrow"). To obtain judicial enforcement of a subpoena, the EEOC need demonstrate only that "(1) it is authorized to make such investigation; (2) it has complied with statutory requirements of due process; and (3) the materials requested are relevant." Am. & Efird Mills, 964 F.2d at 302-03; see also Lockheed Martin, 116 F.3d at 113. To establish the first element-the EEOC's statutory authorization to conduct the investigation-the EEOC need only present "some 'plausible'" or "arguable" basis for jurisdiction. Norfolk Police Dep't, 45 F.3d at 85; Federal Exp. Corp., 558 F.3d at 848 (quoting EEOC v. Children's Hosp. Med. Ctr., 719 F.2d 1426, 1428 (9th Cir. 1983) (en banc)), see also id. at 849-51 & n.3. As long as jurisdiction is not "'plainly lacking,'" Federal Exp. Corp., 558 F.3d at 848, any further arguments concerning jurisdiction, as well as any arguments concerning the merits of the charge, are properly resolved in any subsequent litigation that may follow the EEOC's completion of its investigation. As this Court has explained: "The process [of reviewing an administrative subpoena for judicial enforcement] is not one for a determination of the underlying claim on its merits; Congress has delegated that function to the discretion of the administrative agency." Am. & Efird Mills, 964 F.2d at 303; see also Norfolk Police Dep't, 45 F.3d at 82. Once the EEOC makes this showing, "the court must enforce the subpoena unless the party being investigated demonstrates that the subpoena is unduly burdensome." See Maryland Cup, 785 F.2d at 476 (citing Children's Hosp., 719 F.2d at 1428; other citations omitted). To demonstrate undue burden, a respondent must show that the cost of gathering the information would be "unduly burdensome in light of the company's normal operating costs" or that "gathering the information would threaten [the company's] normal business operations." Maryland Cup, 785 F.2d at 479. Randstad has not questioned that the EEOC's subpoena satisfies "due process." The elements of "authorization to investigate" and "relevance" are satisfied here, as well. The Commission's statutory authority to investigate Morrison's Title VII and ADA charge allegations is not "plainly lacking," and the information the Commission seeks will help shed light on Morrison's charge. Because Randstad failed to demonstrate that producing items 3 and 4 would impose an undue burden, the district court erred in refusing to enforce the subpoena. 1. The EEOC's statutory authority is not "plainly lacking"; the EEOC has authority to conduct this investigation under both Title VII and the ADA. a. Statutory authority for the EEOC to conduct this investigation certainly cannot be said to be "plainly lacking." See Federal Exp. Corp., 558 F.3d at 848. Both Title VII and the ADA require the filing of a charge before the Commission can investigate a possible violation under either statute. See 42 U.S.C. § 2000e- 5(b); 42 U.S.C. §12117(a). Consequently, "[t]he existence of a charge that meets the requirements set forth in . . . 42 U.S.C. § 2000e-5(b)[] is a jurisdictional prerequisite to judicial enforcement of a subpoena issued by the EEOC" under Title VII and the ADA. See Shell Oil, 466 U.S. at 65. The charge Morrison filed in January 2007 alleging a violation of Title VII satisfies the requirements in 42 U.S.C. § 2000e-5(b). Section 2000e-5(b) requires only that "[c]harges shall be in writing under oath or affirmation and shall contain such information and be in such form as the Commission requires." The Commission has set forth its charge requirements in its procedural regulations, see 29 C.F.R. § 1601.12(a), and Morrison's original charge contains the information and is in the form required by this provision.<3> Since the EEOC never resolved or dismissed the Title VII allegations in Morrison's original charge, that charge continues to serve as a jurisdictional basis for the subpoena, and the district court committed reversible error in failing to so rule. Because the district court did not discuss the original Title VII charge in denying enforcement, it is unclear why the court did not recognize that the Title VII charge provides an adequate basis for enforcement of the subpoena. If the court rejected the Title VII charge based on a mistaken belief that those allegations were supplanted by Morrison's ADA charge amendment, the court erred as a matter of law, because the Title VII charge remains entirely viable under EEOC regulations. If the court rejected the Title VII charge because it believed there was no valid Title VII claim, the court improperly inquired into the merits in a subpoena enforcement proceeding. Either way, EEOC's statutory authority to investigate Morrison's Title VII charge is not only not "plainly lacking," it is clearly present here. EEOC regulations provide that a charge may be resolved through a finding of cause, 29 C.F.R. § 1601.21; a finding of no cause, 29 C.F.R. § 1601.19; or dismissal, 29 C.F.R.§ 1601.18. If the Commission closes a charge through any of these means, however, the Commission must give notice to the parties. See 42 U.S.C. § 2000e-5(b); EEOC v. Bethlehem Steel Corp., 765 F.2d 427, 429 (4th Cir. 1985) (§ 2000e-5 provides "charges may be closed only upon notice to the charging party and respondent"). A charge may also be withdrawn by a charging party, 29 C.F.R. § 1601.10, or may result in a negotiated settlement, 29 C.F.R. §1601.20, but "only with the consent of the Commission." See 29 C.F.R. §§ 1601.10, 1601.20(a), (b). None of the five forms of charge disposition noted above occurred with respect to Morrison's Title VII charge allegations, and Randstad does not assert that it has received any notice from the EEOC that any such disposition has occurred.