No. 01-1937 _________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT __________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee, v. UNITED AIR LINES, INC., Defendant-Appellant. _______________________________________________________ On Appeal from the United States District Court for the Northern District of Illinois, Honorable George W. Lindberg, No. 01 C 242 _______________________________________________________ BRIEF OF THE UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS PLAINTIFF-APPELLEE _______________________________________________________ PHILIP B. SKLOVER Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel ANNE NOEL OCCHIALINO Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7030 Washington, D.C. 20507 (202) 663-4724 TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii STATEMENT OF JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE ISSUE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 1. Nature of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 2. Course of Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 3. Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 4. District Court Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 5. Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 I. THE DISTRICT COURT PROPERLY FOUND THAT THE MATERIAL SOUGHT IN THE SUBPOENA IS RELEVANT TO AN INVESTIGATION WITHIN THE EEOC'S STATUTORY AUTHORITY. . . . . . . . . . . . . . . . . 12 A. The EEOC Has the Authority to Investigate Droge's Charge. . . . . 13 1. National Origin Claim . . . . . . . . . . . . . . . . . . . . 14 2. Sex Discrimination Claim . . . . . . . . . . . . . . . . . . 21 B. The Subpoena Seeks Information Reasonably Relevant to Droge's Claims of National Origin and Sex Discrimination . . . . . . . . . 22 II. THIS COURT SHOULD AFFIRM THE DISTRICT COURT'S FINDING THAT UNITED FAILED TO MAKE AN ADEQUATE SHOWING THAT COMPLIANCE WITH THE SUBPOENA WOULD THREATEN THE NORMAL OPERATION OF ITS BUSINESS. . . . . . . . . . . . . . . . . . 31 TABLE OF CONTENTS(con't) PAGE CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE TABLE OF AUTHORITIES CASES PAGE(S) Barnett v. Technology Intern, Inc., 1 F. Supp. 2d 572 (E.D. Va. 1998) . . . . . . . 15 Borden Inc. v. FTC, 495 F.2d 785 (7th Cir. 1974) . . . . . . . . . . . . . . . . . . 15 Damron v. Yellow Freight System, Inc., 18 F. Supp. 2d 812 (E.D. Tenn. 1998), aff'd, 188 F.3d 506 (6th Cir. 1999) . . . . . . . . . . . . . . . . . . 15 Dow Chemical Co. v. Allen, 672 F.2d 1262 (7th Cir. 1982) . . . . . . . . . 8 EEOC v. American & Efird Mills, Inc., 964 F.2d 300 (4th Cir. 1992) . . 8 EEOC v. Bay Shipbuilding Corp., 668 F.2d 304 (7th Cir. 1981). .8, 9, 30, 31, 32, 33, 35 EEOC v. Central Steel & Wire Co., 1981 WL 342 (N.D. Ill. August 10, 1981) . . 25, 26 EEOC v. Children's Hospital, 719 F.2d 1426 (9th Cir. 1983) (en banc) . . . . . . . 14 EEOC v. Citicorp Diners Club, Inc., 985 F.2d 1036 (10th Cir. 1993) . 23, 24, 29, 30, 32, 35 EEOC v. Deb Shops, Inc., No. 94 C 5985, 1995 WL 579541 (N.D. Ill. Sept. 28, 1995). . . . . . . . . . . . . . . . . . . . . . . . 24 EEOC v. Dillard Dept. Stores, Inc., No. CA 3-97-CV-0986, 1998 WL 25548 (N.D. Tex. Jan. 19, 1998) . . . . . . . . . . . . . . . . . . . . 24 EEOC v. Ford Motor Credit Co., 26 F.3d 44 (6th Cir. 1994) . . . . . . . . . . 25, 26 EEOC v. Institute of Gas Technology, 23 FEP 825 (N.D. Ill. 1980) . . . . . . 15, 17, 20 EEOC v. Karuk Tribe Housing Authority, – F.3d – , 2001 WL 902176 (9th Cir. Aug. 13, 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 EEOC v. Kimberly-Clark Corp., 511 F.2d 1352 (6th Cir. 1975) . . . . . . . . . . . . 23 EEOC v. Kloster Cruise Ltd., 939 F.2d 920 (11th Cir. 1991). . . . . . . . . . . . . 20 EEOC v. Maryland Cup Corp., 785 F.2d 471 (4th Cir. 1986) . . . . . . . . 29, 31, 32, 36 CASES PAGE(S) EEOC v. Quad/Graphics, Inc., 868 F. Supp. 1078, aff'd, 63 F.3d 642 (7th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . 32 EEOC v. Quad/Graphics, Inc., 63 F.3d 642 (7th Cir. 1995) . 8, 9, 11, 22, 31, 32, 35, 37 EEOC v. Roadway Express, Inc., 750 F.2d 40 (6th Cir. 1984) . . . . . 17, 24, 29, 30 EEOC v. Shell Oil Co., 466 U.S. 54 (1984) . . . . . . . . . . . . 10, 23, 24, 30 EEOC v. Southern Farm Bureau Casualty Ins. Co., 2000 WL 1610617 (E.D. La. Oct. 26, 2000) . . . . . . . . . . . . . . . . . . . . . . . . 26 EEOC v. Staley Mfg. Co., 711 F.2d 780 (7th Cir. 1983) . . . . . . . . . . . . . . 35 EEOC v. Switching Systems Div., 783 F. Supp. 369 (N.D. Ill. 1992) . . . . . . . . . 16 EEOC v. Tempel Steel, 814 F.2d 482 (7th Cir. 1987). . . . . . . . . . 9, 12, 16, 17, 32 Endicott Johnson Corp. v. Perkins, 317 U.S. 501 (1943) . . . . . . . . . . . . . . 14 Espinoza v. Farah Mfg Co., 414 U.S. 86 (1973) . . . . . . . . . . . . . . . . . 15, 19 FTC v. Feldman, 532 F.2d 1092 (7th Cir. 1976) . . . . . . . . . 10, 14, 15, 16, 17, 19 FTC v. Shaffner, 626 F.2d 32 (7th Cir. 1980) . . . . . . . . . . . . . . . . . passim FTC v. Texaco, Inc., 555 F.2d 862 (D.C. Cir. 1977) . . . . . . . . . . . . . . . . 31 Fernandes-Middleton v. Air India, No. 89-0543, 1989 WL 222970 (D.D.C. Dec. 28, 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Fortino v. Quasar Co., 950 F.2d 389 (7th Cir. 1991) . . . . . . . . . . . . . . . . 15 Inspector General, United States Dept. of Housing and Urban Dev., 947 F. Supp. 386 (C.D.Ill. 1996) . . . . . . . . . . . . . . . . . . . . . . . 31 Marshall v. Able Contractors, Inc., 573 F.2d 1055 (9th Cir. 1978) . . . . . . . . . 18 CASES PAGE(S) Martin v. Great Lakes Indian Fish & Wildlife Comm'n, 1992 WL 300841 (W.D. Wis. Oct. 7, 1992), aff'd, 4 F. 3d 490 (7th Cir. 1993) . . . . . . . 15, 17 NLRB v. Brown Transport Corp., 620 F. Supp. 648 (N.D. Ill. 1985) . . . . . . 34, 36, 37 Novak v. World Bank, 1979 WL 225 (D.D.C. June 13, 1979) . . . . . . . . . . . . 16 Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186 (1946) . . . . . . . . . . . . 12, 14 Plair v. E.J. Brach & Sons, Inc., 105 F.3d 343 (7th Cir. 1997) . . . . . . . . . . . 28 Reich v. Great Lakes Indian Fish & Wildlife Comm'n, 4 F. 3d 490 (7th Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . . 17, 18 United States v. Coyle, 943 F.2d 424 (4th Cir. 1991) . . . . . . . . . . . . . . . . 9 University of Pennsylvania v. EEOC, 493 U.S. 182 (1990) . . . . . . . . . . . . . . 23 United States v. Morton Salt Co., 338 U.S. 632 (1950) . . . . . . . . . . . . . . . 12 Vicedomini v. Alitalia Airlines, No. 2431, 1983 WL 616 (S.D.N.Y. Nov. 14, 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Weeks v. Samsung Heavy Industrial Co., 126 F.3d 926 (7th Cir. 1997) . . . . . . 15 FEDERAL STATUTES AND RULES 42 U.S.C. § 2000e-2(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 22 42 U.S.C. § 2000e-2(k)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 42 U.S.C. § 2000e-5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 42 U.S.C. § 2000e-5(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 12, 23 42 U.S.C. § 2000e-8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 22 42 U.S.C. § 2000e-8(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 22, 23 42 U.S.C. § 2000e-9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 12, 13 29 U.S.C. § 161(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 No. 01-1937 _________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT __________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee, v. UNITED AIR LINES, INC., Defendant-Appellant. _______________________________________________________ On Appeal from the United States District Court for the Northern District of Illinois, Honorable George W. Lindberg, No. 01 C 242 _______________________________________________________ BRIEF OF THE UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS PLAINTIFF-APPELLEE _______________________________________________________ STATEMENT OF JURISDICTION The jurisdictional summary of the Defendant-Appellant, United Air Lines, Inc. ("United") is true and correct. STATEMENT OF THE ISSUE Whether the district court properly enforced the Equal Employment Opportunity Commission's ("EEOC") subpoena duces tecum after finding that the EEOC had jurisdiction to investigate the charging party's claims of national origin and sex discrimination and that the EEOC's subpoena is not unduly burdensome. STATEMENT OF THE CASE 1. Nature of the Case This is an appeal from an order of the United States District Court for the Northern District of Illinois granting the EEOC's application for enforcement of an administrative subpoena duces tecum. 2. Course of Proceedings The EEOC initiated this action on January 12, 2001, by filing an application for enforcement to show cause why the administrative subpoena duces tecum should not be enforced. R. 1 (application). At a March 15, 2001, hearing, the district court orally granted the application. A-40 (transcript). The next day the district court entered an order granting the EEOC's application but staying enforcement of the order pending United's appeal to this court. A-1 (order). 