Equal Employment Opportunity Commission v. Roadway Express, Inc. 00-3092 IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT No. 00-3092 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Petitioner-Appellee, v. ROADWAY EXPRESS, INC., Respondent-Appellant. On Appeal from the United States District Court for the Northern District of Ohio, Eastern Division PROOF BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS PETITIONER-APPELLEE C. GREGORY STEWART General Counsel PHILIP B. SKLOVER Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel CAREN I. FRIEDMAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, NW, 7th Floor Washington, D.C. 20507 (202) 663-4720 TABLE OF CONTENTS TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . ii STATEMENT REGARDING ORAL ARGUMENT . . . . . . . . . . . . . . . . v STATEMENT OF JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF ISSUE PRESENTED FOR REVIEW . . . . . . . . . . . . 2 STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . 10 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 1. Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 2. The district court did not abuse its discretion in enforcing the Commission's subpoena . . . . . . . . . . . . . . 15 a. Gender data of employees promoted into sales and upper-level management positions, and race data of individuals hired into operative and laborer positions are relevant to the charge under investigation . . . . . . . . . . . . . . . . . . . . . . . . . . 17 b. Post-charge information is relevant to the charge under investigation. . . . . . . . . . . . . . . . . . . 35 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 CERTIFICATES OF COMPLIANCE AND SERVICE TABLE: CROSS-DESIGNATION OF APPENDIX CONTENTS TABLE OF AUTHORITIES FEDERAL CASES Blue Bell Boots v. EEOC, 418 F.2d 355 (6th Cir. 1969). . . . . 11, 18, 19,20, 21, 22,24, 32, 41 East Texas Motor Freight System, Inc. v. Rodriguez, 431 U.S. 395 (1977) . . . . . . . . . . . . . . . . . . . . . . . 21, 22 EEOC v. Cambridge Tile Manufacturing Co., 590 F.2d 205 (6th Cir. 1979) (per curiam). . . . . . . . . . . . . . . . 22, 23, 24,32, 40, 41 EEOC v. Ford Motor Credit Co., 26 F.3d 44 (6th Cir. 1994). . . . . 16, 32,33, 38 EEOC v. K-Mart Corp., 796 F.2d 139 (6th Cir. 1986) . . . . . . . . . 14, 30, 38 EEOC v. Roadway Express, Inc., 75 F. Supp. 2d 767 (N.D. Ohio 1999) . . . . . . . . . . . . . . . . . . . . . 9, 10, 15,17, 28, 36 EEOC v. Roadway Express, Inc., 750 F.2d 40 (6th Cir. 1984), (per curiam), aff'g 580 F. Supp. 1063 (W.D. Tenn.) . . . . .. . 9, 14, 34,38 EEOC v. Shell Oil Co., 466 U.S. 54 (1984) . . . . . . . . . . . . . . . . passim Engineering Contractors Ass'n of South Florida, Inc. v. Metropolitan Dade County, 122 F.3d 895 (11th Cir. 1997) . . . . 28 NLRB v. Detroit Newspapers, 185 F.3d 602 (6th Cir. 1999). . . . . . . . 15 Police Officers for Equal Rights v. City of Columbus, 644 F. Supp. 393 (S.D. Ohio 1985), aff'd, 916 F.2d 1092 (6th Cir. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Thaddeus-X v. Blatter, 175 F.3d 378 (6th Cir. 1999) . . . . . . . . . . . 15 University of Penn. v. EEOC, 493 U.S. 182 (1990) . . . . . . . . . . . . 44 FEDERAL STATUTES 28 U.S.C. § 1291 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 28 U.S.C. §§ 1331, 1345 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 42 U.S.C. § 2000e-5(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 42 U.S.C. § 2000e-8(a) . . . . . . . . . . . . . . 9, 10, 15,17, 22, 29,43 42 U.S.C. § 2000e-9 . . . . . . . . . . . . . . . . . . . . . 1, 6, 8-9,36 National Labor Relations Act, 29 U.S.C. § 161 . . . . . . . . . . . . . . . 6 FEDERAL REGULATIONS 29 C.F.R. § 1601.12(a)(3) . . . . . . . . . . . . . . . . . . . . . . . 36 29 C.F.R. § 1601.16(b). . . . . . . . . . . . . . . . . . . . . . . . . . 6 FEDERAL RULES Fed. R. Civ. P. 23 . . . . . . . . . . . . . . . . .. . . . . . . . . . . 21 LEGISLATIVE HISTORY H.R. Rep. No. 92-238, 92d Cong., 2d Sess., reprinted in, 1972 U.S.C.C.A.N. 2139 . . . . . . . . . . . . . . 31, 40 S. Rep. No. 92-415 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 STATEMENT REGARDING ORAL ARGUMENT The Equal Employment Opportunity Commission does not request oral argument. In our view, this is a routine subpoena enforcement action controlled by existing precedent of this Court and the Supreme Court. IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT No. 00-3092 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Petitioner-Appellee, v. ROADWAY EXPRESS, INC., Respondent-Appellant. On Appeal from the United States District Court for the Northern District of Ohio, Eastern Division PROOF BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS PETITIONER-APPELLEE STATEMENT OF JURISDICTION The district court had jurisdiction pursuant to 28 U.S.C. §§ 1331, 1345 and 42 U.S.C. § 2000e-9. On December 15, 1999, the district court granted the Commission's Application for Order to Show Cause (R.12 Order, Apx. pg. __), and entered judgment the same day. (R.13 Judgment in Favor of Petitioner EEOC, Apx. pg. __). Respondent Roadway Express, Inc. ("Roadway") filed a timely notice of appeal on January 12, 2000. (R.14 Notice of Appeal, Apx. pg. __). This Court has jurisdiction to review the district court's final decision pursuant to 28 U.S.C. § 1291. STATEMENT OF ISSUE PRESENTED FOR REVIEW Whether the district court abused its discretion in enforcing the Commission's subpoena. STATEMENT OF THE CASE This is an appeal of an order enforcing an administrative subpoena duces tecum that the Commission issued to Roadway during the course of investigating charges of systemic race and sex discrimination under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq. ("Title VII"). On February 19, 1999, the Commission filed an Application for Order to Show Cause Why Subpoena Should Not Be Enforced. (R.1 Application for Order to Show Cause ["Application"], Apx. pg. __). Roadway filed a Memorandum in response on June 1, 1999. (R.7 Respondent's Memorandum, Apx. pg. __). The district court enforced the subpoena, entering judgment for the Commission. (R.13 Judgment in Favor of Petitioner EEOC, Apx. pg. __). STATEMENT OF FACTS The Commission charged Roadway with a pattern or practice of race and sex discrimination spanning a 10-state area in the southeastern and midwestern part of the United States. (R.1 Application, Ex. A, Attachment 1, Apx. pg. __). The Commissioner's Charge ("the charge"), issued on November 3, 1994, contains the following allegations: [T]he unlawful discriminatory practices include, but are not limited to: 1) Failing and/or refusing to promote Blacks because of their race (Black) into sales and upper-level management positions; 2) Failing and/or refusing to hire individuals based on their sex (female) into operative and laborer positions; 3) Maintaining a hostile work environment and/or failing to provide a working environment free from racial and sex-based harassment, intimidation, and insults; and 4) Maintaining policies and practices and other terms and conditions of employment which discriminate against individuals based on their race (Black) and/or sex (female). (Id.). On November 16, 1994, the Commission sent Roadway a Request for Information. (R.1 Application, Ex. A, Attachment 4, Part A, Apx. pg. __). This request sought, among other things, records regarding hiring and promotions at Roadway facilities in Ohio, Tennessee, Illinois, Florida, Georgia, North Carolina, South Carolina, Missouri, Arkansas, and Louisiana, covering the period between January 1, 1991 and October 31, 1994. (R.1 Application, Ex. A, Attachment 4, Part A, pp. 4-6, Apx. pp. __). The request advised that the Commission might need "to request additional information at a later time." (R.1 Application, Ex. A, Attachment 4, Part A, p. 1, Apx. pg. __). On December 1, 1994, the day before the requested information was due to the Commission, Roadway asked to meet with Commission officials to establish a timetable for the submission of materials. (R.1 Application, Ex. A, Attachment 6, Part A, pg. 1, Apx. pg. __). The Commission agreed to the meeting but requested that certain pieces of information be brought to the meeting. (Id.). Roadway's counsel appeared at the meeting without bringing the requested information. (Id.). When Commission officials asked Roadway's counsel when Roadway would provide the requested information, he responded, "I don't know." (Id.). At the meeting, Roadway took the position that it would conduct its own assessment of its employment practices and would provide a statistical summary