No. 11-1759 _____________________________________ IN THE 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, District Judge, presiding Civil Action No. 1:10-cv-3472-RDB __________________________________________________________________ REPLY BRIEF of APPELLANT EQUAL EMPLOYMENT OPPORTUNITY COMMISSION __________________________________________________________________ P. DAVID LOPEZ SUSAN R. OXFORD General Counsel Attorney Equal Employment Opportunity CAROLYN L. WHEELER Commission Acting Associate General Counsel 131 M Street, N.E. Washington, DC 20507 LORRAINE C. DAVIS (202) 663-4791; Fax: (202) 663-7090 Assistant General Counsel susan.oxford@eeoc.gov TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 The District Court Erred in Refusing to Enforce the Subpoena because the EEOC does not Plainly Lack Authority to Conduct the Investigation, the Subpoena Seeks Relevant Information, and Randstad Failed to Demonstrate Undue Burden. . . . . . . . . . . . . . . . . . . . . 6 A. The district court erred as a matter of law in ruling the EEOC has no statutory authority to investigate Morrison's ADA allegations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 B. The information sought in subpoena items 3 and 4 is relevant to the EEOC's investigation. . . . . . . . . . . . . . . . . . . . . . . . . . . 15 C. Randstad has not demonstrated undue burden, and the district court clearly erred in finding it had. . . . . . . . . . . . . . . . . . . . . . . . . . 25 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 CERTIFICATE OF SERVICE TABLE OF AUTHORITIES Cases page EEOC v. Am. & Efird Mills, Inc., 964 F.2d 300 (4th Cir. 1992). . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10 EEOC v. Assoc. Dry Goods, 449 U.S. 590 (1981). . . . . . . . . . . . . . . . . . . . . 18 EEOC v. City of Norfolk Police Dep't, 45 F.3d 80 (4th Cir. 1995). . . . . . . . . . . . . . . . . . . . .5, 9, 10, 12, passim EEOC v. Dillon Companies, Inc., 310 F.3d 1271 (10th Cir. 2002). . . . . . . . . . . . . . . . . . . . . . . . 21, 22 EEOC v. Konica Minolta Bus. Solutions, 639 F.3d 366 (7th Cir. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 21 EEOC v. Kronos Inc., 639 F.3d 366 (7th Cir. 2011). . . . . . . . . . . . . . . . . . 18, 20 EEOC v. Lockheed Martin Corp., 116 F.3d 110 (4th Cir. 1997). . . . . . . . . . . . . . . 19 EEOC v. Maryland Cup Corp., 785 F.2d 471 (4th Cir. 1986). . . . . . . . . . . . . . . . . . . . . . . . 4, 25, 26 EEOC v. Ocean City Police Dep't, 820 F.2d 1378 (4th Cir. 1987) (en banc), judgment vacated and case remanded, 486 U.S. 1019 (1988). . . . . . . . . . . . . 9, 10 EEOC v. Roadway Express, Inc., 261 F.3d 634 (6th Cir. 2001). . . . . . . . . . . . . .22, 23 EEOC v. Roadway Express, Inc., 750 F.2d 40 (6th Cir. 1984). . . . . . . . . . . . . . 18, 23 EEOC v. Schwan's Home Serv., 644 F.3d 742 (8th 2011). . . . . . . . . . . . . . . . . 18, 20 EEOC v. Shell Oil Company, 466 U.S. 54 (1984) 3 EEOC v. United Air Lines, Inc., 287 F.3d 643 (7th Cir. 2002). . . . . . . . . . . . . . . 26 Faulkner v. Jones, 10 F.3d 226 (4th Cir. 1993). . . . . . . . . . . . . . . . . . . . . . .6 NLRB v. Carolina Food Processors, Inc., 81 F.3d 507 (4th Cir. 1996). . . . . . . . . . . . . . . . . . . . . . . . 6, 24, 26 O'Connor v. Donaldson, 422 U.S. 563 (1975). . . . . . . . . . . . . . . . . . . . . . . . 9 RZS Holdings AVV v. PDVSA Petroleo S.A., 506 F.3d 350 (4th Cir. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7 Solis v. Food Employers Labor Relations Ass'n, 644 F.3d 221 (4th Cir. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 26 United States v. Bailey (in re Subpoena Duces Tecum), 228 F.3d 341 (4th Cir. 2000). . . . . . . . . . . . . . . . . . . . . . . . . . .26, 27 Univ. of Pa. v. EEOC, 493 U.S. 182 (1990). . . . . . . . . . . . . . . . . . . . . . . . 19 Regulations 29 C.F.R. § 1601.12(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 INTRODUCTION In its opening brief, the Equal Employment Opportunity Commission (EEOC or Commission) argued that the district court abused its discretion when it refused to enforce the EEOC's administrative subpoena seeking information relevant to a charge of discrimination. See EEOC Opening Brief (EEOC Brf.) at 1- 2, 12. Kevin Morrison charged that Randstad discriminated against him based on national origin and/or disability in violation of Title VII of the Civil Rights Act of 1964 (Title VII) and the Americans with Disabilities Act (ADA), respectively, by refusing to consider him for employment because he cannot read English. See id. at 1-2, 12. The Commission's subpoena sought a description of position assignments made by Randstad from 2005 to 2010 and, for each position, the application, job order, and description, and whether reading and writing were required for the position. The Commission clarified in its opening brief that the EEOC seeks the requested information only with respect to laborer and warehouse worker positions-the types of positions Morrison sought. The EEOC does not seek any information related to clerical and administrative positions in office settings. Id. at 13 n.2. The Commission's opening brief demonstrated that the district court abused its discretion in three separate respects when it refused to enforce the EEOC's administrative subpoena. First, the district court's ruling that "the EEOC lacks jurisdiction to enforce the Subpoena," see Joint Appendix (JA)-165a, 192a-193a, is reversible error because the EEOC's statutory authority to conduct this investigation is not plainly lacking. See EEOC Brf. at 19-23 (authority for EEOC to investigate Morrison's Title VII charge not plainly lacking because Morrison's Title VII allegations were timely filed and have never been dismissed or resolved); id. at 23-33 (EEOC also has statutory authority to investigate Morrison's ADA