<4> Notably, amending an initial charge-to add additional information or an additional basis for the same alleged discriminatory conduct-does not eliminate, replace, or dispose of the original charge. To the contrary, the additional information is simply incorporated into the original charge and the investigation continues. See 29 C.F.R. § 1601.12(b). Consequently, when Morrison amended his charge to add an allegation that the same conduct by Randstad violates the ADA, Morrison's original allegation of national origin discrimination remained in place and the EEOC's investigation continued into both the Title VII and ADA allegations. Indeed, the terms of the subpoena itself illustrates this point: subpoena items 2 and 6 explicitly request information about Randstad employees' national origin, and most of the remaining requests apply as equally to an EEOC investigation of national origin discrimination under Title VII as to an EEOC investigation of disability discrimination under the ADA. Thus, EEOC's statutory authority to investigate Morrison's Title VII charge is clearly present here. Nothing in the record indicates the Commission disposed of Morrison's original national-origin allegations when Morrison amended his charge to add his disability-based allegations. Since the Commission never resolved Morrison's initial Title VII charge pursuant to any authorized Commission procedure, the Title VII allegations continue to provide a jurisdictional basis for the Commission's investigation. The record suggests that the district court may have failed to recognize Morrison's Title VII charge as a jurisdictional basis for the subpoena because the court believed Morrison's allegations of national origin discrimination simply had no merit. If this is the case, the court improperly strayed into an inquiry on the merits not permitted in the context of a summary, subpoena-enforcement proceeding. During the hearing on February 10, 2011, the district court expressed significant misgivings about Commission counsel's explanation of how Randstad's placement practices could possibly violate Title VII, stating that the EEOC's Title VII argument was "not really getting much traction" with the court. See, e.g., JA- 130a-135a (Tr. 12:24-17:13). The fact that the court's opinion focused the entire discussion of "jurisdiction" on why the court found the ADA allegations did not relate back suggests the court may have simply made an improper, merits-related determination that there could be no national origin discrimination here. b. The district court also erred when it refused to enforce the Commission's subpoena on the ground that Morrison's ADA allegation was untimely because the amendment did not relate back to the date of his original charge filing. In so holding, the district court contravened this Court's well-settled principles that merits issues should not be resolved in a subpoena enforcement action, see Norfolk Police Dep't, 45 F.3d at 82; Am. & Efird Mills, 964 F.2d at 303, and that an EEOC subpoena should be enforced as long as there is an arguable basis for finding the charge timely, see Norfolk Police Dep't, 45 F.3d at 85. See also Federal Exp. Corp., 558 F.3d at 848 (subpoena to be enforced unless EEOC's authority to investigate underlying charge is "plainly lacking"). As this Court and other courts of appeals have made clear, as long as the EEOC presents an arguable basis for jurisdiction to investigate the charge, questions such as this, involving what might be a defense on the merits to a subsequent lawsuit, are properly addressed only when, and if, the EEOC or the charging party brings a lawsuit alleging unlawful discrimination. See, e.g., Norfolk Police Dep't, 45 F.3d at 85; see also EEOC v. Tempel Steel Co., 814 F.2d 482, 485 (7th Cir. 1987) ("join[ing] those courts that have determined that a timeliness defense may not be raised to block enforcement of an EEOC subpoena"); EEOC v. Roadway Express, Inc., 750 F.2d 40, 42 (6th Cir. 1984) (rejecting respondents' invitation to examine timeliness of the charge; stating subpoena enforcement proceeding not the proper time to litigate merits of a claim, either procedurally or substantively). The Commission has made a more than plausible or arguable case for enforcement based on Morrison's amended charge. Under the Commission's regulations, Morrison's amended charge relates back to the date Morrison filed his original Title VII allegations. See 29 C.F.R. § 1601.12(b). Since the Commission interprets Morrison's ADA allegations as timely, they provide a separate and distinct jurisdictional basis for enforcement of the subpoena. EEOC regulations permit a charging party to amend a charge "to cure technical defects or omissions . . . or to clarify and amplify allegations made therein." See id. The same regulation provides that "[s]uch amendments and amendments alleging additional acts which constitute unlawful employment practices related to or growing out of the subject matter of the original charge will relate back to the date the charge was first received." Id. Although Morrison filed his ADA charge amendment more than 300 days after Randstad terminated his employment, the Commission construes it to "relate back" to Morrison's original Title VII charge, which was unquestionably timely filed. This Court should give § 1601.12(b), and the Commission's application of it to Morrison's charge, the same judicial deference this Court accords EEOC procedural regulations generally. See Bethlehem Steel, 765 F.2d at 429; Food Town Stores, Inc. v. EEOC, 708 F.2d 920, 