EEOC v. Technocrest Systems, 10th Cir. Reply brief Filed January 20, 2006 IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT ______________________________________ Nos. 05-3322 & 05-3457 ______________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee, Cross-Appellant, v. TECHNOCREST SYSTEMS, INC., Defendant-Appellant, Cross-Appellee. ___________________________________________________ On Appeal from the United States District Court for the Western District of Missouri Southern Division ___________________________________________________ REPLY BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS CROSS-APPELLANT ___________________________________________________ JAMES L. LEE Deputy General Counsel VINCENT J. BLACKWOOD Assistant General Counsel JOHN F. SUHRE Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W., Room 7026 Washington, D.C., 20507 (202) 663-4716 John.Suhre@eeoc.gov TABLE OF CONTENTS Page REPLY BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS CROSS-APPELLANT . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8 TABLE OF AUTHORITIES Page EEOC v. Michael Construction Co., 706 F.2d 244 (8th Cir. 1983) . . . . . . . . . . .4 EEOC v. Western Publishing Co., 502 F.2d 599 (8th Cir. 1974). . . . . . . . . . . . .5 Graniteville Co. v. EEOC, 438 F.2d 32 (4th Cir. 1971) . . . . . . . . . . . . . . . 6 Fed. R. Civ. P. 23(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6 IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT ___________________________________________________ Nos. 05-3322 & 05-3457 ___________________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee, Cross-Appellant, v. TECHNOCREST SYSTEMS, INC., Defendant-Appellant, Cross-Appellee. ___________________________________________________ On Appeal from the United States District Court for the Western District of Missouri Southern Division ___________________________________________________ REPLY BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS CROSS-APPELLANT ___________________________________________________ The Equal Employment Opportunity Commission brought this action to enforce an administrative subpoena issued to Technocrest Systems seeking information regarding charges of discrimination filed by six individuals who allege that they work for Technocrest as field service representatives ("FSRs"), and Technocrest discriminated against them and other Filipinos as to their wages and other terms and conditions of employment based on their national origin. The district court enforced in part and denied in part the Commission's subpoena. The court required Technocrest to provide information regarding the immigration status, pay and benefits and work history of the charging parties and other FSRs. The court also required the company to provide documents submitted to and received from the Department of Labor (DOL) and the Immigration and Naturalization Service (INS), as well as personnel files and records of each of the six charging parties who are working with H-1B visas. However, the court refused to order Technocrest to provide this material for its other H-1B Filipino employees. Without further explanation, the court simply concluded that the information sought was not "relevant to the charges by the six complaining parties," and that Technocrest had "proffered sufficient evidence to demonstrate that compliance would be unduly burdensome." Tech. Add., Tab 1, p.2. Both parties appealed from this order. In our opening brief as cross-appellant, we argued that, if as the district court concluded, the subpoenaed documents concerning the charging parties are relevant to the charges, it necessarily follows that similar documents relating to other FSRs are also relevant because the charges expressly allege discrimination against Filipinos as a class. Further, we argued that, even without the allegations of class discrimination, the documents are relevant as comparative evidence that may shed light on Technocrest's treatment of other employees in the charging parties' job categories. The Commission also argued that the district court erred in concluding that Technocrest had met its burden to show that complying with the subpoena would "threaten the normal operation" of its business, as necessary to establish undue burdensomeness. We argued both that Technocrest's estimate of the cost of compliance was not probative because it did not account for the court's modification of the subpoena and that the estimate, on its face, was inflated. Likewise, the Commission argued that the statement by Technocrest's counsel that compliance "could threaten" bankruptcy was not probative both because, as statement of counsel, it is not evidence and, even if acceptable, does not establish that compliance with the subpoena "would" threaten Technocrest's normal operation as required by law. In its brief as cross-appellee, Technocrest makes no effort to defend the district court's conclusion that enforcement of the subpoena in its entirety would be unduly burdensome. Instead, the company insists, notwithstanding the court's explicit statement that it was denying full enforcement in part because the company demonstrated "that compliance would be unduly burdensome" (Tech. Add., Tab 1, p. 2), that the court based its decision solely on the issue of relevance. Tech. Reply br. at 8-9. Accordingly, Technocrest has abandoned any argument that providing the information that it provided to the DOL and INS for employees other than the charging parties would create an undue burden on the company's normal business operations. Technocrest's only argument as cross-appellee is that the Commission is not entitled to the immigration and labor material regarding Filipino employees other than the six charging parties