allegations based on EEOC's "relation back" regulation). The EEOC's opening brief explained that the district court made no mention of the EEOC's statutory authority under Title VII and, in ruling the EEOC lacked statutory authority to investigate Morrison's charge under the ADA, erroneously engaged in a searching consideration of whether Morrison's ADA allegations are untimely. A court's role in a subpoena enforcement action is simply to determine if the agency has a plausible or arguable statutory basis for the investigation and, if so, to enforce the subpoena. Such a plausible basis exists here because under EEOC regulations, Morrison's charge amendment relates back to the date he filed his original charge. See id. at 23-33. The district court also abused its discretion when it held that the information subpoenaed is not relevant to the Commission's investigation. See EEOC Brf. at 35-41. The Commission noted that the Supreme Court has established a "generous" standard for relevancy in EEOC subpoenas. See id. at 35 (quoting EEOC v. Shell Oil, 466 U.S. 54, 64, 68-69 (1984)). The Commission argued that the information requested easily satisfies this standard of relevance. Randstad claims that it discharged Morrison from the Lenox job because Morrison cannot read English and that it has no jobs of any kind for workers who are unable to read. The information sought by the subpoena is clearly relevant as it would enable the Commission to evaluate Randstad's asserted explanation that, in effect, there were no jobs for which Morrison was qualified. This information also would enable the Commission to assess whether Randstad utilizes job qualification standards that improperly exclude individuals on the basis of national origin or disability. And the Commission certainly had reason to believe that might be the case here given that even though Morrison was unable to read when Randstad assigned him to work at Good Humor, Randstad concedes Morrison completed that assignment successfully. The requested information will allow the EEOC to investigate whether Randstad has any other jobs that Morrison and individuals like him could, in fact, perform but from which they are nonetheless excluded. Id. at 37-38. The Commission also argued in its opening brief that the EEOC's request for information over a period of several years for Randstad's thirteen Maryland offices reflects the Commission's reasonable judgment as to what constitutes the appropriate time period and geographic range to test Randstad's assertions. For this reason, the Commission argued that the district court clearly erred in ruling the requested information not relevant because it is "wide-ranging." Id. at 40. Finally, the Commission argued that the district court clearly erred in ruling that Randstad established "undue burden." See EEOC Brf. at 41-43. By considering only Randstad's asserted costs of compliance in the abstract, the district court ignored this Court's well-established legal standard that a respondent must prove that compliance with the subpoena "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 id. at 41-42 (quoting and citing EEOC v. Maryland Cup Corp., 785 F.2d 471, 479 (4th Cir. 1986) (emphasis added)). The Commission argued that Randstad's assertion that three Randstad employees would need to spend 40 hours each to sort and compile electronic data at an estimated labor cost of $14,000 to $19,000 appears highly inflated on its face. In any event, Randstad's assertion fails to satisfy this Court's legal standard because Randstad offered no evidence comparing this estimated cost to the company's normal operating costs or establishing that complying with the subpoena "would threaten [the company's] normal business operations." See id. at 42-43 & n.9. In its Response Brief, Randstad argues the Commission failed to demonstrate that the district court abused its discretion in refusing to enforce this subpoena. Randstad concedes that Title VII provides a statutory basis for the EEOC's investigation and argues that the district court implicitly recognized this, but argues that the requested information is not relevant to the EEOC's investigation of Morrison's Title VII allegations. Randstad Response Brief (Resp.Brf.) at 23-33. Randstad apparently concedes the requested information is relevant to Morrison's ADA allegations, but argues that Morrison's amended charge is untimely on its face and that the district court properly ruled, on that basis, that the EEOC lacks statutory authority under the ADA to conduct this investigation and subpoena the requested information. See Resp.Brf. at 19-23 (citing EEOC v. City of Norfolk Police Dep't, 45 F.3d 80, 83 (4th Cir. 1995)). Finally, Randstad argues that the district court applied the correct legal standard and correctly found that Randstad has established "undue burden." Resp.Brf. at 33-34. In each of these arguments, Randstad misrepresents the Commission's positions, misleadingly omits portions of the relevant EEOC regulations, and mischaracterizes this Court's legal precedents. As the EEOC's opening brief demonstrated and as further explained herein, the district court abused its discretion in refusing to enforce the EEOC's subpoena, and Randstad's Response Brief fails to demonstrate otherwise. ARGUMENT The District Court Erred in Refusing to Enforce the Subpoena because the EEOC does not Plainly Lack Authority to Conduct the Investigation, the Subpoena Seeks Relevant Information, and Randstad Failed to Demonstrate Undue Burden. Randstad argues that this Court should review the district court's refusal to enforce the EEOC's administrative subpoena under a deferential "abuse of discretion" standard, citing NLRB v. Carolina Food Processors, Inc., 81 F.3d 507, 510 (4th Cir. 1996). See Resp.Brf. 18. Randstad fails to