925 (4th Cir. 1983); see also cases cited supra at 21-22 n.4. Deference to EEOC's charge amendment regulation is warranted, in addition, because the relation-back principle reflected in the regulation is both reasonable and comports fully with the purposes of charge-filing time limits. See EEOC v. Techalloy Maryland, Inc., 894 F.2d 676, 678-79 (4th Cir. 1990) (adopting EEOC view of worksharing agreement because EEOC regulation was a reasonable interpretation of statutory procedure to which agency deference was due, and because result was consistent with remedial purposes of Title VII). The purpose of the statutory time limit "is to encourage a potential charging party to raise a discrimination claim before it gets stale, for the sake of a reliable result and a speedy end to any illegal practice that proves out." Edelman v. Lynchburg Coll., 535 U.S. 106, 112-13 (2002). Charge-filing time limits also "protect employers from the burden of defending claims arising from employment decisions that are long past." Delaware State Coll. v. Ricks, 449 U.S. 250, 256-57 (1980). Relating Morrison's ADA charge amendment back to his original Title VII charge is consistent with these purposes. Morrison's amendment does not assert a "stale" claim because it does not allege any new discriminatory incidents. It merely clarifies that there is another possible explanation for the employment action referenced in the original charge: disability discrimination. A number of courts have recognized that, under such circumstances, an amendment to an EEOC charge properly relates back to an earlier, timely charge. See Sanchez v. Standard Brands, Inc., 431 F.2d 455, 463-64 (5th Cir. 1970) (new claim in amended charge "relates back" to date of original charge, even where amendment offers a new legal theory, if facts alleged in original charge can support amended claim); see also Fairchild, 147 F.3d at 574-76 (adopting Sanchez test but finding that facts in Fairchild's original ADEA charge did not support amendment claiming disability discrimination); Washington v. Kroger Co., 671 F.2d 1072, 1075-76 (8th Cir. 1982) (under EEOC regulations, plaintiff's second charge properly treated as amendment to first charge even though second charge alleged different form of discrimination and was filed more than 300 days after alleged discrimination, where second charge grew out of same factual circumstances as in first charge; "aggrieved person is a non-lawyer who may be unaware of the true basis for the allegedly discriminatory acts until an investigation has been made"). Relating Morrison's ADA charge amendment back to the original Title VII charge does not place Randstad in any danger of having to defend against a claim arising from an employment decision that is "long past." Randstad was already on notice of the EEOC's investigation that Morrison's discharge from the Lenox assignment was possible discrimination based on national origin, and the EEOC never concluded that investigation. Thus, Randstad's interests are fully protected here. The contrary approach applied by the district court here makes no sense and undermines the EEOC's ability to perform the enforcement role Congress has assigned to it, because it will hamper the Commission's ability to inquire thoroughly into the circumstances surrounding an allegation of discrimination the EEOC had already begun to investigate. Thus, deference to the Commission's relation-back regulation comports with the principle that federal laws protecting workers' rights should be interpreted in a manner that furthers effective enforcement by the responsible federal agency. See Kasten v. Saint-Gobain Performance Plastics Corp., 131 S.Ct. 1325, 1333-34 (2011) (interpreting phrase "file a complaint" to encompass oral complaints furthers Secretary of Labor's effective enforcement of fair labor laws); Rodriguez v. Airborne Express, 265 F.3d 890, 898-99 (9th Cir. 2001) (accepting California Commission's position that, where the original administrative charge contains facts that support a claim in an otherwise-untimely amendment, the amendment relates back to original charge, because that position is in accord with state commission's purpose to eliminate discrimination in employment). Relating Morrison's ADA charge amendment back to his original Title VII charge is also consistent with how the federal rules treat amendments to a judicial pleading. Rule 15(c) of the Federal Rules of Civil Procedure provides: (1) An amendment to a pleading relates back to the date of the original pleading when: * * * (B) the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out-or attempted to be set out-in the original pleading. Fed. R. Civ. P. 15(c)(1)(B) (emphasis added). The type of amendment that Rule 15(c) allows to relate back to the date of the original pleading is the same type of charge amendment the Commission determined here relates back to the date Morrison filed his original Title VII charge: the assertion of a claim (failure to accommodate in violation of the ADA) that arose out of the conduct or occurrence set out in the original charge (Randstad's decision to fire Morrison from the Lenox position after learning Morrison lacks basic literacy skills). In Edelman, the Supreme Court upheld the same EEOC relation-back regulation in the context of charge verification. The Court noted, among other things, that the EEOC's relation-back rule comports with the federal rule that permits an appealing party to "cure" an unsigned notice of appeal with a signature that relates back to the time the procedurally-defective notice of appeal was originally filed. See 535 U.S. at 115-16 (citing Becker