3. Statement of Facts On January 7, 1990, Maureen Droge ("Droge") began working for United as a flight attendant. R. 8, ¶ 18 (statement of material facts). United employs approximately 100,000 people. Id. at ¶ 5. Approximately 9,100 of those employees work outside the United States and another 2,000 employees are flight attendants domiciled in countries other than the United States. Id. at ¶ 5. Approximately 342 flight attendants are based in France. Id. at ¶ 8. Nearly all of the flight attendants have the Association of Flight Attendants ("AFA") as their exclusive collective bargaining representative and are covered by the collective bargaining agreement ("CBA") between United and the AFA. Id. at ¶¶ 9, 10. In November 1995, United temporarily assigned Droge to United's Charles de Gaulle ("CDG") domicile in Paris, France. Id. at ¶ 19. Because United does not permit its employees to fly during their third trimester of pregnancy, Droge was placed on involuntary leave during her third trimester. A-3. When Droge asked United what benefits she could receive, she was told to apply for Illinois Unemployment Compensation. A-4. Because she was not living in Illinois, however, Droge's application was rejected. Id. When Droge went back to United and asked what she should do next, she was essentially told that there was nothing United could do for her. Id.; see also R. 9, Tab 3 (determination on petition to revoke). On February 8, 1999, Droge filed a charge of discrimination alleging that United had violated Title VII by discriminating against her and other Americans on the basis of their national origin by failing to pay into the French Social Security system, which resulted in American employees being uncompensated "for absences from work due to illness or temporary disability." R. 2, Attachment 1 (charge). On June 19, 2000, Droge amended her charge to state, "I believe that I and other females have been discriminated against in violation of Title VII." Id. After deferring the charge to the Illinois Department of Human Rights, on March 1, 1999, the EEOC sent United notice of the charge. Id. at ¶ 4(b) (Cousins Decl.). On February 4, 2000, the EEOC submitted to United's counsel a request for information. R. 2, ¶ 4(c). The request asked for: 1) information relating to the benefits provided to employees working in France, including the basis for providing such benefits; 2) the name of each employee residing abroad who had taken or been placed on medical leave or who had otherwise been laid off; and 3) the basis for the leave or lay off, and identification of any benefits the employee received as a result of the leave or lay off. Id. United failed to provide this information. Id. at ¶ 4(d). On July 5, 2000, the EEOC issued a subpoena pursuant to Section 710 of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-9. Id. & Attachment 3 (subpoena). The subpoena consists of twelve numbered paragraphs. Id. The first two paragraphs ask that United identify all benefits received by French employees residing in France (including health insurance, unemployment insurance, pension or social security benefits, disability benefits, medical and family leave benefits) and to state whether each benefit is provided by the French government, a private contractor or by United. Id. at ¶¶ 1, 2. The third paragraph asks whether United makes any financial contribution toward each benefit. Id. at ¶ 3. The next three paragraphs ask whether each benefit is provided by law or voluntarily, whether each benefit may be provided to non- French citizen employees residing in France, and whether each benefit that can be provided to non-French citizens actually is provided. Id. at ¶¶ 4-6. Paragraph seven requests information about benefits that can, but are not, provided to non-French citizen employees and what benefits, if any, are offered in lieu of the benefits given to French citizens. Id. at ¶ 7. Paragraph eight asks the cost to United in United States dollars of providing the benefits to French citizen employees that are not provided to non-French citizens and the cost to United for those benefits provided to non-French citizens in lieu of the benefits given to French citizens. Id. at ¶ 8. The next paragraphs asks for the value in United States dollars of the benefits provided to French and non- French citizen employees. Id. at ¶ 9. The final three paragraphs seek information concerning United employees residing abroad. Paragraph ten asks United to identify those employees residing abroad who have been placed on medical leave of absence, disability leave, or who have been laid off. Id. at ¶ 10. This paragraph also asks that United state the basis for the leave or layoff, the sex of the employee, the citizenship of the employee, the nationality of the employee, and whether the employee was placed on leave or layoff because of pregnancy. Id. The twelfth paragraph asks for information about any benefits received by employees as a result of going on or being placed on leave or being laid off, and the source of the benefits. Id. at ¶ 12. The eleventh paragraph asks United to identify its employees residing abroad who, for medical reasons including but not limited to pregnancy, have applied for unemployment compensation with the United States government or foreign governmental entities. Id. at ¶ 11. Instead of providing the information requested by the subpoena, on July 14, 2000, United served the EEOC with a Petition to Revoke Subpoena. R. 2, ¶ 4(e). On October 6, 2000, the EEOC served United its determination of United's petition. See id. at ¶ 4(f). The determination rejected United's arguments for revocation of the subpoena but modified the subpoena to provide that the information sought was limited to the time period January 1, 1997, to the present. Id. United failed to comply with the subpoena and indicated through its counsel that it would not do so. Id. at ¶ 4(g). On August 8, 2000, however, United supplied the EEOC with a copy of the CBA and United's "Summary Plan Description for Flight Attendants," which states the source of benefits provided by United to its AFA-represented flight attendants. R. 8, ¶ 11. On January 12, 2001, the EEOC filed in federal district court an application for an order to show cause why the subpoena should not be enforced. R. 1. The EEOC argued that it issued the subpoena pursuant to its authority under Sections 706, 709, and 710 of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e-5, 2000e-8, and 2000e-9, which authorize the EEOC to investigate charges alleging Title VII violations, to obtain relevant documents from employers, and to have its subpoenas enforced by the court. Id. at 3. The EEOC contended that its subpoena should be enforced because "the Commission's investigation of an alleged violation of Title VII is clearly within its authority, the subpoena is quite specific, and the information sought is directly related to the matters under investigation." Id. at 3-4. In response to the EEOC's application for an order to show cause, United filed on March 5, 2001, a Memorandum in Support of its Motion for Summary Judgment or, in the Alternative, its Opposition to the EEOC's Application to Show Cause. R. 7 (memorandum). United argued that the subpoena should not be enforced because Droge's charge really alleged citizenship discrimination and the EEOC lacks jurisdiction over those claims. Id. at 3. United also contended that an international treaty prevents it from paying into the French social security system for Droge and other United States citizens. Id. at 5. United further asserted that portions of the subpoena are not reasonably relevant to the EEOC's investigation and that the court should therefore decline to enforce those portions of the subpoena. Id. at 9. United also argued that the subpoena is overly burdensome. Id. at 13. Moreover, United contended, it is unable to satisfy the EEOC's request for information about benefits from any source received by French citizen employees residing in France and about the identity of employees residing abroad who have applied for unemployment compensation with any governmental entity. Id. 4. District Court Decision On March 15, 2000, the district court held a hearing on the EEOC's application for an order to show cause why its subpoena should not be enforced. The district court rejected United's argument that Droge's charge alleged citizenship discrimination and that the EEOC therefore lacked authority to investigate it. A-39. In reaching this conclusion, the district court stated, "I'm deciding the issue on the basis that this is a national origin matter, which is the heart of your argument, and not one of citizenship." Id. The district court found that the EEOC also has jurisdiction to investigate Droge's charge because it alleges sex discrimination. A-40. The district court also rejected United's argument that it is "self-evident" that compliance with the subpoena would be unduly burdensome because it would take five and a half employees a year to respond to the subpoena and "[n]o employer in America," no matter how big, "has got five employees that have nothing else to do but go through documents." A-34. The district court found this argument to be "extraordinarily hollow," stating that it "[i]t suggests that United and American and Sears and General Electric–that they really should be immune from the type of searches that Grace and Elmer might be subjected to through a subpoena, simply because of bigness." A-33. The court emphasized that an employer's "size