note, however, that this Court reviews de novo questions of law that arise in a subpoena enforcement action, such as whether the Commission presented an arguable basis for statutory authorization to conduct the investigation based on Morrison's amended charge and whether the EEOC is statutorily authorized to investigate potential discrimination against other employees based on one employee's individual discrimination charge. See, e.g., Solis v. Food Employers Labor Relations Ass'n, 644 F.3d 221, 226 (4th Cir. 2011); 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). And where a district court applies an incorrect legal standard to the EEOC's enforcement application, no deference attaches to the district court's resulting denial of enforcement. See Faulkner v. Jones, 10 F.3d 226, 236 n.1 (4th Cir. 1993); see also RZS Holdings AVV v. PDVSA Petroleo S.A., 506 F.3d 350, 356 (4th Cir. 2007) ("By definition, a district court abuses its discretion when it makes an error of law."). The district court here applied the wrong legal standards in each of its determinations underlying the court's refusal to enforce the Commission's subpoena, including determinations related to the EEOC's statutory authority to conduct an investigation based on an amended charge, the breadth of the investigation that the EEOC is statutorily authorized to conduct in response to a charge involving an employer's general policy, and what constitutes an "undue burden" on a respondent. As explained in the EEOC's opening brief and as further clarified here, the district court's resulting conclusions are not entitled to deference and constitute reversible error. A. The district court erred as a matter of law in ruling the EEOC has no statutory authority to investigate Morrison's ADA allegations. As noted above, Randstad asserts that the district court found statutory authority for the EEOC to investigate Morrison's Title VII charge but ruled the requested items not relevant to Morrison's national origin allegations. See Resp.Brf. at 14-16, 24. It is not clear the district court actually found statutory authority for the EEOC's investigation under Title VII.<1> Since Randstad concedes this point, however, this Court need only consider-with respect to Title VII-the district court's error concerning the requested items' relevancy to the Commission's Title VII investigation, which the Commission discusses infra. The EEOC also has statutory authority to conduct this investigation and to issue this subpoena under the ADA. Randstad makes no argument that the information sought in the subpoena is not relevant to the EEOC's investigation of Morrison's ADA allegations in the amended charge, Resp.Brf. at 24-33, arguing instead that the ADA allegations are untimely and, therefore, do not provide the requisite statutory authorization, id. at 22. Randstad wrongly asserts that the EEOC "conceded" the district court applied the correct legal standard in determining that the Amended Charge is untimely and that the EEOC "accepts" as "correct" the district court's ruling that "Morrison's Amended Charge is untimely on its face." Id. at 19-20. The EEOC's opening brief explained that under EEOC regulations- regulations that are entitled to judicial deference-Morrison's ADA charge amendment relates back to the date he filed his original charge and, therefore, provides statutory authority for the EEOC's investigation. EEOC Brf. at 24-33. In arguing to the contrary, Randstad asserts that the district court looked at the face of the amended charge, noted it was filed with the Commission more than 300 days after Randstad discharged Morrison and, on that basis, concluded that under EEOC v. City of Norfolk Police Dep't, 45 F.3d 80 (4th Cir. 1995), Morrison's ADA allegations could not provide the requisite jurisdiction for the EEOC's investigation. Resp.Brf. at 19-23. Randstad's reasoning is flawed, misconstrues this Court's decisions in City of Norfolk and EEOC v. Ocean City Police Dep't, 820 F.2d 1378 (4th Cir. 1987) (en banc), judgment vacated and case remanded, 486 U.S. 1019 (1988), and mischaracterizes the EEOC's regulation providing that charge amendments relate back to the date of the original charge. Randstad misconstrues this Court's holdings in Ocean City and City of Norfolk. Randstad argues that those cases hold "'if the charge shows on its face that it is untimely' then 'enforcement of a subpoena based on that charge should be denied.'" Resp.Brf. at 21 (quoting Ocean City, 820 F.2d 1378, as quoted in City of Norfolk, 45 F.3d at 83). Given the Supreme Court vacated the judgment in Ocean City, however, even this Court has expressed doubt that Ocean City has any continuing precedential value. See City of Norfolk, 45 F.3d at 83 n.4 (questioning continued precedential value of Ocean City and citing O'Connor v. Donaldson, 422 U.S. 563, 578 n.2 (1975) (decision vacating court of appeals judgment "deprives that court's opinion of precedential effect," leaving Supreme Court opinion and judgment as "the sole law of the case")); see also EEOC v. Am. & Efird Mills, 964 F.2d 300, 304 n.6 (4th Cir. 1992) (noting "uncertain nature" of Ocean City as precedent). In any case, this Court explained in City of Norfolk that, even assuming Ocean City retains any precedential value, Ocean City did not hold, as Randstad wrongly implies (see Resp.Brf. at 19-21), that a "timely filed charge" is a prerequisite to judicial enforcement of a subpoena or that "'subpoenas should be enforced only where there is concededly no timeliness problem.'" City of Norfolk, 45 F.3d at 83 (quoting Ocean City, 820 F.2d at 1383 n.9). Rather, this Court clarified that Ocean City held a court should decline to enforce an EEOC subpoena only "'if there are no facts in dispute relating to the timeliness of the charge,' if the charge 'shows on its face that it is untimely,'" and "'if the filing of the charge is concededly out of time or . . . such is otherwise apparent.'" Id. (quoting Ocean City, 820 F.2d at 1381, 1380, and 1383 n.9) (emphasis added by this Court). In refusing to enforce the EEOC's subpoena, the district court quoted only a portion of the relevant rule from Ocean City, and then misapplied it. The district court summarized the rule as requiring that an EEOC subpoena not be enforced if "a charge . . . shows on its face that it is untimely," JA-162a, omitting this Court's additional requirement that the filing of the charge must also be "concededly out of time" or untimeliness must be "otherwise apparent." City of Norfolk, 45 F.3d at 83.