v. Montgomery, 532 U.S. 757 (2001); Fed. R. Civ. P. 11). For reasons similar to those articulated in Edelman, the EEOC's relation-back regulation permits a party, like Morrison, to amend a timely charge to add or clarify the original allegations, including providing an additional possible basis for the alleged discriminatory conduct. The district court wrongly relied on Evans v. Technologies Applications & Service Co., 80 F.3d 954 (4th Cir. 1996), to preclude relation back here. See JA- 163a (Mem. Op. 2/23/11, at 9). In Evans, this Court barred a plaintiff from litigating a claim under the Age Discrimination in Employment Act (ADEA) because her administrative charge had initially asserted only sex discrimination under Title VII, and she did not amend her charge to add "age discrimination" until more than 300 days after the alleged discrimination occurred. Evans's initial charge had alleged: she was denied an opportunity to apply for a promotion based on her sex; the position was given, instead, to a man; and his predecessor was also a man. Evans, 875 F. Supp. 1115, 1119 (D. Md. 1995). More than a year later, Evans amended her charge to add that she also believed her age (44) was a factor in her non-selection for the supervisory position, asserting that the man who received the position and his predecessor were both in their mid 30's. Id. There is no indication Evans included any other supporting allegations in her initial or amended charges. On appeal from the district court's dismissal of the age claim as untimely, this Court noted that the EEOC's relation-back regulation for ADEA claims, 29 C.F.R. § 1626.8(c), permits a charging party to amend her charge and provides that any such amendment that is "related to or growing out of" the original charge will relate back to the date the charge was first filed.<5> Evans, 80 F.3d at 963. This Court, however, agreed with the district court that Evans's age claim was "unrelated" to her claim of sex discrimination. Id. ("age discrimination does not necessarily flow from sex discrimination and vice versa"). On this basis, this Court affirmed the district court's ruling that the age discrimination claim did not relate back and was, therefore, untimely.<6> Id. Evans thus involved a fact-specific finding-that the allegations of Evans's amended charge were not "related to or growing out of" her original charge- undertaken in the context of a lawsuit on the merits of a plaintiff's claims. Here, on the other hand, the relation-back question arises in the very different context of an EEOC subpoena enforcement action, where the court's "strictly limited" role is to determine only whether the EEOC has any arguable basis for jurisdiction over the investigation. As noted above, this Court has expressly cautioned district courts, in addressing such subpoena enforcement matters, not to venture into questions concerning jurisdiction that a respondent might properly later raise as a defense to a lawsuit on the merits. See discussion at 17-18, 24, supra. Applying the proper deferential judicial review to the EEOC's assertion of jurisdiction to investigate Morrison's charge, Morrison's ADA charge amendment "relate[s] to or grow[s] out of" his original Title VII charge allegations. In his original charge, Morrison asserted he was denied a job because he cannot read English. The EEOC thereafter learned there are two potential explanations for Morrison's inability to read English: one grounded in Title VII and reflected in the original charge (that Morrison is Jamaican and his native language is not English); the other grounded in the ADA and reflected in the amended charge (that Morrison has an intellectual disability that impairs his ability to learn to read). Since Morrison's original charge clearly stated that his inability to read English is the factor that prompted Randstad to deny him the Lenox job and withhold any future placements, the second potential explanation for Morrison's inability to read English-the disability-based explanation he advanced in the amended charge- "grows out of" and "relates to" the explanation Morrison advanced in his original charge. Finally, there is a critical factual distinction between this case and Evans that undercuts the district court's application of Evans here. Evans filed her private lawsuit very shortly after amending her charge-before the county human rights agency had any chance to investigate her newly-added allegations of age discrimination. In affirming the district court, this Court stated that if a plaintiff (like Evans) were permitted to add "an entirely new theory of recovery" through a late amendment to an administrative charge, it would "'eviscerate the administrative charge filing requirement altogether' by depriving the employer of adequate notice and resulting in a failure to investigate by the responsible agency." Evans, 80 F.3d at 963 (citation omitted). Thus, in ruling that Evans could not litigate her age claim, this Court based its decision, at least in part, on its conclusion that Evans had defeated the purposes of administrative exhaustion by depriving the administrative agency of any opportunity to investigate and attempt a voluntary resolution. The opposite situation exists here: not only has no private lawsuit has been filed, but the dispute exists because the EEOC is attempting to complete its investigation of Morrison's discrimination claims. Allowing the EEOC to investigate whether Morrison's second allegation-disability discrimination- might explain his termination actually would further, rather than "eviscerate[,] the administrative charge filing requirement." Evans, 80 F.3d at 963. Applying this reasoning of Evans, Morrison's amendment should relate back.