really shouldn't be relevant, because if we have Grace and Elmer here running a little company out in Elk Grove Township that has, say, 50 people, they can be whacked by EEOC with a burden that, relatively speaking, is significantly greater than that being imposed on United Air Lines when you compare the relative resources of both." A-34. After making its ruling, the court stated its desire "that the parties could work together to try to, as I indicated before, put first things first and do the least intrusive searching for the most essential questions." A-37, 38. The court also stated that it would be "up to counsel to work that out, but that's the – that will be the ruling of the Court." A-38. In response to the court's ruling and suggestion that the parties work together, counsel for United stated, "could we request a stay because we want to take this up to the Seventh Circuit" since "we think it abundantly clear that the claims of national origin discrimination are relating to citizenship" and that the EEOC therefore lacks jurisdiction. Id. Counsel for the EEOC stated that the EEOC obviously would not want its investigator to waste two years "looking through documents if the belief is that at the end of the day, there won't be anything there," agreeing with the district court that "this could be approached in a pyramid like fashion." A-38, 39. The day after the hearing, the district court entered an order stating that the EEOC "has jurisdiction to investigate the underlying Charges in this case as they allege national origin and sex discrimination and therefore fall within the scope of Title VII" and that the "information sought by the EEOC subpoena is not unduly burdensome." A-1. The district court therefore ordered United to comply fully with the subpoena but stayed enforcement of its order pending United's appeal to this Court. Id. 5. Standard of Review Contrary to United's assertion that "[t]he standard of review in this case is de novo," United Br. at 18, "a district court's decision to enforce an agency subpoena generally is reviewed deferentially." EEOC v. Quad/Graphics, Inc., 63 F.3d 642, 645 (7th Cir. 1995) (quoting Dow Chemical Co. v. Allen, 672 F.2d 1262, 1267 (7th Cir. 1982)). A district court's assessment of whether compliance with a subpoena would be burdensome "‘should only be reversed for abuse of discretion save where [it is] intimately tied to a misunderstanding of law, in which case the ordinary standard of error applies.'" Id. (quoting Dow Chemical, 672 F.2d at 1267). Similarly, a district court's finding that documents are reasonably relevant to a legitimate agency purpose can be overturned only upon a showing that the court's factual determinations "‘are clearly erroneous or that the ruling itself constitutes an abuse of discretion.'" Id. (quoting Dow Chemical, 672 F.2d at 1267).<1> The only issue that should be reviewed under a de novo standard is the extent of the EEOC's investigatory authority. See EEOC v. American & Efird Mills, Inc., 964 F.2d 300, 302 (4th Cir. 1992) ("The issue presented in this [ADEA] case regarding the EEOC's investigatory authority is one of statutory interpretation, which we review de novo.") (citing United States v. Coyle, 943 F.2d 424, 426 (4th Cir. 1991)). SUMMARY OF ARGUMENT The district court properly enforced the Commission's administrative subpoena seeking information from United about Droge's charge of discrimination alleging sex and national origin discrimination. "In a subpoena enforcement proceeding, the role of the court is ‘sharply limited.'" EEOC v. Tempel Steel Co., 814 F.2d 482, 485 (7th Cir. 1987) (citation omitted). Thus, "[a]s long as the investigation is within the agency's authority, the subpoena is not too indefinite, and the information sought is reasonably relevant, the district court must enforce an administrative subpoena." Id. (citations omitted). Once this threshold showing has been established, a court can only modify or refuse to enforce a subpoena where the defendant "carries the difficult burden of showing that the demands are unduly burdensome or unreasonably broad." FTC v. Shaffner, 626 F.2d 32, 38 (7th Cir. 1980). "To establish that the EEOC's subpoena is excessively burdensome, [an employer] must show that compliance would threaten the normal operation of its business." EEOC v. Quad/Graphics Inc., 63 F.3d 642, 648 (7th Cir. 1995) (citing EEOC v. Bay Shipbuilding Corp., 668 F.2d 304, 313 (7th Cir. 1981)). Here, the district court properly found that the EEOC had authority to investigate Droge's charge of discrimination because it alleges national origin and sex discrimination. United does not dispute that it is subject to Title VII or that the EEOC is authorized to enforce Title VII. Instead, United attempts to put the cart before the horse by arguing that Droge's charge alleges citizenship discrimination and that because Title VII does not prohibit citizenship discrimination, the EEOC lacks jurisdiction over the charge. This Court has routinely held, however, that except in narrow circumstances defendants may not litigate jurisdictional issues as a defense to subpoena enforcement actions. See, e.g., FTC v. Feldman, 532 F.2d 1092, 1096 (7th Cir. 1976). Although United argues that one of these exceptions applies in this case because Droge's claim alleges citizenship discrimination as a matter of law, the exception is not applicable because the nature of Droge's claim is not a purely legal question. Whether Droge was discriminated against on the basis of citizenship or national origin is not a question of law, but rather a question of fact. Because the EEOC must make that determination in the first instance, the argument that Droge's claim is not countenanced by Title VII cannot be raised as a defense to the EEOC's subpoena enforcement action. See, e.g., Shaffner, 626 F.2d at 35-36. The EEOC also clearly has authority to investigate Droge's claim of sex discrimination. United's argument to the contrary notwithstanding, whether the subpoena was designed with the purpose of investigating Droge's claim of sex discrimination is irrelevant. The simple fact is that Title VII requires the EEOC to investigate Droge's charge of sex discrimination. The subpoena requests information relevant to the charge. Therefore, the district court properly held that the EEOC's subpoena is within its authority. Although the district court did not explicitly find that the material requested by the subpoena is relevant to the EEOC's investigation, the district court's decision to enforce the subpoena necessarily includes this implicit finding. In any event, this Court should find that the subpoena should be enforced in its entirety because it seeks information relevant to the EEOC's investigation of Droge's charge alleging sex and national origin discrimination. "Since 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." EEOC v. Shell Oil Co., 466 U.S. 54, 68-69 (1984) (footnote omitted). This is not a case in which the EEOC has sought information beyond the scope of the allegations in the charge. Droge has alleged discrimination in the provision of benefits on the basis of national origin and gender, and the EEOC has sought information about the benefits provided to United employees outside the United States and about the gender of benefit recipients. Finally, the district court did not abuse its discretion in finding that United failed to meet its heavy burden of establishing that compliance with the subpoena would threaten the normal operation of its business. See Quad/Graphics, 63 F.3d at 648. Even if it actually took five and a half employees working a year to gather information responsive to the subpoena (or 275 employees working a week), United has not shown that it cannot spare some of its 100,000 employees for the time required without threatening the normal operation of its business. ARGUMENT I. THE DISTRICT COURT PROPERLY FOUND THAT THE MATERIAL SOUGHT IN THE SUBPOENA IS RELEVANT TO AN INVESTIGATION WITHIN THE EEOC'S STATUTORY AUTHORITY. The Supreme Court and this Court have definitively held that administrative subpoenas are properly enforced where the "inquiry is within the authority of the agency, the demand is not too indefinite and the information is reasonably relevant." United States v. Morton Salt Co., 338 U.S. 632, 652 (1950); Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186, 209 (1946) (enforcement proper where agency is authorized to make demand, demand is not too indefinite or broad, and materials sought are relevant); EEOC v. Tempel Steel Co., 814 F.2d 482, 485 (7th Cir. 1987) (same). This Court has concluded that "[i]n a subpoena enforcement proceeding, the role of the court is ‘sharply limited.'" Tempel Steel Co., 814 F.2d at 485 (citation omitted). Thus, "[a]s long as the investigation is within the agency's authority, the subpoena is not too indefinite, and the information sought is reasonably relevant, the district court must enforce an administrative subpoena." Id. (citations omitted). "The EEOC's authority to investigate under Title VII is quite broad." Tempel Steel, 814 F.2d at 485 (citation omitted). Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on sex or national origin. 