<2> The court's omission is significant because the EEOC does not concede that the ADA allegations are out of time, and untimeliness is not "otherwise apparent." To the contrary, the EEOC contends that, under its regulations, the ADA allegations in the amended charge relate back to the date the unquestionably timely original Title VII charge was filed. In addition, the district court misapplied even the portion of the standard from Ocean City it relies on, because Morrison's amended charge does not "show on its face that it is untimely." Morrison's amended charge must be read in conjunction with the charge it amended. In other words, even assuming the proper approach is simply to examine the "face" of the charge, where, as here, the charge has been amended, the "face" of the charge consists of both documents: the original charge filed in 2007, which was indisputably timely, and the charge amendment filed in 2009, which relates back to the date of the original charge. See JA-30a, 39a. Under this analysis, it simply cannot be said that the amended charge is untimely on its face. Thus, even if Ocean City retains any precedential value after the Supreme Court vacated this Court's judgment in the case, the district court misconstrued this Court's holding in that case when it ruled Morrison's ADA allegations "untimely." Randstad is wholly mistaken when it argues that the district court was "compelled by the plain language of this Court's decision in" City of Norfolk (quoting Ocean City) to conclude that the ADA allegations in the amended charge "did not provide jurisdiction for the subpoena." Resp.Brf. at 19. This Court actually ruled in City of Norfolk that the EEOC's subpoena should be enforced, City of Norfolk, 45 F.3d at 81, and Randstad's effort to distinguish that result from this case also fails to pass muster. Randstad argues that City of Norfolk "was decided on facts vastly different from the instance case." Resp.Brf. at 21 n.4. But although the factual contexts differ, the legal rule this Court applied in City of Norfolk to reverse the district court's refusal to enforce the subpoena applies equally here. In City of Norfolk, this Court recognized that where it is "at least arguable" that the charge is timely, this Court's "precedent favors enforcement of the EEOC subpoena." City of Norfolk, 45 F.3d at 85. As the EEOC explained in its opening brief, applying that rule here, it is "at least arguable" that the ADA allegations in Morrison's amended charge relate back to his original charge and, therefore, state a claim for employment discrimination that the EEOC has statutory authority to investigate. See EEOC Brf. at 23-26. Thus, City of Norfolk favors enforcement of the EEOC's subpoena. In arguing that the EEOC's subpoena should not be enforced because Morrison's charge cannot relate back to his original charge, Randstad misleadingly omits and fails to address critical provisions of the EEOC's relation-back regulation. The EEOC's regulations permit a charging party to, among other things, amend a charge "to clarify and amplify allegations made therein." See EEOC Brf. at 25 (quoting 29 C.F.R. § 1601.12(b)). The regulation further provides that "such amendments" (i.e., amendments that "clarify and amplify" the original allegations) and "amendments alleging additional acts which constitute unlawful employment practices related to or growing out of the subject matter of the original charge" all "relate back to the date the charge was first received." Id. (quoting 29 C.F.R. § 1601.12(b)). Randstad focuses only on the portion of the regulation pertaining to "additional acts of discrimination," Resp.Brf. at 22, ignoring the portion of the regulation that permits amendments that "clarify and amplify allegations made" in the original charge. Morrison's amended charge clarified and amplified his original allegations by alleging that Randstad's decision to terminate him because he cannot read constitutes a failure to accommodate his (intellectual) disability in violation of the ADA. See JA-39a (Amended Charge). Because this amplification falls squarely within the scope of the EEOC's relation-back regulation, the EEOC has made a more than plausible argument that the ADA allegations in the amended charge relate back to the date Morrison filed his original charge alleging a violation of Title VII. The district court initially recognized the "clarify and amplify" portion of the EEOC's relation-back regulation, see JA-163a, but thereafter mistakenly focused only on "the regulation's language allowing an amended charge to allege additional acts" and stated that the EEOC "misinterprets" this language as also allowing a charging party "to add an additional basis for legal liability." See JA- 164a-165a. To the extent the district court believed the EEOC's regulations limit charge amendments to allegations of additional acts of discrimination, the court was mistaken. As the EEOC argued below and on appeal, the relation-back regulation permits a charging party like Morrison to amend his charge to "clarify" and "amplify" his original allegations by adding an additional potential explanation for the discrimination he experienced. See JA-21a (EEOC subpoena enforcement application); EEOC Brf. at 26 (arguing Morrison's charge amendment "clarifies" that disability discrimination "is another possible explanation for the employment action referenced in the original charge"). Considering the regulation in its entirety, and according the proper deference to the EEOC's interpretation of it (see EEOC Brf. at 21-22 n.4, 25), the district court clearly erred in ruling that the EEOC has no statutory authority to investigate Morrison's ADA allegations. Randstad's arguments to the contrary are unavailing.