<7> c. In sum, the district court should have enforced the subpoena because Morrison's original Title VII charge provided more than adequate jurisdictional basis for the Commission's investigation. In denying enforcement on the ground that Morrison's amended charge did not relate back-reasoning that the charge amendment was untimely-the district court failed to comport with the "sharply limited" role this Court imposes for district court review of administrative subpoenas. See Norfolk Police Dep't, 45 F.3d at 82. The district court, instead, improperly addressed merits-related questions that this Court has directed should await the filing of a merits-based action upon completion of the EEOC's investigation. Cf. EEOC v. Washington Suburban Sanitary Comm'n, 631 F.3d 174, 181-82, 185 (4th Cir. 2011) (enforcing EEOC subpoena, and noting that EEOC investigation was at "preliminary stage" and respondent could raise defense of legislative immunity if a lawsuit was ever filed). In any case, there is arguable jurisdictional support here for enforcement of this subpoena based on relation back of Morrison's amended charge. 2. Subpoena items 3 and 4 are relevant and not overly broad. "Once the EEOC presents a valid charge, it has the authority to access 'any evidence of any person being investigated . . . that . . . is relevant to the charge under investigation.'" EEOC v. Schwan's Home Serv., 644 F.3d 742, 747 (8th 2011) (citing 42 U.S.C. § 2000e-8(a)). The Supreme Court has explained that this "relevance" limitation "is not especially constraining;" 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." Shell Oil, 466 U.S. at 64, 68-69. This Court and other courts of appeals agree that an expansive construction of "relevance"-encompassing information beyond what narrowly pertains to a particular charging party-affords the EEOC a basis both for a comparison between the charging party's circumstances and other members of respondent's workforce as well as a basis for assessing how widespread discrimination may be in a particular workplace. In EEOC v. Roadway Express, 261 F.3d 634 (6th Cir. 2001), for example, the Sixth Circuit ruled the EEOC was entitled to evidence focused on "the existence of patterns of racial discrimination in job classifications or hiring situations other than those that the EEOC's charge specifically targeted." Id. at 639. The court of appeals explained that "[t]he employer's pattern of action provides context for determining whether discrimination has taken place." Indeed if, during the course of a reasonable investigation, the EEOC uncovers evidence that supports possible additional claims of discrimination, the EEOC is not required to ignore such evidence. As this Court explained in EEOC v. General Electric Co., 532 F.2d 359 (4th Cir. 1974), the charge provides the EEOC with a "'jurisdictional springboard to investigate whether the employer is engaged in any discriminatory practices.'" Id. at 364 (citation omitted). If the EEOC's investigation uncovers facts that support a charge of a different form of discrimination other than that in the filed charge, the EEOC is not obliged "to cast a blind eye over such discrimination," nor is the EEOC obliged "to sever those facts and the discrimination so shown from the investigation in process." Id. at 365-66. See also EEOC v. Kronos Inc., 639 F.3d 366, 369 (7th Cir. 2011); EEOC v. Astra U.S.A., Inc., 94 F.3d 738, 746 (1st Cir. 1996) (EEOC charge "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. Roadway Express, 750 F.2d at 43 (relevancy requirement does not limit EEOC to information pertaining solely to claimant's specific charge). Thus, this expansive construction of "relevance"-encompassing information beyond what pertains directly to a particular charging party-provides the opportunity for the EEOC to fulfill its role of protecting the public interest. Beyond establishing general "relevance," however, the EEOC is not required to "demonstrate a 'specific reason'" for the information it seeks. As the Supreme Court has noted, such a requirement would create a "substantial" and unnecessary obstacle to the EEOC's "efforts to investigate and remedy alleged discrimination." Univ. of Pa. v. EEOC, 493 U.S. 182, 194 (1990). The EEOC subpoena in this case readily meets this relevancy standard. The information requested in items 3 and 4 will assist the EEOC in determining whether Randstad imposes a literacy requirement that discriminates on the basis of national origin. Knowing the types of non-clerical jobs into which Randstad has placed individuals since January 2005, the year Morrison first sought work through Randstad, will assist the EEOC in ascertaining whether Randstad is correct when it claims that an ability to read is needed to perform all of its laborer positions, or whether Randstad has made other placements-like the Good Humor job Morrison did in September 2005-that can be performed successfully even without an ability to read. This information, in turn, will help the EEOC determine whether Randstad's professed literacy requirement eliminates from consideration individuals who could perform the jobs in question but are nevertheless excluded simply because they cannot read and write English because their national origin is somewhere other than the United States and their native language is not English. In ruling items 3 and 4 not relevant to the EEOC's investigation of Morrison's charge, the district court failed to address the proper "relevance" inquiry: whether the information requested by the EEOC "might cast light on [Morrison's] allegations." See