42 U.S.C. § 2000e-2(a). Section 706 of Title VII requires that "[w]henever a charge is filed by . . . a person claiming to be aggrieved" under the statute, the Commission "shall make an investigation." 42 U.S.C. § 2000e-5(b). Title VII further provides that in conducting its investigations, the EEOC "shall" have access to "any evidence" of any person under investigation "that relates to unlawful employment practices . . . and is relevant to the charge under investigation." 42 U.S.C. § 2000e-8(a). Section 710 allows the EEOC to have its subpoena enforced by the district court. See 29 U.S.C. § 161(1) (incorporated by reference into 42 U.S.C. § 2000e-9). On appeal, United challenges the district court's order finding that the EEOC has authority to investigate Droge's claims of national origin and sex discrimination. United also argues that the district court erred in failing to make an explicit finding with respect to the relevancy of the information requested by the subpoena, which United claims is not reasonably relevant to the EEOC's investigation of Droge's charge. Because these claims are without merit, this Court should affirm the district court's order enforcing the EEOC's subpoena. A. The EEOC Has the Authority to Investigate Droge's Charge "Historically, federal courts have been reluctant to interfere in agency investigations." Shaffner, 626 F.2d at 35. Despite this reluctance and the broad investigatory powers Congress conferred upon the EEOC, United contends that the district court erred in finding that the EEOC has the authority to investigate Droge's claims of national origin and sex discrimination. According to United, the district court erred in failing to recognize that Droge's charge of national origin discrimination is really a charge of citizenship discrimination over which the EEOC lacks jurisdiction. United also disputes the merits of any potential finding of discrimination, arguing that the discriminatory treatment Droge complains of is mandated by a treaty between the United States and France. Finally, while United acknowledges that Droge's charge contains claims of sex discrimination, United nevertheless argues that the district court should have denied enforcement of the subpoena because the EEOC based the subpoena on the request for information the EEOC submitted to United, which was drafted before Droge amended her charge to add a claim of sex discrimination. 1. National Origin Claim The district court properly enforced the subpoena on the ground that the EEOC had jurisdiction over Droge's charge alleging national origin discrimination. By doing so, the district court appropriately enabled the EEOC first to determine whether Droge was discriminated against, and if so, whether that discrimination was due to her national origin (as Droge alleges in her charge) or whether it was due to her citizenship (as United claims). As the Supreme Court has stated, "Congress has authorized the [agency], rather than the District Courts in the first instance, to determine the question of coverage in the preliminary investigation of possibly existing violations; in doing so to exercise [its] subpoena power for securing evidence upon that question . . . and, in case of refusal to obey [its] subpoena, issued according to the statute's authorization, to have the aid of the District Court in enforcing it." Walling, 327 U.S. at 214; see also Endicott Johnson Corp. v. Perkins, 317 U.S. 501, 508-09 (1943) (holding that the Secretary of Labor, and not the district court, had the authority to determine in the first instance whether employees were covered by the Walsh-Healey Act, and finding that the Secretary's subpoena therefore should have been enforced). Defendants are generally prohibited from defending against a subpoena enforcement action with arguments going to the merits of the case, including jurisdictional issues. See Shaffner, 626 F.2d at 36; see also Feldman, 532 F.2d at 1096 ("[A]ppellants may not litigate the jurisdictional issue as a defense in a subpoena enforcement action.") (internal quotations and citation omitted); EEOC v. Children's Hospital, 719 F.2d 1426, 1429 (9th Cir. 1983) (en banc) (rejecting defendant's argument that the EEOC lost its "jurisdiction" to investigate claims of racial discrimination because of the res judicata effect of an earlier consent decree and stating, "agency jurisdiction is not abrogated because the party being investigated may have a valid defense to a subsequent suit by the agency") (footnote omitted); EEOC v. Institute of Gas Technology, 23 FEP 825, 827 (N.D. Ill. 1980) (stating that a "district court is precluded from inquiring into the jurisdiction of the EEOC during a proceeding to enforce a subpoena duces tecum"). Despite the general prohibition against raising jurisdictional defenses in a subpoena enforcement action, this Court has held that in three specific circumstances a defendant may challenge an agency's authority to issue a subpoena: "‘(1) [when] the agency has clearly violated a right secured by statute or agency regulation [ ]; (2) [when] the issue involved is a strictly legal one not involving the agency's expertise or any factual determinations [ ]; or (3) [when] the issue cannot be raised upon judicial review of a later order of the agency [ ].'" Feldman, 532 F.2d at 1096 (quoting Borden Inc. v. FTC, 495 F.2d 785, 786-87 (7th Cir. 1974)) (citations omitted); see also Shaffner, 626 F.2d at 36. United argues that the second exception applies here because as a matter of law Droge's charge complains of actions amounting to citizenship discrimination and the EEOC lacks jurisdiction over citizenship discrimination claims. United Br. at 20-25. To support this argument, United cites only two subpoena enforcement actions--Martin v. Great Lakes Indian Fish & Wildlife Comm'n, 1992 WL 300841, at **5-10 (W.D. Wis. Oct. 7, 1992) and Shaffner, 626 F.2d 32.<2> A review of these cases, as well as other relevant decisions of this Court, establishes that the district court properly rejected United's argument. This Court has consistently enforced agency subpoenas where the respondents' challenge to the subpoenas turned on factual matters in controversy. See Tempel Steel, 814 F.2d at 485; Shaffner, 626 F.2d at 35; and Feldman, 532 F.2d at 1096. In Feldman, this Court rejected the defendants' argument that the defense of res judicata or collateral estoppel justified their failure to respond to the Federal Trade Commission's ("FTC") subpoenas. This Court stated, "[t]he subpoenas represent the Commission's attempt to obtain factual information needed in the development of a decision as to what, if any, action should be taken, and for use in a proceeding if instituted. Interpretation of this factual information necessarily involves agency expertise and discretion." Id. at 1096. This Court reached the same result in Shaffner, a case in which the FTC sought enforcement of a subpoena duces tecum to examine the records of an attorney thought to be engaged in illegal debt collection practices. See Shaffner, 626 F.2d at 35. In that case, the attorney opposed enforcement on the ground that, as an attorney, the applicable statute exempted him from coverage. Id. This Court held that "a party can challenge the authority of an agency to issue a particular subpoena[ ] where . . . the issue involved is a strictly legal one not involving the agency's expertise or any factual determinations." Id. at 36. Finding that "there may be issues of fact bearing on the legal question of whether appellee's activities fall within the statutory exclusion" and determining that the "FTC's subpoena is properly designed to illuminate these questions," this Court enforced the subpoena. Id. at 36. In Tempel Steel the defendant argued that the EEOC's subpoena should not be enforced because the charging party had failed to file a timely charge of discrimination, depriving the EEOC of jurisdiction to investigate the claim. See Tempel Steel, 814 F.2d at 484. This Court agreed with the EEOC that "Tempel Steel's timeliness objection is not a proper defense to enforcement of the subpoena." Id. at 485. Therefore, this Court declined to decide whether the charge was timely filed. Id. Emphasizing that "the EEOC's authority to investigate is not negated simply because the party under investigation may have a valid defense to a later suit," this Court affirmed the district court's order enforcing the subpoena. Id. (citations omitted); see also EEOC v. Roadway Express, Inc., 750 F.2d 40, 42 (6th Cir. 1984) (stating that subpoena enforcement actions are "not the proper time to litigate the merits of a claim, either procedurally or substantively" where the defendant claimed that the EEOC lacked authority to investigate claim of discrimination because the charge was not timely filed); Institute of Gas Technology, 23 FEP at 827 (refusing to decide whether Title VII applies extraterritorially and enforcing EEOC subpoena). Although United cites Reich v. Great Lakes Indian Fish & Wildlife Comm'n, 4 F.3d 490 (7th Cir. 1993), this case does not support United's position that the district court erred in enforcing the EEOC's subpoena.