<3> B. The information sought in subpoena items 3 and 4 is relevant to the EEOC's investigation. The EEOC argued in its opening brief that the standard for relevancy in an action to enforce an administrative subpoena is "not especially constraining" and that subpoena items 3 and 4 are relevant to the EEOC's investigation of Morrison's Title VII and ADA allegations under this "generous" standard. EEOC Brf. at 35- 41. As the EEOC explained, Randstad represented to the Commission, in its response to Morrison's charge, that it terminated Morrison's employment because he cannot read and that it has no jobs of any kind for individuals who cannot read (not even warehouse and laborer positions). Id. at 4-5. Given Randstad's representations, the EEOC is investigating whether Randstad imposes a literacy requirement that discriminates against employees based on national origin (because, for example, they-like Morrison-immigrated to this country from a country where they did not speak English and, as a result, cannot read English) or disability (because they-like Morrison-are unable to read because of an intellectual disability).<4> Id. at 37, 39. Knowing the types of warehouse and laborer assignments Randstad made in the region that includes the Hagerstown office (i.e., Randstad's thirteen Maryland offices) in the years during and after which Morrison worked for Randstad will help the Commission to determine whether Randstad's de facto literacy policy discriminates on the basis of national origin or disability or both. Id. at 40. Randstad incorrectly states that the district court "found . . . that Randstad never maintained a literacy policy." Resp.Brf. at 24 (citing JA-156a). The court simply quoted Randstad's brief below in which Randstad admitted that "reading is not an explicit job requirement . . . for any Randstad client" but asserted that, in Randstad's view, the ability to read "is an implicit requirement for virtually every light industrial client assignment." See JA-156a (quoting from R.7 at 3-4 (JA-66a- 67a)). Accordingly, it does not appear the district court made any "finding" that Randstad "never maintained a literacy policy." Moreover, any such a finding would be clearly erroneous, as it is contrary to Randstad's repeated assertions that it views English literacy as an implicit requirement of all or virtually all job assignments to light industrial clients. See, e.g., JA-53a (Randstad "requires talent to be at least literate at a remedial level"); see also JA-35a-36a, 53a, 66a-67a. Furthermore, since the EEOC's subpoena seeks, in part, to investigate the extent to which such an implicit job requirement actually exists, any definitive finding by the district court on this point would also constitute an improper consideration of the merits of the underlying charge, which the district court is not permitted to do at the subpoena enforcement stage. See, e.g., City of Norfolk, 45 F.3d at 82 (process of judicial review of subpoena enforcement is not for a determination of underlying claim on its merits). Randstad acknowledges that the appropriate standard for determining relevancy is whether the requested information "'might throw light upon' the inquiry raised in the complaint," and Randstad concurs with the district court's observation that administrative subpoenas "must be enforced unless the evidence sought is 'plainly incompetent or irrelevant.'" See Resp.Brf. at 23-24 (citing JA- 161a; other citation omitted). Randstad apparently concedes that the Commission has statutory authority to investigate Morrison's charge under Title VII, see id. at 19-24, but asserts the district court properly found the information sought in subpoena items 3 and 4 not relevant to Morrison's national origin claim. See, e.g., id. at 27. In so arguing, Randstad misapprehends the "relevance" standard applicable to Commission investigations. Randstad argues, for instance, that the Commission has not articulated any explanation of how the requested job descriptions and job orders for warehouse and laborer positions filled by Randstad's other Maryland offices in the years following Morrison's employment "'might throw light upon' Morrison's allegation of individual national origin discrimination." Id. Courts, however, have routinely recognized that information regarding the treatment of other employees or applicants may cast light on a charging party's allegation of discriminatory treatment. See, e.g., EEOC v. Assoc. Dry Goods, 449 U.S. 590, 604 (1981) ("[I]nformation about an employer's general practices may certainly be relevant to individual charges of discrimination."); EEOC v. Schwan's Home Serv., 644 F.3d 742, 748 (8th Cir. 2011) (information sought in EEOC subpoena concerning other employees "is relevant to Milliren's charge of individual . . . gender discrimination"); EEOC v. Kronos, Inc., 620 F.3d 287, 296-99 (3d Cir. 2010) (discussing cases and ruling court abused its discretion when it limited EEOC's access to information, holding that information about other job categories and geographic locations is relevant to investigation of individual charge); EEOC v. Roadway Express, Inc., 750 F.2d 40, 43 (6th Cir. 1984) ("'[E]vidence concerning employment practices other than those specifically charged by complainants' may be sought by an EEOC administrative subpoena."). In this particular case, the EEOC believes that knowing the types of warehouse and laborer assignments Randstad has filled in the past few years will help the EEOC to assess whether Randstad's admitted English literacy policy discriminated against Morrison because there were, in fact, jobs he could have performed despite his inability to read.