of its personnel actions, rather than the raw data that the Commission had requested. (Id.). Shortly after the meeting, due to Roadway's lack of cooperation, the Commission sent Roadway a letter stating that it would initiate appropriate legal action if Roadway failed to comply with the Request for Information. (Id.). Although Roadway eventually complied in part with the Request for Information, it refused to comply in several significant respects. Specifically, Roadway did not provide actual hiring records, nor did it provide gender identification of employees who were promoted. The Commission then sent Roadway a detailed list of the missing information. (R.1 Application, Ex. A, Attachment 4, Part B, p. 4, Apx. pg. __). This letter cautioned that "[i]f the requested information is not received by the aforementioned date, this office will promptly seek appropriate recourse." (Id. at 5, Apx. pg. __). In response to this letter, Roadway forwarded computerized employment records to the Commission. As for the gender identification of promoted employees, Roadway refused to supply the information, stating that, in its opinion, the information was irrelevant. (R.1 Application, Ex. A, Attachment 5, Part B, p. 4, Apx. pg. __). The computerized data that Roadway sent proved to be incomplete in several material respects, which the Commission soon realized when it was unable to access certain race and gender information. Accordingly, the Commission sent Roadway a letter explaining its difficulties with the computer tape, stating "[i]t would appear that for a number of variables including race and sex, values are not provided for certain groups of employees." (R.1 Application, Ex. A, Attachment 5, Part C, p. 4, Apx. pg. __). The letter specifically requested Roadway to provide race and gender information for all employees. (Id.). When the requested information still was not forthcoming by July 1996, the Commission was forced to issue a subpoena duces tecum.<1> (R.1 Application, Ex. A, Attachment 7, Apx. pg. __). Among other things, the subpoena demanded "a work force listing by name, race, sex, [and] position title" for each facility in the 10-state area "during the period January 1, 1991, to the present." (Id. at 2, Apx. pg. __). The subpoena also demanded "all employment applications submitted for operative and labor positions" in the 10-state area "from January 1, 1991, to the present." (Id.). In addition, the subpoena demanded "all selection and hire documents created for operative and labor positions filled" in the 10-state area "during the period January 1, 1991, to the present." (Id.). Pursuant to 29 C.F.R. § 1601.16(b), Roadway filed a Petition to Revoke or Modify Subpoena. (R.1 Application, Ex. A, Attachment 8, Apx. pg. __). In its petition, Roadway objected to the Commission's demand for "information regarding the sex of individuals in sales and upper-level management positions, and the race of individuals in operative and laborer positions" because, in Roadway's view, this information was irrelevant. (Id. at 10, Apx. pg. __). In addition, Roadway objected to the time period for which the Commission subpoenaed documents, i.e., "January 1, 1991 to the present." (Id. at 4, Apx. pg. __). The Commission granted in part and denied in part Roadway's petition. (R.1 Application, Ex. A, Attachment 9, Apx. pg. __). As to the demand for a work force listing by name, race, gender, and position title, the Commission modified this portion of the subpoena. Rather than requiring a work force listing, the Commission instead required Roadway simply to provide the race and gender data that Roadway had redacted from the computer tapes previously given to the Commission. (Id. at 15, Apx. pg. __). The Commission refused, however, to modify the temporal scope of the subpoena's other demands, which remained "January 1, 1991 to the present." (Id. at 10, Apx. pg. __). After the Commission issued its determination on the Petition to Revoke or Modify Subpoena, Roadway informed the Commission that it continued to "object to the time frame of this investigation" and, therefore did not intend to produce information beyond the date of the charge. (R.1 Application, Ex. A, Attachment 10, p.1, Apx. pg. __). As for the race of those hired and the gender of those promoted, Roadway once again "decline[d]" to provide this information. (Id. at 3, Apx. pg. __). After reviewing approximately 21 boxes of materials that Roadway provided to the Commission in batches, between 1997 and 1998, the Commission was in a position to assess the extent to which Roadway had not complied with the subpoena. The Commission then informed Roadway that it still had not received either employment applications or hiring documents "for the period November 1, 1994, through the present." (R. 1 Application, Ex. A, Attachment 11, pg. 3, Apx. pg. __). In an effort to resolve the dispute over the temporal scope of the investigation, the Commission stated that it would accept data "through October 31, 1996." (Id.). The Commission further informed Roadway that the information redacted from the computer tapes (i.e., "race data for operative/laborer employees and sex data for sales and upper management positions") still had not been provided, and it again requested that information. (Id.) When Roadway again refused to provide the requested information, the Commission filed the present action, seeking to enforce its subpoena.<2> The district court found in favor of the Commission. First the district court addressed the question whether the Commission was entitled to information through October 31, 1996, approximately two years after the date of the charge. Noting the Commission's very broad investigatory powers, and the fact that the charge put Roadway on notice of an exact time period, the district court held that the Commission is entitled to the post-charge information. EEOC v. Roadway Express, Inc., 75 F. Supp. 2d 767, 770-71 (N.D. Ohio 1999). Turning to the issue of the race and gender information that Roadway redacted from the computer tapes, the district court held that the information is "relevant" within the meaning of 42 U.S.C. § 2000e-8(a), and, therefore, the Commission is entitled to it. Id. at 771-72. The district court noted that information concerning job classifications other than those in the charge "is relevant because it may show a pattern of the same type of discrimination in the workplace." Id. at 771 (citing Blue Bell Boots, Inc. v. EEOC, 418 F.2d 355 (6th Cir. 1969)). Based on this rationale, the court found that "the EEOC is entitled to look at information concerning the practice of hiring African-Americans in all positions within the company, including those of operative and laborer, to determine whether there is a pattern of action based on racial discrimination." Id. at 772 (emphasis added). Likewise, the court found that the EEOC is "entitled to look at information concerning the practice of hiring women in all positions within the company, including those of sales and upper-level management, to determine whether there is a pattern of action based on gender discrimination." Id. (emphasis added). Undergirding the district court's ruling is the Supreme Court's pronouncement that "courts should generously construe the term 'relevant' and afford the EEOC access to virtually any material that might cast light on the allegations against the employer." Id. at 771 (citing EEOC v. Shell Oil Co., 466 U.S. 54, 68-69 (1984)). SUMMARY OF ARGUMENT When the Commission is investigating charges of discrimination, it is entitled to any evidence that is "relevant to the charge under investigation." 