<3> In contrast to Feldman, Shaffner, and Tempel Steel, where this Court found that the defendants' challenges to the agency subpoenas involved factual issues, in Great Lakes, this Court concluded that the Department of Labor's subpoena should not be enforced because as a matter of law the Fair Labor Standards Act did not apply to the defendant, a tribal organization. Significantly, in reaching this conclusion this Court stated that "[i]f it were doubtful whether the [defendant] was failing to pay time and a half for overtime" in violation of the FLSA, "or if the question whether the [respondent] is subject to the Act could not be resolved without the information sought by the subpoena, the deferral suggested by the Department [of Labor] would be proper." Id. at 491 (emphasis added). Because the defendant admitted it did not pay over time to its employees, and because this Court found that "the question of statutory coverage is independent of any information that the subpoena might produce as it is a question purely of law," this Court affirmed the district court's refusal to enforce the subpoena. Id. at 491- 92 (emphasis added); see also EEOC v. Karuk Tribe Housing Authority, – F.3d – , 2001 WL 902176, at *5 (9th Cir. Aug. 13, 2001) (holding that the question of whether tribal housing authority is subject to the ADEA "is a pure question of law, the resolution of which does not depend on a factual inquiry").<4> In contrast to Great Lakes, where the defendant contended that it was not subject at all to the federal law authorizing the administrative investigation at issue, in this case United does not dispute that it must comply with Title VII. Instead, United contends that the actions Droge complains about in her charge of discrimination are due to her citizenship status and that the EEOC therefore lacks jurisdiction over her claim of national origin discrimination. Thus, unlike the issue raised in Great Lakes, which could be decided purely as a matter of law, the issue raised by United is not one that "is a strictly legal one not involving the agency's expertise or any factual determinations" Feldman, 532 F.2d at 1096 (citation and internal quotations omitted). Whether United discriminated against Droge on the basis of her national origin, as she alleged, or whether it discriminated against her based on her citizenship, as United claims, requires a factual inquiry into what kinds of benefits United's overseas employees receive, what various international treaties mandate and prohibit, which employees are subject to collective bargaining agreements and what the terms of the agreements are, and what kinds of benefits are available to overseas employees through their local governments.<5> The EEOC's subpoena is properly designed to gather information bearing on this issue. See Shaffner, 626 F.2d at 36 (stating that "[w]e do say that there may be issues of fact bearing on the legal question of whether appellee's activities fall within the statutory exclusion" and that the "FTC's subpoena is properly designed to illuminate these questions.") (citation omitted); see also EEOC v. Kloster Cruise Ltd., 939 F.2d 920, 924 (11th Cir. 1991) (stating that "many of the EEOC's requests for documents are attempts to discover information that would be relevant" to jurisdiction, an inquiry involving Title VII's applicability to owners of foreign flagged cruise ships, and concluding "that the jurisdictional issue was prematurely resolved by the district court"). Although United provided its "Summary Plan Description for Flight Attendants," and excerpts of the CBA, which provide some information bearing on the issues raised by Droge's charge, submission of these documents does not resolve the issue of whether the discrimination Droge complains of is actionable under Title VII. Therefore, it does not absolve United of its duty to comply with the subpoena. See Institute of Gas Technology, 23 FEP at 829 ("Whether the information already provided is all that is required is not a decision to be made by the respondent. The nature and extent of the investigation under Title VII is reserved to the agency.") (citations omitted) (emphasis in original). If the EEOC determines that United discriminated against Droge based on her national origin, United "will be free to litigate that issue before the EEOC on the basis of the facts as developed and then before the appropriate court if necessary." Kloster Cruise, 939 F.2d at 924 (citation omitted). Because this is a subpoena enforcement action, however, United cannot now litigate the issue of whether the actions Droge complains of constitute citizenship discrimination. Therefore, the district court properly refrained from deciding this issue and allowed the EEOC the opportunity to "investigate the facts, including the facts relevant to jurisdiction." Id. "To do otherwise would be to not only place the cart before the horse, but to substitute a different driver for the one appointed by Congress." Id. (internal quotations and citations omitted). 2. Sex Discrimination Claim Apart from the citizenship-national origin dispute, this Court should also affirm the district court's order enforcing the subpoena on the ground that the EEOC unquestionably has the authority to investigate Droge's charge of sex discrimination. United wisely does not attempt to argue that the EEOC lacks the authority to investigate claims of sex discrimination. Instead, United argues that the district court should have refused to enforce the subpoena because "the EEOC's claim that it issued its subpoena pursuant to a sex discrimination investigation is disingenuous and incorrect." United Br. at 29.<6> United contends that because the July 5, 2000 subpoena is essentially the same as the EEOC's February 4, 2000 request for information, and because Droge did not amend her charge to add a claim of sex discrimination until June 19, 2000, the EEOC is precluded from arguing that the subpoena should be enforced because the EEOC has authority to investigate Droge's claim of sex discrimination. This argument makes no sense. United does not deny that on June 19, 2000, Droge amended her charge to add the statement, "I believe that I and other females have been discriminated against in violation of Title VII." R. 2, attachment 1 (charge). Nor does United deny that Title VII confers upon the EEOC the authority to investigate claims of sex discrimination. Indeed, under Title VII the EEOC must investigate all charges of sex discrimination filed with the agency. See 42 U.S.C. § 2000e-2(a) (prohibiting employment discrimination based on sex; 42 U.S.C. § 2000e-5(b) ("Whenever a charge is filed by . . . a person claiming to be aggrieved," the Commission "shall make an investigation"). The fact that the subpoena is essentially the same as the EEOC's request for information, which was drafted before Droge amended her charge to add a claim of sex discrimination, does not alter the fact that the material sought by the subpoena will yield information relevant to the EEOC's statutorily mandated investigation of Droge's claim of sex discrimination. If United believes the original request for information was too broad, that concern is now moot, because with the amendment of the charge and subsequent issuance of a subpoena, the only question before the court is whether the subpoena "relates to an investigation within the agency's authority." Quad/Graphics, 63 F.3d at 645 (emphasis added) (citations omitted). Because the EEOC's subpoena relates to an investigation of Droge's charge of sex discrimination, which is clearly within the EEOC's authority to investigate, this Court should affirm the district court's order enforcing the subpoena on the ground that the EEOC has jurisdiction to investigate Droge's charge alleging sex discrimination. B. The Subpoena Seeks Information Reasonably Relevant to Droge's Claims of National Origin and Sex Discrimination Although the district court did not make an explicit finding that the information requested by the subpoena is relevant, the district court's decision to enforce the subpoena necessarily includes an implicit determination that the EEOC's subpoena requests information relevant to an investigation of Droge's claims of national origin and sex discrimination. United contends, however, that many portions of the subpoena request information that is not reasonably relevant to the EEOC's investigation. United Br. at 33-40. According to United, "[a]t most, [Droge's] charge authorizes the EEOC to investigate what sick leave benefits and temporary disability benefits United provides to its flight attendants based in France." Id. at 34. This argument reflects a fundamental misunderstanding of the nature and breadth of the EEOC's investigatory authority. "To enable the Commission to make informed decisions at each stage of the enforcement process, § 2000e-8(a) confers a broad right of access to relevant evidence." University of Pennsylvania v. EEOC, 493 U.S. 182, 191 (1990); see 42 U.S.C. § 2000e-8(a) (stating that the Commission "shall at all reasonable times have access to . . . any evidence of any person being investigated . . . that relates to unlawful employment practices covered by [the Act] and is relevant to the charge under investigation."). "Since 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; see also EEOC v. Citicorp Diners Club, Inc., 985 F.2d 1036, 1039 (10th Cir. 1993) (reasoning that