<5> "[A]n alleged perpetrator of discrimination cannot be allowed to pick and choose the evidence . . . necessary for an agency investigation." Univ. of Pa. v. EEOC, 493 U.S. 182, 193 (1990). Rather, as this Court recognized, "[c]ourts defer to an agency's own appraisal of what is relevant 'so long as it is not "obviously wrong."'" EEOC v. Lockheed Martin Corp., 116 F.3d 110, 113 (4th Cir. 1997) (citations omitted). The Commission's determination that the requested information is relevant to its investigation of Morrison's discrimination charge is not "obviously wrong." Furthermore, and contrary to Randstad's implication (Resp.Brf. at 24), the Commission is not limited to obtaining information solely based on its relevance to Morrison's individual allegations of national origin or disability discrimination. As the Commission explained both in its opening brief and in the district court below (EEOC Brf. at 35-37; JA-15a-16a, 19a-20a, 111a, 113a-114a, 174a-175a, 188a), the EEOC is entitled to expand its investigation of Morrison's individual charge and assess whether other employees have been affected by the same forms of discrimination. This is true, even where the charge itself does not allege systemic or class-wide discrimination. See, e.g., Schwan's, 644 F.3d at 748; Kronos, 620 F.3d at 296-99. The information requested in subpoena items 3 and 4 will assist the Commission in determining not only whether Morrison experienced discrimination, but also whether other individuals experienced discrimination based on national origin or disability because of an inability to read English.<6> To the extent the district court premised its relevancy ruling on an assumption that the Commission may only seek information that pertains directly to Morrison's individual discrimination claim, that rationale is incorrect. The cases on which the EEOC relied in its opening brief are not inapposite, as Randstad incorrectly argues. See Resp.Brf. at 27-32. Randstad asserts these cases provide no support for the EEOC because they involved multiple charging parties or class-wide discrimination or did not seek wide-ranging information.<7> The point of these cases is not that they fall squarely in line with the facts in this case, but that they offer guiding legal principles that are equally applicable here. In EEOC v. Dillon Companies, Inc., for example (EEOC Brf. at 40), the Tenth Circuit upheld the EEOC's right, while investigating a charge of disability discrimination brought by a single employee who alleged she was not reasonably accommodated at a single store, to subpoena information about vacancies in other stores besides the one to which the charging party had applied. 310 F.3d 1271, 1272-73 (10th Cir. 2002). The company objected to producing information from the other stores, arguing that such information was irrelevant to the EEOC's investigation because no accommodation was possible at those stores due to the company's seniority system. Id. at 1276. The Tenth Circuit rejected this argument, stating it would not permit Dillon "to turn a summary subpoena- enforcement proceeding into a mini-trial by allowing it to interpose defenses that are more properly addressed at trial." Id. at 1277. Randstad argues Dillon is inapposite because the EEOC only sought information from a total of three stores for a one-month period, and here the Commission seeks information from thirteen Randstad offices for a period of six years. Resp.Brf. at 30. The fact that the EEOC only needed one-month's worth of information in Dillon does not alter the import of the legal principle the Tenth Circuit articulated and applied-a principle equally applicable here-that the EEOC is not limited to the information that the employer believes relevant or that pertains solely to the specific location where the charging party worked; rather, the EEOC is entitled to enforcement of its administrative subpoenas, even when they seek broader information, as long as they are not "'plainly incompetent or irrelevant to any lawful purpose.'" Dillon, 310 F.3d at 1274-75 (citations omitted. Similarly, the Sixth Circuit upheld the district court's order enforcing the EEOC's subpoena in EEOC v. Roadway Express, Inc., 261 F.3d 634 (6th Cir. 2001), even though the charge alleged only sex discrimination in hiring and race discrimination in promotion, and the subpoena sought information about promotion of women and hiring of blacks. Id. at 637-38. The Sixth Circuit observed that "evidence that an employer discriminated in one situation or employment position is relevant to a determination of whether the employer discriminated in other circumstances." Id. at 638. Randstad argues that the case is inapposite because it involved a Commissioner's charge. Resp.Brf. at 28-29. The point, however, is that the Sixth Circuit recognized that Congress did not intend the EEOC's investigation to be constrained by the narrow terms of a charge and, on that basis, enforced a subpoena seeking information that was broader than the specific allegations in the charge. See EEOC Brf. at 35-36. The Sixth Circuit found the information the EEOC requested "relevant" under Shell Oil's "generous relevancy standard" reflecting the "broad access" to information that Congress intended the EEOC to have, noting that the same broad standard of