42 U.S.C. § 2000e-8(a). Despite Roadway's wish that the term "relevant" should be narrowly construed, both this Court and the Supreme Court have consistently construed the term "relevant" broadly such that the Commission has "access to virtually any material that might cast light on the allegations against the employer." EEOC v. Shell Oil Co., 466 U.S. 54, 68-69 (1984); see also Blue Bell Boots v. EEOC, 418 F.2d 355, 358 (6th Cir. 1969)). In this case, the allegations against the employer charge that Roadway has engaged, and is currently engaging, in systemic race and sex discrimination in all of its facilities spanning a ten-state area. Gender data of employees promoted and race data of individuals hired are, therefore, relevant to the charge under investigation because they might cast light on the alleged pattern or practice of race and sex discrimination. Therefore, the district court did not abuse its discretion when enforcing the Commission's subpoena. Gender data and race data are also relevant to the charges under investigation because without the missing data, race or sex discrimination could be statistically "masked." As the Commission's expert statistician explained, masking occurs when an unspecified variable statistically hides what is actually occurring. For example, without taking gender information into account, data may indicate that race discrimination is occurring when it is not. Because Roadway has refused to surrender selective portions of race and gender data, the possibility of statistical masking exists. In order for the Commission to perform a fair and accurate statistical analysis of Roadway's work force, the Commission must have access to the requested race and gender data. Gender data and race data are also relevant to the charge under investigation because the charge not only alleges discrimination with respect to hiring and promotions, but also alleges that Roadway maintains company policies and practices that discriminate against Black employees and women. Plainly, then, race and gender data may cast light on all of these allegations against Roadway. Thus, the data are relevant, and Roadway must produce them. Roadway would like the Court to think that there is something unusual about this case that would require the Court to judge it using a stricter standard of relevance. Roadway focuses on the fact that the charge of systemic discrimination was filed by a Commissioner rather than by a private individual. If anything, an investigation of a Commissioner's charge of a pattern or practice of company-wide discrimination spanning facilities throughout ten states should afford the Commission broader access to evidence than when investigating a charge of discrimination aimed at one individual. However, neither Congress nor the Court has set separate standards for the production of evidence. No matter who files the charge, and no matter what the charge alleges, the Commission is entitled to any evidence that might cast light on the allegations of discrimination. In addition to the gender and race data, Roadway also refuses to produce information on its hiring practices through October 1996, that is, from a period of time after the date of the charge. Roadway frames the issue as whether the Commission has the "authority" to subpoena post-charge information. Roadway concedes, however, that the charge is valid insofar as it sets forth a time frame for the alleged discrimination. Since the charge is valid, there is no question but that the Commission has the authority to subpoena evidence pursuant to that charge. The only question for the Court is whether the Commission is entitled to have its subpoena enforced. Here, that question distills down to the question whether the post-charge information is relevant to the charge under investigation. Post-charge information is relevant because the charge alleges that Roadway has violated and "continues to violate" Title VII. Furthermore, the charge states that persons aggrieved by Roadway's alleged pattern or practice of race and sex discrimination include all Black people and women who have been "or might in the future be" affected by the alleged unlawful practices. There is no reason to think that alleged systemic race and sex discrimination spanning Roadway's facilities throughout ten states will suddenly cease the date that the Commission files a charge against the company. More than likely, a pattern or practice of race and sex discrimination that goes unchecked will continue into the post-charge period. Consequently, the Commission's broad investigatory powers should be interpreted to include the power to investigate discrimination that is ongoing during the course of the investigation, i.e. during the post-charge period. Indeed, this Court has done just that on several occasions. See, e.g. EEOC v. K-Mart Corp., 796 F.2d 139 (6th Cir. 1986); EEOC v. Roadway Express, Inc., 750 F.2d 40 (6th Cir. 1984) (per curiam), aff'g 580 F. Supp. 1063 (W.D. Tenn.). Roadway would have the Court believe that the Commission arbitrarily continues to expand the scope and time frame of this investigation. In fact, it is Roadway's stonewalling that has extended the investigation, necessitating the issuance of a subpoena and the assistance of the courts in enforcing it. Had Roadway complied with the Commission's request for information almost six years ago, the Commission's investigation of serious charges of systemic race and sex discrimination would not have been impeded. The Court should, therefore, affirm the judgment of the district court so that the Commission may bring its investigation to a close. ARGUMENT 1. Standard of Review The decision whether to enforce an administrative subpoena is committed to the sound discretion of the district court. This Court, therefore, reviews the district court's decision for an abuse of discretion. See NLRB v. Detroit Newspapers, 185 F.3d 602, 605 (6th Cir. 1999). 2. The district court did not abuse its discretion in enforcing the Commission's subpoena Title VII provides that "[i]n connection with any investigation of a charge[,] . . . the Commission . . . shall at all reasonable times have access to . . . any evidence of any person being investigated or proceeded against that relates to unlawful employment practices . . . and is relevant to the charge under investigation." 42 U.S.C. § 2000e-8(a). According to this Court, the Commission's subpoena may be judicially enforced if it: "(1) seeks relevant information; (2) is not unduly burdensome;<3> and (3) is within the statutory authority of the EEOC." EEOC v. Ford Motor Credit Co., 26 F.3d 44, 45 (6th Cir. 1994). Roadway's appeal revolves around the proper scope of the first prong of this test, that is, whether the subpoena requests relevant information. Roadway argues that information about the gender of employees promoted into sales and upper-level management positions, and information about the race of individuals hired into operative and laborer positions is not relevant because the charge alleges failure to promote on the basis of race and failure to hire on the basis of sex. In addition, Roadway takes issue with the relevance of post-charge information. Roadway's position stems from an unduly narrow interpretation of Title VII that is contrary to congressional intent. Under the proper interpretation, which the district court followed -- namely, that the term "relevant" should be broadly construed such that the Commission has "access to virtually any material that might cast light on the allegations against the employer," -- the Commission is entitled to the gender and race data and to post-charge information. See EEOC v. Shell Oil Co., 466 U.S. 54, 68-69 (1984). a. Gender data of employees promoted into sales and upper-level management positions, and race data of individuals hired into operative and laborer positions are relevant to the charge under investigation As stated, when investigating charges of discrimination, the Commission is entitled to any evidence that is "relevant to the charge under investigation." 42 U.S.C. § 2000e-8(a). As the district court held, the Commission is entitled to information about the gender of employees promoted into sales and upper-level management positions, as well as to information about the race of individuals hired into operative and laborer positions, to determine whether there is a "pattern of action" based on race and sex discrimination. Roadway Express, 75 F. Supp. 2d at 772. Indeed, as the district court acknowledged, the charge under investigation in this case is one that alleges a pattern or practice of race and sex discrimination throughout a ten-state area. See id. at 769. In other words, the Commission has alleged systemic race and sex discrimination that pervades all of Roadway's operations and facilities in these states. It is difficult to imagine what could be more relevant to charges of systemic race and sex discrimination than information about the race and gender of Roadway's employees and applicants. Because race and gender data is relevant to the charge under investigation, Roadway must produce it. See id. at 771-72. The Supreme Court has observed that "[s]ince the enactment of Title VII, courts have generously construed the term 'relevant' and have afforded the Commission access to virtually any material that might cast light on the allegations against the employer." Shell Oil, 466 U.S. at 68-69 (citing Blue Bell Boots, Inc. v. EEOC, 