because, inasmuch as these employees have "varied terms and conditions of employment," the Commission cannot establish "a class or legal category." Tech. Reply br. at 8. As we understand the argument, the company contends that the Commission cannot investigate the allegations that it discriminates against a "class" of Filipino employees because all of its employees have different terms and conditions of employment. The company's argument is wrong for several reasons. First, as we noted in our opening brief, this Court has held that the Commission "has the statutory duty to make an independent investigation" of a charge of discrimination and is not required "to defer" to claims by the employers charged with discrimination. EEOC br. at 22 (quoting EEOC v. Michael Construction Co., 706 F.2d 244, 252 (8th Cir. 1983)). Accordingly, the Commission need not accept the premise of Technocrest's argument – the assertion that the company's Filipino employees are subject to "widely varied terms and conditions of employment." Tech. Reply Br. at 8. The Commission is entitled to see for itself what the terms and conditions of Technocrest's employees actually are and to determine whether the documents it requested concerning those employees shed light on the allegations that the company discriminated against Filipinos in wages, benefits and other terms and conditions of employment. Moreover, contrary to Technocrest's argument, even if the terms and conditions of employment among its employees are "different from one to another" (Tech. Reply Br. at 8), that would not preclude the Commission from obtaining the requested information regarding FSRs other than the six charging parties. As stated above and in our opening brief at 31, the charges are not limited to allegations of discrimination against the six charging parties. Rather, the charges allege the Technocrest has discriminated against Filipinos as a group. Consequently, the Commission is entitled to any information that is relevant to the allegations that Technocrest discriminated against the charging parties and other Filipinos. In EEOC v. Western Publishing Co., 502 F.2d 599, 601-603 (8th Cir. 1974), this Court concluded that the Commission was entitled to "all evidence" which is relevant to the allegations of discrimination against charging party "and other Negroes," where the charging party alleged that company discriminated against her and "other Blacks because of our race." Similarly, in Graniteville Co. v. EEOC, 438 F.2d 32, 41-42 (4th Cir. 1971), the Fourth Circuit held that, where individual African-American employees filed charges of discrimination alleging that the company had discriminated "against Negroes" in the terms and conditions of their employment, information regarding all employees working at the plant was "highly relevant" to the allegations, not just information as to employees whose terms and conditions of employment were similar to the charging parties. Likewise here the personnel and immigration information for the other FSRs is relevant to the charges here which allege that Technocrest has discriminated "against" Filipinos. In arguing that the Commission cannot "establish a class" because the terms and conditions of employment of other Filipino employees are different from those of the charging parties, Technocrest appears to be arguing that the Commission cannot investigate allegations of discrimination against a group of employees unless it establishes a "class" within the meaning of Fed. R. Civ. P. 23(a), which permits legal action by a representative on behalf of a group of plaintiffs where certain requirements, such as the commonality and typicality of the claims, are met. Once again the company ignores the fact that this is an investigation, not an enforcement action. As we noted in our opening brief, it would make no sense to require the Commission to establish the elements of a Title VII claim in order to be allowed to investigate whether the statute has been violated. EEOC br. at 16. If and when an enforcement action is brought by the Commission or a charging party, issues such as the comparability of Technocrest's FSRs and the coverage issue raised in the company's appeal will be properly before the court. CONCLUSION For the foregoing reasons, the EEOC requests that this Court affirm the order of the district court insofar as it orders Technocrest to comply with paragraph 1 of the subpoena, and to reverse the order insofar as it denies enforcement of paragraphs 3, 4, and 6 of the subpoena in their entirety. Respectfully submitted, JAMES L. LEE Deputy General Counsel VINCENT J. BLACKWOOD Acting Associate General Counsel JOHN F. SUHRE Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street N.W., Room 7026 Washington, D.C. 20507 (202) 663-4716 John.Suhre@eeoc.gov CERTIFICATE OF COMPLIANCE WITH FED. R. APP. P. 32(A) 1. This brief complies with the type-volume limitations of Fed. R. App. P. 32(a)(7)(B) because this brief contains 1330 words excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). 2. 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 this brief has been prepared in a proportionally spaced typeface using 14-point, Times New Roman type in the WordPerfect 9 processing program. (s)_________________________________ Attorney for Equal Employment Opportunity Commission Dated: January 20, 2006 CERTIFICATE OF SERVICE I hereby certify that two copies of the foregoing brief were mailed, first class, on this the 20th day of January, 2006, to the following counsel of record: Robert C. Johnson, Esq. 1200 Main Street, Suite 2300 Kansas City, Missouri 64105 JOHN F. SUHRE Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street N.W., Room 7026 Washington, D.C. 20507 (202) 663-4716 John.Suhre@eeoc.gov