relevance applies whether the EEOC is investigating a Commissioner's charge or an individual charge. See Roadway Express, 261 F.3d at 638-40. Randstad's efforts to distinguish the other cases the EEOC cited in its opening brief are similarly unavailing. See, e.g., Roadway Express, 750 F.2d at 43 (Randstad asserts the case is distinguishable because there were two charging parties instead of one as in this case, see Resp.Brf. at 29, but Roadway objected to the EEOC's subpoena for the same reason Randstad objects here-that the subpoena requested broad information not directly related to the two charging parties-and the Sixth Circuit held that "relevance" included "employment practices other than those specifically charge") (discussed in EEOC Brf. at 36-37). In each of these cases-whether the charge in question alleged individual discrimination, multiple claims of discrimination, or systemic discrimination-the courts reaffirmed the general principle that the EEOC's investigative authority is broad enough to pursue any discrimination the EEOC uncovers during the course of a reasonable investigation. Finally, Randstad offers no support for its assertion that the EEOC's subpoena requests "hundreds of thousands of job descriptions and job applications." See Resp.Brf. at 27. Below, Randstad estimated that producing subpoena items 3 and 4 "would include over 100,000 assignments," not "hundreds of thousands" of documents. See JA-109a (Jason Wolfe Declaration). And since that estimate included clerical and administrative positions in office settings, which the EEOC has now excluded (see EEOC Brf. at 13 n.2), the current estimate should be significantly less than 100,000 job assignments. Randstad provides no record support for its current, inflated estimate. In any event, since there is no dispute that the clerical and administrative positions Randstad fills in office settings require an ability to read that Morrison does not have, the district court should have simply excluded those positions from the EEOC's subpoena request and then enforced the Commission's subpoena with respect to the remaining job assignments. Cf. Carolina Food Processors, 81 F.3d at 513 (court's decision to permit respondent to redact extraneous information from subpoenaed documents before producing them "cured" problem of overbreadth). Instead, the district court improperly relied on Morrison's lack of qualification for clerical positions to support the court's determination that subpoena items 3 and 4 are entirely irrelevant to the EEOC's investigation. JA-166a. The district court clearly erred when it found all job positions irrelevant based on the conclusion that Morrison is not qualified to perform a portion of Randstad's job assignments. In sum, the Commission explained the relevance of the requested information below, and the reasons the district court gave for rejecting the Commission's position do not square with this Court's relevancy standards. Randstad offers no persuasive reasons to sustain the district court's ruling. C. Randstad has not demonstrated undue burden, and the district court clearly erred in finding it had. The Commission argued in its opening brief that the district court failed to apply the correct standard when it held that Randstad demonstrated "undue burden." EEOC Brf. at 41-42. It is a respondent's burden to establish that compliance with an EEOC subpoena would pose an "undue burden," and this Court has stated that this burden is "not easily met." Id. at 41 (quoting Maryland Cup, 785 F.2d at 477). This Court further explained, in Maryland Cup, that a respondent can demonstrate "undue burden" in one of two ways: either by showing that the cost of gathering the information would be "unduly burdensome in light of the company's normal operating costs" or by demonstrating that "gathering the information would threaten [the company's] normal business operations." Id. (quoting Maryland Cup, 785 F.2d at 479 (emphasis added)). Other circuits apply variations of this same standard. See id. at 41 n.8 (citing cases).<8> Randstad does not dispute that the district court failed to apply this standard, but argues that the EEOC "overstates" this Court's holding in Maryland Cup and that the language quoted above is not a "well-established test." Resp.Brf. at 33-34. Randstad is mistaken; not only have other circuit courts adopted the same test but, since deciding Maryland Cup-indeed, as recently as this year- this Court has cited Maryland Cup as the standard for "undue burden" in the context of an administrative subpoena. See, e.g., Solis, 644 F.3d at 226; Carolina Food Processors, 81 F.3d at 513-14. Randstad further argues that a well-established test for undue burden cannot exist because "issues of undue burden are intertwined with relevancy issues," citing a decision involving a criminal investigation in which this Court stated that measuring the burden on a witness of producing documents in a criminal investigation cannot be reduced to a formula because relevancy and breadth of the subpoena relate to the nature and purpose of the underlying inquiry. See Resp.Brf. at 34 (quoting United States v. Bailey (In re Subpoena Duces Tecum), 228 F.3d 341, 347 (4th Cir. 2000)). Randstad repeats, virtually verbatim, the district court's discussion of Bailey in the court's decision denying reconsideration (compare Resp.Brf. at 33-34 with JA-193a-194a), and neither Randstad nor the district court explains how Bailey's Fourth Amendment analysis supports the district court's ruling that the EEOC's subpoena request would impose an undue burden on Randstad. In fact, nothing in Bailey bears on the fundamental question before this Court-whether the district court abused its discretion and erred as a matter of law when it found "undue burden" without even applying this Court's