418 F.2d 355, 358 (6th Cir. 1969)). In Blue Bell Boots, this Court stated that it considers "an employer's 'pattern of action' relevant to the Commission's determination of whether there is reasonable cause to believe that the employer" has engaged in unlawful discrimination. Blue Bell Boots, 418 F.2d at 358. There, the employer had argued that the Commission was not entitled to records concerning every employee in every category of employment because such evidence was not relevant to the charges of discriminatory firing of seven particular employees on the basis of their race. This Court disagreed, stating that "the existence of patterns of racial discrimination in job classifications or hiring situations other than those of the complainants may well justify an inference that the practices complained of here were motivated by racial factors." Id. This Court, therefore, affirmed the district court's ruling, which allowed the Commission access to the requested information. Id. The broad relevance standard that this Court articulated in Blue Bell Boots applies even more forcefully in the case at bar. In Blue Bell Boots, the complainants were several individuals who alleged race discrimination. Here, however, a Commissioner has alleged wide scale systemic race and sex discrimination throughout Roadway facilities in ten states. If the Commission is entitled to evidence that would indicate "patterns of . . . discrimination" when investigating a charge filed by individuals, id., all the more reason the Commission is entitled to such evidence when investigating a charge of systemic pattern or practice race and sex discrimination. Under the broad interpretations of relevance articulated in Blue Bell Boots and Shell Oil, the Commission is entitled to the requested race and gender data. In the charge, the Commissioner states, "I believe that [Roadway] . . . has violated and continues to violate [Title VII] by discriminating against applicants and employees because of their race and/or sex." (R.1 Application, Ex. A, Attachment 1, Apx. pg. __) (emphasis added). The charge continues by specifying that "the unlawful discriminatory practices include, but are not limited to" the four enumerated allegations.<4> (Id.). Thus, the clear import of the charge is that the Commissioner has reason to believe that Roadway has engaged in, and continues to engage in, a widespread pattern or practice of race and sex discrimination. Race and gender data are, therefore, relevant to the charge. In its effort to avoid the broad relevance standard established by this Court, Roadway attempts to diminish the continuing vitality of Blue Bell Boots by referring to its holding as "outdated" and by reiterating that it is a thirty-year-old case decided shortly after Title VII's enactment. See Roadway's Br. at 11.<5> Its age notwithstanding, Blue Bell Boots is still good law, and Roadway cannot demonstrate otherwise. Roadway is unable to point to any authority that overruled Blue Bell Boots, nor can Roadway point to authority that calls into question the case's central holding. Instead, Roadway seizes on a statement the Court made in dictum -- that is, that race discrimination is by definition class discrimination -- and thus attempts to discredit the entire case on that basis. In support of its argument, Roadway cites East Texas Motor Freight System, Inc. v. Rodriguez, 431 U.S. 395 (1977). Roadway's suggestion that Rodriguez undermines the validity of Blue Bell Boots is farfetched. In Rodriguez, the plaintiffs filed suit against their employer and union, alleging that provisions of a collective bargaining agreement violated Title VII. Id. at 397-98. The complaint denominated the suit a class action, but the plaintiffs never moved for class certification under Fed. R. Civ. P. 23. Id. at 398. On appeal, however, the Fifth Circuit, of its own accord, certified a class. Id. Finding that the court of appeals plainly erred, the Supreme Court nevertheless acknowledged its awareness "that suits alleging racial or ethnic discrimination are often by their very nature class suits, involving classwide wrongs." Id. at 405. Thus, far from undermining the rationale in Blue Bell Boots, Rodriguez actually acknowledges the likelihood of "classwide wrongs" in race discrimination claims. The Court merely found that under the particular facts of that case, the named plaintiffs were not proper class representatives because they did not adequately represent the interests of those against whom the employer and union had discriminated. Id. at 403. Needless to say, the Rodriguez Court mentions nothing about the standard of relevance in a subpoena enforcement action. In any event, this Court expressly reaffirmed the holding in Blue Bell Boots in a case decided two years after Rodriguez. In EEOC v. Cambridge Tile Manufacturing Co., this Court stated, "[w]e . . . reaffirm the holding in [Blue Bell Boots] that 'an employer's pattern of action [is] relevant to the Commission's determination of whether there is reasonable cause to believe that the employer has practiced . . . discrimination.'" 590 F.2d 205, 206 (6th Cir. 1979) (per curiam) (quoting Blue Bell Boots, 418 F.2d 355, 358 (6th Cir. 1969)). Furthermore, seven years after Rodriguez, the Supreme Court cited Blue Bell Boots for the proposition that the term "relevant" in § 2000e-8(a) is to be liberally construed such that the Commission has access to "virtually any material that might cast light on the allegations against the employer." Shell Oil, 466 U.S. at 68-69 & n.20 (citing Blue Bell Boots, 418 F.2d at 358). Thus, Roadway's attempt to discredit Blue Bell Boots is unavailing. After Blue Bell Boots, this Court shed additional light on the scope of the term "relevant" as used in § 2000e-8(a). In Cambridge Tile, the Court stressed that "[n]otions of relevancy at the investigatory stage are very broad." Cambridge Tile, 590 F.2d at 206. There, the Commission, in the course of investigating charges of discriminatory terminations on the basis of race and sex, uncovered evidence of sex discrimination in job classifications. Id. at 205-06. Thus, the Commission sought statistical information relating to this form of sex discrimination as well. Id. at 206. The employer refused to turn over the information, arguing that since the charges involved discriminatory terminations, information about sex discrimination in job classifications was not relevant to the charges under investigation. This Court disagreed and affirmed the district court's enforcement of the Commission's subpoena. Id. In ordering compliance with the Commission's subpoena, the Court stated, "so long as the EEOC is not wandering into wholly unrelated areas, we hold that the Commission has the power to investigate and thus to subpoena documents concerning any employer practice which may shed light on the discrimination charged." Id. (citation omitted). As an example of a "wholly unrelated area," the Court cited a case in which the Commission unexpectedly uncovered evidence of religious discrimination during the course of investigating charges of race and sex discrimination. See id. (citing EEOC v. Bailey Co., 563 F.2d 439 (6th Cir. 1977)). The Cambridge Tile Court specifically held that information relating to possible sex discrimination in job classifications is relevant to the charge, even though the charge alleged race and sex discrimination in firing. Id. Here, as in Cambridge Tile, the Commission is not requesting information about a "wholly unrelated area." The Commission is seeking information concerning race and sex in a case that charges widespread systemic race and sex discrimination. In other words, the Commission is seeking information "concerning any employer practice which may shed light on the discrimination charged." Id. Roadway's attempts to restrict the Commission's access to this information are in direct contravention of the teachings of Cambridge Tile, Blue Bell Boots, and Shell Oil. The Commission's expert statistician, Joseph R. Donovan, delineated yet another reason why race and gender data are relevant to the charge under investigation. His affidavit explains that the Commission needs the requested race and gender data to perform accurate statistical analyses with respect to Roadway's work force because without the requested data, race or sex discrimination could be statistically "masked." (R.1 Application, Ex. B, pg. 3, Apx. pg. __). Masking occurs when an unspecified variable -- in this case, race for hires and sex for promotions -- hides what is actually