Shell Oil, 466 U.S. at 68-69. Instead, just as the district court improperly delved into merits questions in ruling that Morrison's amended charge does not relate back, see Am. & Efird Mills, 964 F.2d at 303, the district court improperly inquired into merits inquiries in making its determination as to relevance. During oral argument, the district court stated that although some Jamaicans speak Patois, English is the "basic native language" of Jamaica. The court then questioned the "jump" from being of Jamaican national origin to lacking fluency in English. See Tr. at 16. Again, as already discussed, "'the EEOC's authority to investigate is not negated simply because the party under investigation may have a valid defense to a later suit.'" EEOC v. United Air Lines, Inc., 287 F.3d 643, 651 (7th Cir. 2002); see also Washington Suburban Sanitary Comm'n, 631 F.3d at 181- 82. For a district court to essentially require the EEOC to establish that it has reasonable cause to believe an employer's conduct violated Title VII or the ADA before the court will enforce an administrative subpoena that seeks the information the EEOC needs to determine "reasonable cause" "is not only to place the cart before the horse, but to substitute a different driver for the one appointed by Congress." Graniteville Co. v. EEOC, 438 F.2d 32, 36 (4th Cir. 1971). Congress has charged the EEOC-not the court or Randstad-with the responsibility of determining what information is needed to ascertain whether Randstad imposes an English literacy requirement that discriminates on the basis of national origin. Items 3 and 4 are also relevant to an investigation of Morrison's ADA charge. Randstad terminated Morrison's employment because the company concluded that absent an ability to read-a condition that, in Morrison, may be the result of an intellectual impairment-Morrison is unable to perform any job for any Randstad's customer. The EEOC already possesses information that undermines Randstad's claim: Morrison was unable to read English when he worked for Randstad in 2005, but he nevertheless successfully completed a month- long assignment at Good Humor, belying Randstad's claim that English literacy skills are necessary for successful performance of all its laborer positions. The information requested in subpoena items 3 and 4 is relevant to this investigation because it will permit the EEOC to determine whether Randstad's Maryland branches made any other staffing placements into jobs, like the Good Humor assignment, that a person who lacks English literacy skills because of a disability could nevertheless perform. Randstad objected to producing the requested information for all of its Maryland offices from January 2005 through January 2010 on the ground that Morrison only sought employment at Randstad's Hagerstown branch, and only between August 2005 and September 2006. Without further discussion, the court concluded that the "wide-ranging information" the Commission seeks "is not relevant to Morrison's charge." Slip op. at 12. However, the EEOC is entitled to test Randstad's assertion that all of its warehouse and laborer positions require basic literacy skills by examining Randstad's job placements over a reasonable period of time and geographic reach, and to ascertain whether practices that occurred when Morrison applied for a job have continued to occur since that time. See, e.g., EEOC v. Dillon Companies, Inc., 310 F.3d 1271 (10th Cir. 2002) (enforcing EEOC subpoena seeking information on job vacancies at multiple stores beyond store where charging party worked; rejecting as premature respondent's contention that its seniority system made jobs at the other stores unavailable to the charging party). This specified time period and geographic limitation reflect the Commission's reasonable judgment as to what constitutes an appropriate investigation of this charge. Randstad further claimed, below, that since literacy is an implicit rather than explicit job requirement, the requirement is not reflected on its job orders and placement records and, therefore, disclosing these records will not assist the EEOC's investigation. Randstad, however, is not entitled to decide for the Commission whether information it possesses will, or will not, advance the EEOC's investigation. Rather, since, as explained above, items 3 and 4 meet Shell Oil's standard of relevance, the Commission is entitled to obtain the information and extract from it whatever can be discerned concerning the nature of various job assignments and their dependence, or lack thereof, on English literacy skills. Randstad is not at liberty to decline compliance with an EEOC subpoena simply because Randstad thinks the information will not benefit the EEOC's investigation. 3. Randstad failed to demonstrate undue burden. To defeat an EEOC subpoena based on "undue burden," a respondent must show that the cost of gathering the information would be "unduly burdensome in light of the company's normal operating costs" or that "gathering the information would threaten [the company's] normal business operations." Maryland Cup, 785 F.2d at 479 (emphasis added). "The burden of proving that an administrative subpoena is unduly burdensome is not easily met." Id. at 477 (citation omitted).<8> The district court failed to apply this standard. The court held that producing subpoena items 3 and 4 would be "unduly burdensome" on Randstad based only on an affidavit submitted by Randstad's Director of IT Applications, Jason Wolfe. See JA-167a; JA-108a-110a. Mr. Wolfe claimed that, to produce the information requested in subpoena items 3 and 4, Randstad would have to review over 100,000 job placements which would purportedly take three Randstad employees at least 40 hours each at an estimated labor cost of $14,000 to $19,000. JA-109a-110a. This cost estimate appears excessive on its face.