test. Indeed, on this record the district court could not have found "undue burden," even if it had applied this Court's test from Maryland Cup, because Randstad failed to offer any evidence either comparing its estimated cost of compliance to its normal operating costs or demonstrating that production of the requested information would threaten to disrupt Randstad's normal business operations. See EEOC Brf. at 42. Finally, Randstad argues, incorrectly, that the Commission did not challenge any of the factual findings underlying the district court's ruling on "undue burden." Resp.Brf. at 33. To the contrary, in its opening brief-as it did below-the Commission challenged Randstad's cost estimate as "excessive on its face." See EEOC Brf. at 42 & n.9; JA-116a-117a (EEOC reply brief below). The district court nevertheless relied on this cost estimate alone, without comparing it to Randstad's normal operating costs. Because the district court failed to apply this Court's standard for undue burden and relied on a cost estimate that appears excessive on its face, the district court committed reversible error in finding "undue burden." CONCLUSION The Commission respectfully urges this Court to reverse the district court's decision and to order Randstad to comply with items 3 and 4 of the EEOC's administrative subpoena (excluding clerical and administrative positions in office settings). Respectfully submitted, P. DAVID LOPEZ General Counsel CAROLYN L. WHEELER Acting Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel ___________________________________ 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 Dated: November 21, 2011 CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 6,527 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. 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: November 21, 2011 CERTIFICATE OF SERVICE I, Susan R. Oxford, hereby certify that on November 21, 2011, I filed this Reply Brief, in pdf format, 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 identical Reply Brief by United Parcel Service, postage pre-paid. 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> Although the hearing transcript reflects an extended dialog between the district court and the EEOC's counsel concerning the Title VII allegations, JA-131a-136a, the district court's original opinion makes absolutely no mention of Title VII in its discussion of statutory authority, and, in denying reconsideration, the court appears to address statutory authority only under the ADA. See JA-161a-165a, 192a-193a. <2> The district court also failed to mention the requirement that there be "no facts in dispute relating to the timeliness of the charge." This omission was harmless, however, because there is no dispute concerning the underlying facts that are relevant to timeliness (i.e., the dates Randstad discharged Morrison and Morrison filed his original and amended charges). Rather, the dispute turns on the legal question of whether Morrison's amended charge relates back to his indisputably timely original charge. <3> Randstad reads too much into the EEOC's public website in citing it for the proposition that charges can be amended only when additional discriminatory acts occur after a charging party files his or her charge. See Resp.Brf. at 8 n.1. The website is intended to provide general information to the public and, on this particular point, provides one example of when a charging party might amend a charge. The website does not describe every circumstance in which a charging party might amend a charge and certainly does not supersede the Commission's formal regulations on this point. <4> Randstad asserts, incorrectly, that the EEOC arranged for the psychological evaluation that revealed Morrison's intellectual disability. Resp.Brf. at 7. Morrison's psychological evaluation was conducted in 2006, well before Morrison filed his original charge and before Randstad even assigned Morrison to the Lenox job. The Commission learned of the 2006 evaluation shortly before Morrison amended his charge in January 2009. <5> The Commission made this same argument below. See, e.g., JA-17a ("The subpoena seeks information necessary to identify positions available through Randstad that may not have required reading."). Thus, there is no merit to Randstad's contention (Resp.Brf. at 25) that the EEOC waived this argument on appeal by not raising it below. <6> See JA-15a ("EEOC is investigating allegations that [Randstad] fails to hire and terminates employees who are unable to read. . . . [Randstad's] practice of requiring literacy may have a disparate impact on Jamaicans and others who are not fluent in English due to their national origin."); JA-16a ("Discrimination based on ability to read may constitute a violation of the ADA."); JA-19a ("The Commission seeks to obtain information regarding the requirements for various positions available through [Randstad] and the applicant pools for these positions. This information may uncover the existence of other individuals who have been harmed by Randstad's literacy policy."), 111a (Randstad's refusal to assign Morrison based on his inability to read "may not be an isolated incident"). <7> Randstad's attempt to distinguish EEOC v. Konica Minolta Bus. Solutions, 639 F.3d 366 (7th Cir. 2011), see Resp.Brf. at 27-28, is wholly misplaced; the Commission relied on Konica only to show that interpreting an EEOC charge is a question of law reviewed de novo, and not for any point other than the standard of review. See EEOC Brf. at 15. <8> The Seventh Circuit, for example, in EEOC v. United Air Lines, Inc., 287 F.3d 643 (7th Cir. 2002)-the case on which the district court relied (see JA-167a)- stated a respondent's estimated 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." Id. at 653-54 (emphasis added).