occurring, statistically speaking. (Id.). For example, without taking gender information into account, data may indicate that race discrimination is occurring when it is not, or, alternatively, may not indicate race discrimination when it is actually occurring. The following example<6> illustrates this point. Assume that there are 520 total employees in the workplace, 120 of whom are black and 400 of whom are white, all of whom are equally qualified. Assume also that the employer virtually never promotes women, but it promotes men without regard to race. Where the gender of the work force is unknown, it appears that race discrimination may be occurring. See "All Employees" Table below. That is, out of all black employees in the workplace (23.1% of the total employees), only 11.8% received promotions. However, with the missing gender variable supplied, one can see that race discrimination is unlikely. See "Black Employees" and "White Employees" Tables below. Black men are promoted at the same rate as white men (30%), and black women are promoted at the same rate as white women (1.3%). Thus, with the missing gender variable supplied, it becomes apparent that what is likely occurring is sex discrimination, not race discrimination. That is, 30% of the men, as compared to only 1.3% of the women, are promoted. Due to the possibility of statistical masking, the Commission needs all of the race and gender data to perform a fair and accurate statistical analysis of Roadway's work force. ALL EMPLOYEES Total % Black Pool 520 23.1% Promotions 110 11.8% BLACK EMPLOYEES Male Female Total Pool 40 80 120 Promotions 12 1 13 % Promoted 30.0% 1.3% 10.8% WHITE EMPLOYEES Male Female Total Pool 320 80 400 Promotions 96 1 97 % Promoted 30.0% 1.3% 24.3% Roadway rejoins that the theory of statistical masking should be discounted because Mr. Donovan "was completely unfamiliar with this case." See Roadway's Br. at 13. This contention is nonsensical. Mr. Donovan explained the concept of statistical masking using theoretical examples because Roadway has withheld data from the Commission. Obviously, then, Mr. Donovan was not in a position to confirm that statistical masking would definitely occur in this case. The possibility that it could occur merely provides yet another reason why race and gender data are relevant to the charge under investigation. Roadway next attempts to discredit the theory of statistical masking by stating that Mr. Donovan "admitted that his statistical model could not be applied to the facts of this case." See Roadway's Br. at 13. This claim is also nonsensical. Roadway asked Mr. Donovan to reach a conclusion about the theoretical possibility of masking using incomplete data for certain dates and certain facilities. (See, e.g., R.8 Exhibit Binder, Ex. P, Joseph Donovan at TR 76, Apx. pg. __) (stating that "at least for the period 7-27 through 12-31-1991" where only one Black person was promoted at a particular facility, statistical masking was not theoretically possible). Any statistical analysis that Mr. Donovan might perform without the data Roadway refuses to surrender would necessarily be incomplete, and, therefore, inaccurate. That statistical masking is not theoretically possible with certain numbers is a given. The point here is not whether the numbers the Commission already has would render statistical masking theoretically possible, but, rather, whether what Roadway refuses to surrender would cause statistical masking. Neither Mr. Donovan, nor anyone else yet knows what the numbers will reveal until Roadway provides the missing data. Since the information that Roadway has given to the Commission is incomplete, the possibility of statistical masking exists. The district court, relying on selective portions of Mr. Donovan's testimony taken out of context, found the Commission's theory of statistical masking to be "without merit," but found, "[n]evertheless, the requested race and gender information is still relevant as it can show a pattern of discrimination in the workplace." Roadway Express, 75 F. Supp. 2d at 772 n.1 (citing Blue Bell Boots, 418 F.2d 355; Cambridge Tile, 590 F.2d 205). While this Court need not rule on the validity of the theory of statistical masking (also known as "Simpson's Paradox")<7> in order to conclude that the Commission is seeking relevant information to which it is entitled by law, the Commission nonetheless maintains that the theory is valid and that it provides yet another reason why the Commission is entitled to race and gender data. In addition to being relevant to the specific examples of discrimination outlined in the first two allegations of the charge, the gender and race data are also relevant to the fourth allegation.<8> The fourth enumerated discriminatory practice, which encompasses the first three, charges that Roadway maintains "policies and practices and other terms and conditions of employment which discriminate against individuals based on their race (Black) and/or sex (female)." (R.1 Application, Ex. A, Attachment 1, Apx. pg. __). For this reason, the Commission is entitled to know the gender of persons promoted and the race of persons hired, since these individuals may have information with respect to the policies and practices that allegedly discriminate against Black people and women. Furthermore, the charge states that the "persons aggrieved include all Blacks and females who have been, are[,] or might in the future be affected by the unlawful practices complained of herein." (Id.) (emphasis added). Information about the gender of those promoted and the race of those hired is plainly, then, "relevant to the charge under investigation." See 42 U.S.C. § 2000e-8(a). Roadway next argues that this case should be held to a more stringent relevance standard because a Commissioner, rather than a private party, filed the charge. Roadway, however, does not cite any legal authority that articulates a different standard of relevance for Commissioner charges. Contrary to Roadway's argument, the fact that this is an investigation of a Commissioner's charge should actually cut in the Commission's favor. A charge filed by a private individual typically alleges only discrete conduct directed toward that individual alone. A Commissioner's charge, on the other hand, typically alleges a widespread pattern or practice of discrimination that affects various classes of individuals throughout the employer's work force. If a different standard of relevance were to be applied to Commissioner's charges, intuitively that standard should be a broader one. The standard of relevance, however, is equally broad regardless of the type of charge the Commission is investigating. In the 1972 amendments to Title VII, Congress eliminated the requirement that a Commissioner must have reasonable cause to believe that a violation of the statute had occurred before filing a charge. See Shell Oil, 466 U.S. at 76; see also EEOC v. K-Mart Corp., 796 F.2d 139, 141 (6th Cir. 1986) ("Congress eliminated the special requirements applicable to Commissioners' charges"). "The only plausible explanation for that change," the Supreme Court surmised, "is that Congress wished to place a Commissioner on the same footing as an aggrieved private party: neither was held to any prescribed level of objectively verifiable suspicion at the outset of the enforcement procedure." Shell Oil, 466 U.S. at 76; see also id. at 77 n.32 (by abandoning a "reasonable cause" requirement, "Congress meant to loosen, not tighten, the constraints on the authority of Commissioners to file charges"). The Court reached this conclusion because, in its view, the requirement that a charge must indicate the date, place, and circumstances of the alleged discrimination "was not envisioned as a substantive constraint on the Commission's investigative authority." Id. at 75. Indeed, it was the recalcitrance of many employers that "compelled Congress in 1972 to strengthen the EEOC's investigatory and enforcement powers." Id. at 77 (citing H.R. Rep. No. 92-238, 92d Cong., 2d Sess. at 3-4, 8-9, reprinted in, 1972 U.S.C.C.A.N. 2139-40, 2144-45; S. Rep. No. 92-415 at 4-5, 17). To be sure, a Commissioner's charge will ordinarily be articulated in a more sophisticated manner than will a charge filed by a private party. The Commission's investigative authority, however, is not thereby constrained. Just as Congress did not provide for a separate standard under which to evaluate the validity of a Commissioner's charge, it did not provide a separate standard of relevance. Thus, the broad standard of relevance applies regardless of who files the charge. See, e.g., Shell Oil, 466 U.S. at 68-69 (articulating broad standard of relevance in case involving Commissioner charge); Blue Bell Boots, 418 F.2d at 358 (articulating broad standard of relevance in case involving private party charge); Cambridge Tile, 590 F.2d at 206 (same). Finally, Roadway makes much of the fact that this Court has stated "the appropriate scope of investigation depends on the circumstances of a particular case." See, e.g., Roadway's Br. at 11, 14 (citing Ford Motor Credit, 26 F.3d at 47). Roadway posits that this sentiment somehow tips the scale in its favor.