relevancy should be interpreted broadly because the EEOC's role is to "‘vindicate the public interest, which is broader than that of the charging parties.'") (quoting EEOC v. Kimberly-Clark Corp., 511 F.2d 1352, 1361 (6th Cir. 1975)). Although United would have this Court limit the EEOC's investigation to the literal allegations contained in Droge's charge of discrimination in the provision of sick leave and disability benefits in France, the law does not permit such a narrow conception of relevance. Courts have traditionally countenanced EEOC investigations that depart from the literal allegations in charges to different bases of discrimination. See Citicorp Diners, 985 F.2d at 1039 (rejecting defendant's argument ‘that since Ms. Brown's charge involved discrimination based on race and sex, EEOC's request for information on Diners Club's promotion policies as such relate to national origin is irrelevant," and stating, "[t]hat is too narrow a reading of EEOC's investigative authority"). Courts have also traditionally allowed EEOC investigations to depart from the specific employment practices alleged in the charge. See Roadway Express, 750 F.2d at 43 ("[T]his Court has long held that ‘evidence concerning employment practices other than those specifically charged by complainants' may be sought by an EEOC administrative subpoena in cases involving a complaint of discriminatory discharge.") (internal quotations and citation omitted); EEOC v. Dillard Dept. Stores, Inc., No. CA 3-97-CV-0986-R, 1998 WL 25548, at *3 (N.D. Tex. Jan. 19, 1998) ("[T]he relevancy requirement does not force the EEOC to review only materials concerning the specific charge; the EEOC can subpoena materials concerning employment practices other than those specifically charged by complainants.") (citing Roadway Express, 750 F.2d at 43); EEOC v. Deb Shops, Inc., No. 94 C 5985, 1995 WL 579541 (N.D. Ill. Sept. 28, 1995) ("[T]he relevance requirement does not limit the EEOC to the evidence concerning the specific charge.") (citing Roadway Express, 750 F.2d at 43). Thus, the EEOC's request in this case for information pertaining to benefits other than those identified in Droge's charge, information about employees other than flight attendants, information about overseas employees in countries other than France, and information about benefits provided by third parties constitutes a proper request for information relevant to the EEOC's investigation into Droge's claims of sex and national origin discrimination because all of this information would tend to "cast light" on Droge's allegations. Shell Oil, 466 U.S. at 68-69. Despite the settled rule that relevancy is to be broadly interpreted, United derives a different principle by relying on a case it has misread, and two district court decisions that are clearly distinguishable. See United Br. at 33-34 (citing EEOC v. Ford Motor Credit Co., 26 F.3d 44 (6th Cir. 1994); EEOC v. Southern Farm Bureau Casualty Ins. Co., 2000 WL 1610617 at *3 (E.D. La. Oct. 26, 2000); EEOC v. Central Steel & Wire Co., 1981 WL 342, at *3 (N.D. Ill. Aug. 10, 1981)). In Ford Motor, the charging party alleged that Ford discriminated against her based on her sex by failing to promote her. Id. at 45. In connection with its investigation, the EEOC issused a subpoena requesting employment records on all employees at Ford's Memphis location employed during the past twelve and a half years. Id. The district court narrowed the temporal scope of the subpoena to three years and 300 days preceding the date of the charging party's complaint and limited the substantive scope to information concerning only the charging party. Id. While United correctly states that on appeal the Sixth Circuit rejected the EEOC's argument that it is entitled to any material that EEOC deems relevant in its discretion, United incorrectly states that in Ford Motor the Sixth Circuit "concluded that the information was not relevant and refused to issue the subpoena." United Br. at 33 (citing Ford Motor, 26 F.3d at 47). To the contrary, the Sixth Circuit enforced the EEOC's subpoena with respect to all employees at the Memphis location, although the court limited the temporal scope of the subpoena to three years and 300 days preceding the date the charge was filed. Ford Motor, 26 F.3d at 48. The court also ordered Ford to produce all records concerning the charging party dating back to the date of her hire. Id. at 47-48. With respect to the district court's refusal to order Ford to produce information concerning other employees, the Sixth Circuit stated that it agreed with the "EEOC that employment context is relevant to a charge of employment discrimination, and that the district court's order may make it difficult for EEOC to establish that context." Id. at 47. Noting that the charging party claimed she had been treated differently than similarly situated men, and concluding that the charging party's claim could not be adjudicated without deciding whether she was actually similarly situated to men who were promoted, the Sixth Circuit concluded that it was "therefore both reasonable and relevant for EEOC to have access to hiring and promotion information on other employees." Id. at 48. Thus, EEOC v. Ford Motor actually supports the EEOC's contention that in order to investigate Droge's charge of sex discrimination, as it is mandated to do by Title VII, the EEOC must have access to employment information concerning a broad range of employees to be able to determine whether United's policies have a disparate impact on men and women and whether United's policies discriminate based on national origin. United also relies on EEOC v. Southern Farm Bureau Casualty Ins. Co. and EEOC v. Central Steel & Wire Co. to support its narrow conception of relevancy, but its reliance is misplaced because these cases are distinguishable from this case. In Southern Farm Bureau, the EEOC issued a subpoena seeking information about the gender of the defendant's employees while investigating a charge alleging only race discrimination. Southern Farm Bureau, 2000 WL 1610617, at *1. The court held that the gender evidence sought in the subpoena was unrelated to the charge of racial discrimination under investigation. Id. at 3.<7> The court reached a similar conclusion in Central Steel, holding that the EEOC's subpoena seeking information about the defendant's hiring and recruitment of blacks and females was unrelated to the charging party's claim that he was discharged because he was Latino. Central Steel, 1981 WL 342, at *1-2 (N.D. Ill. 1981). Here, in contrast, the EEOC's request for information about the national origin and sex of United's overseas employees is directly related to Droge's charge, which alleges that United discriminated against her and other Americans based on their national origin and that United discriminated against her and other females based on their sex by failing to compensate them for absences from work due to illness or temporary disability. In addition to mounting a general attack on the relevancy of the EEOC's subpoena requests, United argues that specific portions of the subpoena are not reasonably related to the EEOC's investigation of Droge's charge. First, United contends that the district court erred by enforcing the EEOC's request for information about the 9,100 overseas employees who are not flight attendants because they are not similarly situated to flight attendants. United Br. at 35.<8> United further contends that its production of the Summary Plan Description and excerpts of the collective bargaining agreement, along with its assertion that these documents are the exclusive source of benefits provided to AFA-represented flight attendants, establishes that information about other overseas employees is irrelevant.<9> United's argument is circular. The EEOC cannot know which overseas employees are similarly situated to Droge until it knows what kinds of benefits these employees receive and what kinds of contracts or collective bargaining agreements govern their employment. This kind of information is necessary for the EEOC to determine whether United's policies violate Title VII and would bear on any disparate impact claim that might arise out of the facts Droge alleges. See 42 U.S.C. § 2000e-2(k)(1)(A) (discussing unlawful employment practices causing a disparate impact based on national origin or sex). United's reliance on Plair v. E.J. Brach & Sons, Inc., 105 F. 3d 343, 349 (7th Cir. 1997) does not assist its argument since in that case, which did not involve a subpoena enforcement action, this Court held that the plaintiff's evidence failed to show racial discrimination where the evidence compared bargaining unit employees with a population containing both bargaining unit and salaried employees who were subject to different work rules. Plair, 105 F.3d at 349. Plair does not really address the issue in this case. If anything, it illustrates why the EEOC's request for information about the benefits accorded overseas non-flight attendants is relevant to the EEOC's investigation. In Plair the Court needed to know what the work rules for bargaining unit employees and salaried employees were before it could determine that they were different and that the plaintiff had