<9> Even if accurate, however, it does not demonstrate "undue burden" because Randstad offered no evidence by which to compare this estimated labor cost to its normal operating expenses, nor did Randstad offer any evidence that pulling these three Randstad employees from their other duties for 40 hours would threaten Randstad's normal business operations. Indeed, in Maryland Cup, this Court ruled that a far greater expense ($75,000) did not meet this Court's rigorous test for establishing "undue burden" absent any evidence against which to compare this expense to the company's normal operating costs. See 785 F.2d at 478-79 (estimated cost to company of $75,000 does not demonstrate "undue burden" because company offered no comparison to its normal operating costs). Randstad has similarly failed to meet its burden here, and the district court's conclusion that complying with subpoena items 3 and 4 would be unduly burdensome for Randstad is clearly erroneous because it simply has no basis in the record. The district court mistakenly relied on United Air Lines, 287 F.3d at 653, for the principle that a respondent can establish "undue burden" based on estimated cost of compliance, alone. In United Air Lines, the Seventh Circuit did not endorse a consideration of costs in a vacuum. Rather, United Air Lines held quite correctly that the cost of compliance is relevant where "the personnel or financial burden on the employer is great compared to the resources the employer has at its disposal." See id. at 653-54 (emphasis added). In any event, any cost burden associated with providing the requested information may be less than Randstad previously projected because the EEOC does not seek information on any assignments Randstad made for clerical and administrative positions in office settings. The EEOC became aware of this category of job placements only after receiving Randstad's response to the EEOC's subpoena enforcement action, and the EEOC agrees that Morrison (and other persons lacking English literacy skills) would be unable to perform these particular jobs. Therefore, the EEOC does not seek that information from Randstad as part of this investigation. CONCLUSION For all of the foregoing reasons, the Commission respectfully urges this Court to reverse the district court and to order Randstad to comply with items number 3 and 4 of the EEOC's administrative subpoena (excluding clerical and administrative positions in office settings). REQUEST FOR ORAL ARGUMENT The EEOC's ability to obtain information from employers like Randstad is crucial for the EEOC to accomplish its statutory duty to investigate allegations of employment discrimination under Title VII and the ADA. The district court made a number of significant errors in denying the EEOC's application for enforcement of its administrative subpoena, including errors in understanding of the broad scope of the EEOC's authority when it investigates an individual charge of discrimination and in interpreting the EEOC's administrative procedures for accepting and investigating charges of employment discrimination. The EEOC believes oral argument will significantly assist this Court in properly analyzing the errors in the district court's order. Respectfully submitted, P. DAVID LOPEZ General Counsel LORRAINE C. DAVIS Acting Associate General Counsel /s/ Susan R. Oxford _____________________________ SUSAN R. OXFORD Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, N.E., Washington, D.C. 20507 Tel (202) 663-4791; Fax (202) 663-7090 susan.oxford@eeoc.gov CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 10,555 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). 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/ Susan R. Oxford Susan R. Oxford Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, N.E. Washington, D.C. 20507 (202) 663-4791 susan.oxford@eeoc.gov Dated: September 20, 2011 CERTIFICATE OF SERVICE I, Susan R. Oxford, hereby certify that on September 20, 2011, I filed this Opening Brief electronically with this Court using the Court's electronic case filing (ECF) system, and served it on counsel for Randstad, John S. Snelling, Esq., using the Court's ECF system. On the same date, I filed with this Court an original and seven copies of the Appellant EEOC's Opening Brief by United Parcel Service, postage pre-paid. /s/ Susan R. Oxford Susan R. Oxford Attorney EEOC, Office of General Counsel 131 M Street, N.E. Washington, D.C. 20507 (202) 663-4791 susan.oxford@eeoc.gov ********************************************************************************** <> <1> "JA-#" refers to the page in the Joint Appendix. "R.