<9> Roadway, however, is grasping for straws. Roadway insinuates that Ford Motor Credit, by correlating the scope of an investigation to the circumstances of a particular case, somehow changed the law of relevance. The state of the law, however, remains the same after Ford Motor Credit. Indeed, in Ford Motor Credit, this Court reaffirmed the broad notion of relevance enunciated in Shell Oil. The Court reiterated that the Commission has "'access to virtually any material that might cast light on the allegations against the employer.'" Ford Motor Credit, 26 F.3d at 47 (quoting Shell Oil, 466 U.S. at 68-69). Moreover, the Court lodged its agreement with the Commission that "Congress intended for it to have broad access to information relevant to inquiries it is mandated to conduct." Id. In any event, the fact that the scope of an investigation depends upon the circumstances of a particular case counsels in favor of affording the Commission access to the requested race and gender data. The allegations against Roadway in this particular case include a pattern or practice of systemic discrimination against all Black employees and women in all Roadway facilities throughout a ten-state area. Under the circumstances, then, it is difficult to imagine evidence more relevant to the charge under investigation than race and gender data of Roadway's work force in that ten-state area. Additionally, contrary to Roadway's assertion, the data requested are not rendered irrelevant merely because the job classifications in the charge's first two allegations may involve different decisionmakers and criteria. See Roadway Br. at 15-16. This Court is not called upon to decide who has the authority to hire and promote, or what criteria are used. Regardless of the answers to these questions, and regardless of whether laborer and sales positions are linked, the requested race and gender data remains relevant to the Commission's investigation of systemic race and sex discrimination. To the extent that Roadway is implying that the Commissioner's charge has no merit, that is not an appropriate inquiry at the investigatory stage of the proceedings. At this stage, the merits of the claim are simply not at issue. See EEOC v. Roadway Express, Inc., 750 F.2d 40, 42 (6th Cir. 1984) (per curiam) ("A subpoena enforcement proceeding is a summary process designed to decide expeditiously whether a subpoena should be enforced . . . [and] not the proper time to litigate the merits of a claim, either procedurally or substantively"). If and when the Commission files suit, then Roadway will have the opportunity to mount a defense. The case at bar, however, is a subpoena enforcement action, not a Title VII employment discrimination action. At the investigatory stage, the Commission has "access to virtually any material that might cast light on the allegations against the employer," regardless of whether Roadway possesses a viable defense it might advance in the future. See Shell Oil, 466 U.S. at 68-69. Thus, Roadway's attempt to embroil the Court in a detailed factual analysis is improper. In sum, Roadway's effort to escape from a broad relevance standard is for naught. The race and gender data the Commission seeks fall well within the wide parameters of relevance set by this Court and by the Supreme Court. Accordingly, the district court did not abuse its discretion in enforcing the Commission's subpoena. b. Post-charge information is relevant to the charge under investigation The Commission's subpoena sought various pieces of information from 1991 "to the present." (R.1 Application, Ex. A, Attachment 7, Apx. pg. __). When the Commission issued its determination on Roadway's petition to revoke or modify the subpoena, it declined to modify the temporal scope of the subpoena. (R.1 Application, Ex. A, Attachment 9, pg. 10, Apx. pg. __). Later, however, in an attempt to compromise the dispute regarding temporal scope, the Commission informed Roadway that it would accept data "through October 31, 1996."<10> (R.1 Application, Ex. A, Attachment 11, pg. 3, Apx. pg. __). Roadway argues that the Commission does not have the "authority" to subpoena post-charge information. See Roadway's Br. at 23. The district court exercised its discretion soundly in rejecting this argument and enforcing the Commission's subpoena. See Roadway Express, 75 F. Supp. 2d at 770 (considering the Commission's "very broad powers of investigation," district court "finds Roadway's arguments unpersuasive"). Although Roadway concedes that the Commissioner's charge is valid, see Roadway's Br. at 23 ("[t]he validity of the Charge . . . is not at issue"), it nevertheless frames the issue regarding the temporal scope of the subpoena as whether the Commission has the "authority" to request post-charge information. There is no question that the Commission is authorized by law to issue a subpoena requesting evidence pursuant to an investigation of a valid charge of discrimination. See 42 U.S.C. § 2000e-9. The charge in this case meets the requirements. Congress granted to the Commission the authority to determine the proper form and content of a charge of discrimination. See 42 U.S.C. § 2000e-5(b) ("Charges shall be in writing under oath or affirmation and shall contain such information and be in such form as the Commission requires"). Pursuant to its statutory authority, the Commission promulgated a regulation that requires a charge to contain, among other things, a "clear and concise statement of the facts, including pertinent dates, constituting the alleged unlawful employment practices." 29 C.F.R. § 1601.12(a)(3) (emphasis added). Where, as here, a Commissioner files a charge alleging a pattern or practice of discriminatory conduct, the foregoing regulatory standard is satisfied, as far as pertinent dates are concerned, when the Commissioner identifies, "[i]nsofar as [s]he is able, . . . the periods of time in which [s]he suspects the discrimination to have been practiced." Shell Oil, 466 U.S. at 73. In Shell Oil, the charge at issue identified the period of time in which the discriminatory conduct was allegedly being practiced as follows: "on a continuing basis from at least July 2, 1965, until the present." Id. at 59. The Court held that such a time frame "plainly satisfied" the regulatory standard. Id. at 73. In the case at bar, the charge alleges that "since at least July 27, 1991," Roadway "has violated and continues to violate" Title VII. (R.1 Application, Ex. A, Attachment 1, Apx. pg. __). Thus, under the dictates of Shell Oil, the charge is valid because, among other reasons, it identifies the period of time in which the Commissioner suspects the discrimination has been, and is being, practiced. Since the Commission has issued a subpoena pursuant to a valid charge, the question becomes whether the Commission is entitled to judicial enforcement of a subpoena that seeks information beyond the date of the charge. Since the charge is valid and Roadway has waived the issue whether compliance with the subpoena would cause an undue burden, see supra note 3, the only question remaining for the Court is whether post-charge information is relevant to the charge under investigation. See Ford Motor Credit, 26 F.3d at 45 (outlining three-pronged test for enforcement of Commission subpoena). The Commission asserts that it is. Indeed, this Court has previously enforced subpoenas requesting post-charge information. See, e.g., K-Mart, 796 F.2d at 146 (enforcing subpoena for information through October 1980 where charge is dated September 1979), overruling EEOC v. K-Mart Corp., 694 F.2d 1055, 1057 (6th Cir. 1982); Roadway Express, 750 F.2d at 43 (enforcing subpoena that sought information from time of charge filing to time of issuance of subpoena, approximately two years later), aff'g 580 F. Supp. 1063, 1064 (W.D. Tenn.). Roadway's complaint that "[n]ot a single case" that the Commission cited