therefore failed to establish pretext. Similarly, here the EEOC needs to know what contracts, collective bargaining agreements, and benefits apply to its overseas non-flight attendant employees before the EEOC can determine whether there is reason to believe United's policies and actions violate Title VII. Moreover, as this Court noted in Plair, statistics are needed to prove disparate impact cases. Id. ("We have held statistics are improper vehicles to prove discrimination in disparate treatment (as opposed to disparate impact) cases.") (citation omitted). Without a sufficiently large pool of comparable employees, it is impossible to generate the statistical evidence needed to prove a disparate impact case based on either national origin or race. For the same reason, this Court should also reject United's claim that the EEOC's request for information about overseas employees outside France is irrelevant because Droge's charge "focuses exclusively on a comparison between the benefits that French citizens residing in France receive and the benefits that United States citizens residing in France receive." United Br. at 36. As discussed, supra, this argument is fundamentally flawed because the EEOC's investigation is not limited to the parameters of Droge's charge. See, e.g., Citicorp Diners, 985 F.2d at 1039; Roadway Express, 750 F.2d at 43. The EEOC cannot ignore the possibility that a company with a worldwide operation has a centralized policy that mandates treating its employees differently based on either national origin or gender, and the circumstance that the individual who filed a charge works in France does not deprive the EEOC of its authority to inquire into the existence of a company wide policy that may affect employees in other locations. United goes on to complain that information about benefits provided by third parties is not reasonably related to Droge's charge. United Br. at 38. As the EEOC argued to the district court, however, if employers did not have to produce information about benefits provided by third parties (such as unemployment insurance), they could avoid the demands of Title VII merely by contracting out their human resources functions. A-7. As for United's argument that it cannot gather this information without interviewing its employees, assuming that United's statement is true and it does not keep track of third party benefits, courts have held that "[t]he fact that the information sought exists in the minds of the supervisors and workers, not in the minds of its senior managers, does not absolve the company from seeking out that information." EEOC v. Maryland Cup Corp., 785 F.2d 471, 479 (4th Cir. 1986). Finally, United contends that information about benefits unrelated to those specifically identified in Droge's charge (compensation for absences due to illness or temporary disability) are not reasonably related to the EEOC's investigation of Droge's charge. Once again, the EEOC's investigation is not limited to the literal allegations contained in Droge's charge. See, e.g., Citicorp Diners, 985 F.2d at 1039; Roadway Express, 750 F.2d at 43. Instead, the EEOC is entitled to "virtually any material that might cast light on the allegations against" United. Shell Oil, 466 U.S. at 68-69. Information about health insurance benefits, unemployment insurance benefits, pension benefits, medical benefits, and the lay-off of overseas employees will provide material that might cast light on Droge's claims that United discriminated against her and other employees based on their national origin and sex in the provision of benefits. The district court's implicit finding that the information requested by the subpoena is relevant to the EEOC's investigation of Droge's charge also comports with this Court's broad interpretation of Title VII's relevancy requirement. See Bay Shipbuilding, 668 F.2d at 311. In Bay Shipbuilding, the charging party alleged that she and other women were denied access to the defendant's electrical department and electrical training/apprenticeship program because of their sex. Id. This Court stated that "[s]uch a charge authorized the EEOC to investigate ‘any employer practice which may shed light on the discrimination charged.'" Id. (citations omitted). Applying this standard, this Court rejected the defendant's argument that the EEOC's request for information about its advertisements and help-wanted signs was irrelevant to the EEOC's investigation. In reaching this conclusion, this Court stated that "an employer's method of recruitment and job advertisement may serve to determine whether the employer has discriminated against women in hiring for positions in the electrical department, thereby discouraging women already employed from applying or transferring to those positions." Id. As in Bay Shipbuilding, the EEOC's subpoena properly seeks information that may serve to determine whether United discriminated against employees based on their national origin or their sex. Because this information is relevant to Droge's charge alleging that United's failure to pay into the French Social Security system resulted in her and other Americans being uncompensated for absences from work due to illness or temporary disability, and also alleging that United discriminated against her and other females, this Court should enforce the subpoena in its entirety. II. THIS COURT SHOULD AFFIRM THE DISTRICT COURT'S FINDING THAT UNITED FAILED TO MAKE AN ADEQUATE SHOWING THAT COMPLIANCE WITH THE SUBPOENA WOULD THREATEN THE NORMAL OPERATION OF ITS BUSINESS. "A subpoenaed party will always be forced to endure some inconveniences and burdens when complying with a subpoena, but these inconveniences and burdens are necessary to the furtherance of a Government agency's legitimate inquiry and is in the public's best interest." Inspector General, United States Dept. of Housing and Urban Dev., 947 F. Supp. 386, 392 (C.D.Ill. 1996) (citting FTC v. Texaco, Inc., 555 F.2d 862, 882 (D.C. Cir. 1977)). Therefore, a court will modify or refuse to enforce a subpoena "only where the party objecting to the subpoena carries the difficult burden of showing that the demands are unduly burdensome or unreasonably broad." Shaffner, 626 F.2d at 38 (citation omitted); Quad/Graphics, 63 F.3d at 648. This burden "is not easily met." Maryland Cup, 785 F.2d at 477. "To establish that the EEOC's subpoena is excessively burdensome, [an employer] must show that compliance would threaten the normal operation of its business." Quad/Graphics, 63 F.3d at 648 (citing Bay Shipbuilding, 668 F.2d at 313). Because the district court did not abuse its discretion in finding that United had failed to meet its heavy burden of showing that compliance with the subpoena would disrupt its normal business operations, this Court should affirm the district court's refusal to deny enforcement of the subpoena. On appeal, United essentially recycles the arguments it made to the district court. First, United complains that the subpoena requires United to "prepare and compile numerous documents and explanations that United does not already possess," implying that the subpoena is therefore overly burdensome. United Br. at 41. It is beyond dispute, however, that the EEOC has the authority to require United to compile information and that exercising this authority does not render compliance with the subpoena unduly burdensome. See Bay Shipbuilding, 668 F.2d at 313 (citations omitted) (rejecting the defendant's argument that "the EEOC has no authority to require it to compile information"); see also Tempel Steel, 814 F.2d at 485 n. 9 ("The subpoena is not defective, however, simply because it requires Tempel Steel to compile information concerning its work force.") (citing Bay Shipbuilding, 668 F.2d at 313); Citicorp Diners, 985 F.2d at 1038-39 (rejecting defendant's argument that the EEOC cannot compel it "to develop and compile summaries by examining personnel files or by interviewing employees"); Maryland Cup, 785 F.2d at 478 ("The subpoena power of the EEOC is not limited to the production of documents already in existence."). If employers such as United were allowed to avoid compliance with subpoenas merely because they did not have all or most of the information in documentary form, "every employer could escape compliance by failing to keep many employment records, submitting an extraordinary time estimate as to the amount of time needed to compile such records, and complaining that compliance would be unduly burdensome." EEOC v. Quad/Graphics, Inc., 868 F. Supp. 1078, 1984, aff'd, 63 F.3d 642 (7th Cir. 1995).