#" refers to the district court docket number. <2> Based on Randstad's representation below that English literacy is an explicit requirement for all clerical and administrative positions it fills for its administrative clients in office settings, the EEOC does not currently seek any information from Randstad concerning job orders and job placements for clerical or administrative positions in office settings, and the EEOC hereby modifies the subpoena accordingly. The EEOC continues to seek the information in subpoena items 3 and 4 for all other job placements during the specified five-year timeframe. <3> Section 1601.12(a) requires each charge to contain: (1) the charging party's name, address, and telephone number; (2) the name, address, and telephone number of the respondent; (3) "[a] clear and concise statement of the facts" constituting the alleged discrimination; (4) the approximate number of respondent's employees; and (5) a statement whether proceedings involving the alleged unlawful practices were commenced before a state or local agency. Morrison's original charge and amended charge were both made under oath, and both contain the information specified in § 1601.12(a). See JA-29a, 38a. <4> This Court has recognized the "wide discretion" Congress has given the EEOC to promulgate regulations governing discrimination charges. Bethlehem Steel, 765 F.2d at 429 (deferring to EEOC's "reasonable interpretation" of one such procedural regulation in reversing a district court's refusal to enforce EEOC administrative subpoena). The Commission's regulations, and its interpretation of them, are entitled to judicial deference because they address the EEOC's administrative processes and were promulgated under the EEOC's "clear statutory authority to issue procedural regulations." See Edelman v. Lynchburg Coll., 535 U.S. 106, 119 (2002) (Thomas, J., concurring) (Congress authorized EEOC "'to issue, amend, or rescind suitable procedural regulations to carry out the provisions of [Title VII]'"). As one Supreme Court justice observed in addressing a different aspect of the EEOC's administrative processes, deference to the EEOC is "particularly appropriate on this type of technical issue of agency procedure." EEOC v. Commercial Office Prods., 486 U.S. 107, 125 (1988) (O'Connor, J., concurring in judgment); see also Edelman, 535 U.S. at 120-24 (O'Connor, J., concurring in judgment). <5> The ADEA contains charge-filing requirements similar to those found in Title VII and the ADA, see 29 U.S.C. § 626(d)(1), and the ADEA's relation-back regulation is similar to Title VII's provision. Compare 29 C.F.R. § 1626.8(c), with 29 C.F.R. § 1601.12(b). <6> The EEOC believes Evans was wrongly decided. The Commission's ADEA regulations specifically provide: "Whenever a charge is filed under one statute and it is subsequently believed that the alleged discrimination constitutes an unlawful employment practice under another statute administered and enforced by the Commission, the charge may be so amended and timeliness determined from the date of filing of the original charge." 29 C.F.R. § 1626.22(c). Had this Court been aware of § 1626.22(c) when it decided Evans, this Court might have reached a different result. However, the Commission did not participate in Evans and there is no indication this Court considered § 1626.22(c) when it decided Evans, as the Court makes no mention of this provision in discussing the EEOC's relation-back regulation, 29 C.F.R. § 1626.8(c). See Evans, 80 F.3d at 963. This Court need not reach the question of whether Evans was wrongly decided, however; as explained above, Evans does not preclude relation-back in this case. <7> Four of the five other cases the district court cited for this point, JA-163a-164a, do not support the district court's ruling. Chanda v. Engelhard/ICC, 234 F.3d 1219, 1224-25 (11th Cir. 2000), did not involve a charge amendment, and the relation-back rule was never addressed by the court. The court in Manning v. Chevron Chem. Co., 332 F.3d 874, 879 (5th Cir. 2003), noted the Fifth Circuit's rule that a charge amendment alleging a new theory of recovery will relate back if the facts alleged in the original charge support the additional alleged basis for liability, but did not find the requisite facts present in the original charge. The court in Fairchild, 147 F.3d at 574-76, similarly denied relation-back based on "the circumstances presented . . . in this case," but stated it might have been "more sympathetic" if the plaintiff had "alleged facts that supported both claims" in the original charge. The court in Pejic v. Hughes Helicopters, Inc., 840 F.2d 667, 674- 75 (9th Cir. 1988), the court also declined to relate the ADEA charge amendment back to the original charge because the court found "no hint of age discrimination" in plaintiff's original Title VII charge; the court's statement that "Title VII and ADEA claims arise from entirely distinct statutory schemes," 840 F.2d at 675, was merely dicta. Only Simms v. Oklahoma ex rel. Dep't of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1327 (10th Cir. 1999), expressly followed Evans. Simms is inapposite because, like Evans, the court addressed the relation- back question in the context of a private enforcement action and, therefore, did not exercise the strictly limited judicial role this Court has mandated for subpoena enforcement proceedings. <8> Other circuits apply the same standard. See, e.g., EEOC v. Quad/Graphics, Inc., 63 F.3d 642, 648 (7th Cir. 1995) (employer must "show that compliance would threaten the normal operation of its business"); EEOC v. Citicorp Diners Club, Inc., 985 F.2d 1036, 1040 (10th Cir. 1993) (same; concluding standard not met despite company's assertion that compiling requested information would take two full-time employees six months; court said this showed "compliance would be inconvenient and involve some expense" but did not establish "undue burden"). <9> In the affidavit Randstad filed in district court, the company estimated it would take three employees (a database administrator, a developer, and a business analyst) 40 hours each at a total labor cost of $14,000 to $19,000. JA-109a-110a. This equals a weekly salary of $4,666 to $6,333, or an annual salary of $242,632 to $329,316, for each of these three employees. This salary range appears highly unlikely given the jobs these employees held. See JA-116a-117a (EEOC Reply Memorandum, at 6-7 & n.5).