to the district court "has a significant discussion of the post-Charge issue" is pointless. See Roadway's Br. at 26 n.9. Courts asked to enforce Commission subpoenas only need to satisfy themselves of the charge's validity and the relevance of the information, assuming no undue burden. The fact that some of the evidence goes beyond the charge date is of no concern as long as the evidence is relevant. Considering that the relevance of post-charge information is not difficult to establish, it is not surprising that this Court's opinions do not devote "significant discussion" to that issue. In an effort to limit the broad scope of the Commission's investigatory authority, Roadway, relying on Shell Oil, attempts to fashion a rule that even if a charge alleges ongoing discrimination "until the present," the scope of the investigation must nevertheless cease at the charge date. Shell Oil does not stand for such a proposition. On the contrary, the Court implicitly recognized the ongoing nature of a statutory violation and the need for an investigation to extend into the post-charge period. See Shell Oil, 466 U.S. at 80 (observing that, in the context of voluntary compliance, "[a] good-faith effort to remedy past misconduct and to prevent future violations would require the employer to investigate its prior and current practices in all of the areas identified in the charge") (emphases added). In any event, there is simply no basis for assuming that if the Commission charges discrimination "on a continuing basis . . . until the present," as it did in Shell Oil, or charges that an employer "has violated and continues to violate" Title VII, as it did in the case at bar, that the discriminatory practices suddenly cease on the date of the charge. If the Commission has reason to believe that discrimination has occurred between 1991 and 1994, and the discriminatory practices have gone unchecked, then it is likely that discrimination is also occurring in 1995 and 1996. The more logical interpretation, then, is that since illegal employment practices do not abruptly come to an end on the date of the charge, phrases such as "until the present" or "continues to violate" must be construed to give the Commission the authority to investigate illegal practices that may be occurring during the time of the investigation, which necessarily falls within the post-charge period. Under Roadway's interpretation of the temporal requirements of a charge -- namely, that "until the present" means "until the date of the charge" -- there would be a continual need to file new charges, beginning with the date of the last charge, as an investigation progressed, if it became clear that discrimination was ongoing during the course of the investigation. Such an absurd approach would effectively render the Commission powerless to investigate the ongoing nature of a statutory violation. This would run counter to congressional intent. See Shell Oil, 466 U.S. at 69 (if the purposes of Title VII are to be achieved, the Commission must be able to take "'[u]nrelenting broad-scale action against patterns or practices of discrimination'") (quoting H.R. Rep. No. 92-238, 92d Cong., 2d Sess. at 8, 14, reprinted in, 1972 U.S.C.C.A.N. 2149). Cambridge Tile provides further support for the Commission's position that post-charge information is relevant. Although the Court did not address the question whether the Commission is entitled to post-charge information, the implication of Cambridge Tile is that it is. In Cambridge Tile, the Court stated that the Commission may legitimately investigate additional related discrimination uncovered during the course of investigating the original charges. Cambridge Tile, 590 F.2d at 206. The Court stressed that "[t]he powers granted to the EEOC under Title VII should not be narrowly interpreted, and we decline to hold that the EEOC is powerless to investigate a broader picture of discrimination which unfolds in the course of a reasonable investigation of a specific charge." Id. The Commission's empowerment to investigate a "broader picture of discrimination" than that originally charged must include the concomitant power to investigate instances of discrimination that occur after the charge has been filed. Post-charge information is also relevant because the Commission has the duty to ensure that post-charge violations of Title VII are redressed. As this Court has acknowledged, remedies do not cut off on the date of the charge. See Blue Bell Boots, 418 F.2d at 358 ("evidence concerning employment practices other than those specifically charged by complainants may properly be considered by the Commission in framing a remedy"). Since the Commission may seek redress for post-charge violations, it must also be able to investigate those same violations. Roadway complains that the Commission has failed to offer "any meaningful explanation for the ongoing expansion of this investigation." See Roadway's Br. at 28. Roadway also accuses the Commission of "expand[ing] its investigation in an ever-broadening, overreaching manner." See Roadway's Br. at 3. Yet Roadway itself is, in large measure, responsible for the boat it now finds itself in. Consider that, although the Commission first requested information relevant to its hostile environment charge in 1994,<11> it was not until 1997 that Roadway produced employee complaints alleging hostile work environment and harassment on the basis of race or sex. (R. 1 Application, Ex. A, Attachment 10, pg. 2, Apx. pg. __). Likewise, although the Commission requested original job applications in 1994<12> Roadway did not forward them until March 1997. (Id.). Even then, Roadway sent applications only for the years 1993 and 1994. (Id.). At that time -- that is, three years after the original request -- Roadway stated that it was "in the process of gathering hiring documents which you requested." (Id.). Furthermore, Roadway sent the information in parts, several boxes at a time, adding many months to the process, which culminated in 1998. (R.1 Application, Ex. A, Attachment 13, pg.2, Apx. pg. __); (R.1 Application, Ex. A, Attachment 11, pg. 2, Apx. pg. __). Had Roadway complied with the Commission's original requests for information back in 1994, the Commission's investigation would not have been extended. In sum, information concerning Roadway's employment practices from November 1994 to October 1996 is relevant to the charge under investigation because the charge alleges that since 1991, Roadway "has violated and continues to violate" Title VII by engaging in a pattern or practice of race and sex discrimination. (R.1 Application, Ex. A, Attachment 1, Apx. pg. __). Moreover, the charge itself states that the "persons aggrieved include all Blacks and females who have been, are[,] or might in the future be affected by the unlawful practices complained of herein." (Id.) (emphasis added). Since the evidence is relevant, Roadway must produce it. See 42 U.S.C. § 2000e-8(a) (stating that the Commission shall have access to any evidence that is relevant to the charge under investigation). Therefore, the district court did not abuse its discretion in enforcing the Commission's subpoena. Roadway argues that the fact that the Commission has not yet issued findings suggests that the Commission's five-year investigation has failed to uncover any discriminatory employment practices. See Roadway's Br. at 2, 3, 18-19. Roadway undoubtedly fails to appreciate, or would have the Court ignore, how its stonewalling has severely hampered the Commission's investigation. As is evidenced by this appeal, the Commission still has not received crucial information relating to its charges of systemic race and sex discrimination, despite requesting that information in 1994, issuing a subpoena in 1996, and having the district court enforce the subpoena in 1999. In short, the Commission cannot complete its investigation and issue findings until Roadway surrenders the information that the Commission has been requesting for almost six years. Predictably, Roadway asserts that it has been responsive throughout the Commission's investigation and has provided extensive documentation. See Roadway's Br. at 2. The standard for determining whether the Court should enforce the Commission's subpoena, however, is not how responsive the employer believes it has been or how much information the employer may have already provided. Instead, the standard is whether the information that the employer refuses to provide is relevant to the charge under investigation. "'[A]n alleged perpetrator of discrimination cannot be allowed to pick and choose the evidence which may be necessary for an agency investigation.'" University of Penn. v. EEOC, 493 U.S. 182, 193 (1990) (quoting EEOC v. Franklin and Marshall College, 775 F.2d 110, 116 (3d Cir. 1985)). The Supreme Court made this statement in the context of deciding that the Commission is entitled to confidential peer review materials when investigating an allegedly discriminatory denial of university tenure. The sentiment quoted by the Court applies with even greater force to the case at bar, where the Commission is not seeking confidential materials, but, rather, for six years, has simply been seeking raw employment data to which it is entitled, concerning Roadway's hiring and promotion practices. As the Supreme Court has admonished,"it is crucial that the Commission's ability to investigate charges of systemic discrimination not be impaired." Shell Oil, 466 U.S. at 69. Roadway's recalcitrance has impaired the Commission's ability to investigate the charges in this case. This Court should order Roadway to comply with the Commission's subpoena so that the Commission may bring this investigation to a close. CONCLUSION For the foregoing reasons, the Commission asks the Court to affirm the district court's entry of judgment in its favor. Respectfully submitted, C. GREGORY STEWART General Counsel PHILIP B. SKLOVER Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel CAREN I. FRIEDMAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, NW, 7th Floor Washington, D.C. 20507 (202) 663-4720 March 29, 2000 CERTIFICATE OF COMPLIANCE I hereby certify that this brief complies with the type-volume limitations set forth in Fed. R. App. P. 32(a)(7). The brief is printed in 14-point Times New Roman and contains 9,656 words. ______________________________ Caren I. Friedman CERTIFICATE OF SERVICE I hereby certify that on this 29th day of March 2000, this proof brief was mailed first class postage prepaid to the Clerk of Court, and a true and correct copy was mailed first class postage prepaid to counsel of record at the following address: James A. Rydzel, Esq. Barbara J. Leukart, Esq. JONES, DAY, REAVIS & POGUE North Point 901 Lakeside Avenue Cleveland, Ohio 44114-1190 ______________________________ Caren I. FriedmanAPPELLEE'S CROSS-DESIGNATION OF APPENDIX CONTENTS Petitioner-Appellee, pursuant to Sixth Circuit Rules 28(d) and 30(b), hereby designates the following fourteen items in the district court's record as those to be included in the joint appendix, in addition to the items already designated by Respondent-Appellant: DESCRIPTION OF ENTRY DATE FILED IN DISTRICT COURT RECORD ENTRY NUMBER Application, Ex. A., Attachment 1, Commissioner's Charge 2/19/99 R.1 Application, Ex. A, Attachment 4, Part A, EEOC's letter of 11/16/94 and Request for Information 2/19/99 R.1 Application, Ex. A, Attachment 4, Part B, EEOC's letter of 6/16/95 2/19/99 R.1 Application, Ex. A, Attachment 5, Part B, Roadway's letter of 8/11/95 2/19/99 R.1 Application, Ex. A, Attachment 5, Part C, EEOC's letter of 4/12/96 2/19/99 R.1 Application, Ex. A, Attachment 6, Part A, EEOC's letter of 12/22/94 2/19/99 R.1 Application, Ex. A, Attachment 7, Subpoena 2/19/99 R.1 Application, Ex. A, Attachment 8, Petition to Revoke or Modify 2/19/99 R.1 Application, Ex. A, Attachment 9, EEOC's Determination 2/19/99 R.1 Application, Ex. A, Attachment 10, Roadway's letter of 3/7/97 2/19/99 R.1 Application, Ex. A, Attachment 11, EEOC's letter of 11/10/98 2/19/99 R.1 Application, Ex. A, Attachment 13, EEOC's letter of 12/23/98 2/19/99 R.1 Application, Ex. B, Declaration of Joseph R. Donovan 2/19/99 R.1 Exhibit Binder, Ex. P, Donovan deposition transcript, p. 76 6/1/99 R.8 1Congress furnished the Commission with the power to issue a subpoena by incorporating § 11 of the National Labor Relations Act, 29 U.S.C. § 161, into § 710 of Title VII. See 42 U.S.C. § 2000e-9. 2The Commission is empowered to seek court aid in compelling production of evidence in the case of "contumacy or refusal to obey a subpoena." See 42 U.S.C. § 2000e-9 (incorporating 29 U.S.C. § 161(2)). The Commission has previously, in an unrelated case, resorted to seeking judicial intervention to obtain Roadway's compliance with a subpoena. See EEOC v. Roadway Express, Inc., 750 F.2d 40 (6th Cir. 1984) (per curiam), aff'g 580 F. Supp. 1063 (W.D. Tenn.) (ordering Roadway to comply with Commission subpoena). 3Roadway had raised the issue of burdensomeness in the district court. (R.7 Respondent's Memorandum, pg. 37) ("the burden of producing [post-charge documents] . . . is excessive"). The district court rejected this argument, refusing to find undue burden. Roadway Express, 75 F. Supp. 2d at 772. On appeal, by failing to raise it in its opening brief, Roadway has waived the argument that complying with the Commission's subpoena would cause an undue burden. See Thaddeus-X v. Blatter, 175 F.3d 378, 403 n.18 (6th Cir. 1999) (stating that arguments not presented in initial appellate brief are waived). 4The fact that the charge states that the discriminatory practices "include, but are not limited to" those enumerated is significant. By introducing the allegations in this manner, the Commissioner has indicated that the four specific allegations enumerated in the charge are merely illustrations of the widespread systemic discrimination with which the Commissioner charges Roadway. The charge in Shell Oil also contained the phrase, "include[], but are not limited to." In the Court's view, this language constitutes "simply an acknowledgment that the EEOC had statutory authority to inquire into respondent's employment practices pertaining to occupational categories outside of those in which the Commission already had reason to think respondent had been engaging in discrimination." Shell Oil, 466 U.S. at 73 n.27. Such language, the Court observed, put the employer on notice of "the Commission's expansive investigatory authority" so that the employer would not "deliberately or inadvertently destroy records relevant to the EEOC's impending investigation." Id. Similarly, here Roadway was put on notice that the Commission would be conducting an investigation of allegations that "include, but are not limited to" those enumerated. 5All citations to Roadway's brief are to the proof brief filed on February 25, 2000. 6For a complete explication of the theory of statistical masking, with additional examples, see R.1 Application, Ex. B, pg. 3-5, Apx. pp. __. 7Several courts have recognized the theory of statistical masking, or Simpson's Paradox. See, e.g., Engineering Contractors Ass'n of South Florida, Inc. v. Metropolitan Dade County, 122 F.3d 895, 919 n.4 (11th Cir. 1997); Police Officers for Equal Rights v. City of Columbus, 644 F. Supp. 393, 429 (S.D. Ohio 1985), aff'd, 916 F.2d 1092 (6th Cir. 1990). 8In the district court, the Commission stated that it did not raise the other two allegations in its Application for Order to Show Cause because it was not seeking information with respect to those allegations. (R.10 Commission's Reply Memo at 2 n.1). Technically, this is correct because, at that juncture, the controversy had been extremely narrowed in focus by Roadway's refusal to provide gender information for promotions and race information for hires. However, clearly, the fourth allegation is broad enough to encompass the first three allegations, and the third allegation is closely related to the other three. In other words, at all times, the Commission has been seeking information relating to charges of widespread systemic race and sex discrimination. 9Incidentally, in making this statement, the Court expressed its agreement with the Commission. The full text of the quotation on which Roadway hangs its hat is, "EEOC correctly points out that the appropriate scope of investigation depends on the circumstances of a particular case." Ford Motor Credit, 26 F.3d at 47. 10Roadway argues that the Commission "is not entitled to pick a discretionary 'reasonable period' out of thin air." See Roadway's Br. at 24 n.8. As will be discussed, the Commission is entitled to all relevant information, even information going beyond October 1996. As an act of perhaps unwarranted lenience toward a recalcitrant employer, the Commission agreed, nevertheless, that Roadway would be deemed in compliance with the subpoena if it provided documents through October 1996. 11See R.1 Application, Ex. A, Attachment 4, Pt. A, pg. 7, Apx. pg. __ . 12See R.1 Application, Ex. A, Attachment 4, Pt. A, pg. 4, Apx. pg. __ .