<10> United's primary argument, however, is that the district court abused its discretion in refusing to conclude that compliance with the subpoena would be unduly burdensome in light of United's evidence that because of its "computer limitations, the lack of centralization of United's files regarding international employees, and the different languages in which information about international employees is kept," United would have to conduct an "exhaustive manual review," which "would take 5.5 employees working 2000 hours for an entire year" and would nevertheless yield incomplete information unless United interviewed its 11,000 overseas employees. United Br. at 40-42. United also asserts that the "EEOC has not offered anything to refute United's evidence regarding the burdensomeness of the subpoena." United Br. at 42. United's argument on appeal reflects a misapprehension of who bears the burden of showing burdensomeness as well as what kind of showing is needed to meet this burden. United has failed to cite any authority supporting the proposition that the burden shifts to the EEOC once United has offered evidence that compliance with the subpoena would create a burden. See United Br. at 42-43. Indeed, the law of this Court is clear that the burden is on United to prove that compliance with the subpoena is burdensome; the burden is not on the EEOC to prove that it is not. See, e.g., Bay Shipbuilding Corp., 668 F.2d at 313; Shaffner, 626 F.2d at 38. Moreover, as a practical matter, it would be impossible for the EEOC to produce specific evidence refuting United's contention that it could take as many as 11,000 employee hours to comply with the subpoena. Since the EEOC does not have access or insight into United's computer systems, personnel files, or human resources department, it would be impossible for the EEOC to submit affidavits or other evidentiary support that would counter United's assertions. Because United has more than 100,000 employees, however, both the EEOC and the district court were justified in presuming that United efficiently manages and maintains its employees' records. See NLRB v. Brown Transport Corp., 620 F. Supp. 648, 654 (N.D. Ill. 1985) (rejecting employer's argument that compliance with subpoena would be unduly burdensome because of the size of the employer's operation and stating, "[i]t is presumed, by the very fact that Respondent has such a large number of employees, that it is sufficiently equipped to handle the records of its employees") (internal quotation and citation omitted). United's statement that "it would take at least 5.5 employees working 2000 hours for an entire year simply to review documents that may contain information responsive to the EEOC's subpoena" also exaggerates United's own evidence, which equivocates about how long it would take to do a manual review of each employee file. See United Br. at 40 (emphasis added). The affidavits submitted by United to the district court state that "it could easily take as long as an hour" per employee, although it could also take longer because of United's own computer and language limitations. See R.9, Ex. 7 (Hale Decl., ¶ 13) & Ex. 8 (Ogata Decl., ¶ 15) (emphasis added). With respect to the interviews United claims it would have to perform with all of its employees, it is unclear why United could not, for example, simply submit to its employees a questionnaire asking about the information sought in paragraphs 10-12 of the subpoena. Assuming, arguendo, that it would actually take United 11,000 employee hours to respond to the subpoena, it does not follow a fortiori that compliance would be unduly burdensome. An employer does not satisfy its burden of showing undue burden merely by offering evidence of how many employee hours it would take, or how much money it would cost, to comply with a subpoena. Instead, as this Court has repeatedly held, an employer must show that enforcement of the subpoena "would threaten the normal operation of its business." See, Quad/Graphics, 63 F.3d at 648 (citing Bay Shipbuilding, 668 F.2d at 313); see also EEOC v. Staley Mfg. Co., 711 F.2d 780, 788 (7th Cir. 1983) (holding that the district court properly enforced the EEOC's subpoena where the defendant failed to show "that enforcement of the subpoena would threaten the normal operation of its business"). As this Court's opinion in Quad/Graphics demonstrates, submission of an affidavit asserting that compliance with a subpoena would take a certain number of employee hours is not, by itself, sufficient to meet this burden. In Quad/Graphics, the defendant submitted an affidavit stating that it would take more than 200,000 employee-hours to comply with the EEOC's subpoena. Id. at 648. According to the affidavit, 90% of those employee-hours would be devoted to responding to the EEOC's tenth request for information. Id. at 649. This Court noted, however, that the EEOC had offered to accept a random sample of applications in response to the tenth request. Id. This Court also found that the time estimates in the affidavit were inflated and that the affidavit failed to estimate the cost of complying with the subpoena. Id. & n. 6. This Court therefore concluded that "Quad/Graphics has failed to meet its burden of establishing that compliance with the EEOC subpoena would threaten its normal business operations." Id. at 649. Other courts have also routinely rejected claims of undue burdensomeness where employers offer evidence of the cost or number of employee hours involved in complying with a subpoena without showing how compliance would threaten the employers' normal business operations. See, e.g., Citicorp Diners, 985 F.2d at 1040 (holding that compliance would not be unduly burdensome where defendant, a company with only 17 nationwide facilities, submitted evidence that it would take two employees six months to interview employees and review personnel files, and stating that the defendant "has not offered any specific estimate of cost involved nor shown how compliance would impact the normal operations of" its business); Maryland Cup, 785 F.2d at 479 (rejecting defendant's argument of undue burden where the defendant contended that compliance would involve interviewing employees and would cost $75,000 and stating that the defendant "has not shown that the cost of gathering this information is unduly burdensome in [ ] light of the company's normal operating costs," or that "gathering the information would threaten its normal business operations") (citation omitted); Brown Transport, 620 F. Supp. at 654 (holding that the defendant, a company with 3,000 employees, had "not come close to sustaining its own burden on the issue of burdensomeness" where the defendant argued that it would take two employees two weeks to comply with the subpoena at a cost of approximately $5,000 but failed to offer any evidence or affidavits "showing compliance would threaten the normal operation of its business"). Although United submitted several affidavits estimating that it would take 5.5 employees working for a year to comply with the subpoena, United failed to show that it could not spare 5.5 of its 100,000 employees for a year (or an equivalent 275 employees for a week) without threatening the normal operation of its business. The affidavits submitted by United to support its rhetorical assertion of undue burden do not estimate the cost of complying with the subpoena or seek to establish why United cannot absorb that cost without threatening its business. See R. 9 (declarations of United employees). At oral argument in the district court, counsel for United frankly admitted that he did not even know the number of employees in United's human resources department. A-34. Having failed to supply even this basic information, and having failed to account for the fact that it is an enormous worldwide company with more than 100,000 employees, United's contention that "[t]he EEOC's subpoena unquestionably meets [the undue burden] standard as it is undisputed that it would take at least 5.5 employees working 2000 hours for an entire year" to comply with the subpoena amounts only to unpersuasive rhetoric. United Br. at 40 (emphasis added). The district court correctly rejected as "extraordinarily hollow" United's argument, which has been rejected by other courts, that it should be immune from the EEOC's subpoena simply because it is such a large employer. See, e.g., Brown Transport, 620 F. Supp. at 654 ("The mere size of Respondent's operations is no excuse for its refusal to give information relative to unfair labor practices.") (internal quotations and citation omitted). United also attempts to deflect attention from its failure to establish undue burden by stating that compliance would be "wholly unnecessary, particularly in light of the EEOC's lack of jurisdiction and the dubious and irrelevant nature of the EEOC's requests." United Br. at 42. This argument constitutes an improper attempt to rehash the arguments United already made with respect to relevancy and jurisdiction. Once the EEOC has made a threshold showing that the subpoena is relates to an investigation within its authority, seeks relevant information, and is not too indefinite, the subpoena must be enforced unless United shows that enforcing the subpoena would threaten its normal business operations. See Quad/Graphics, 63 F.3d at 645, 648. Because the agency's jurisdiction and the relevancy of the subpoena's requests must be established before the burdensomeness analysis is undertaken, this Court should decline United's request to weigh the burden of complying with the subpoena against the EEOC's jurisdiction and the relevancy of the information sought, which the EEOC has established. Finally, United appears to argue that the district court abused its discretion in enforcing the subpoena because during oral arguments the district court suggested that the EEOC and United engage in a collaborative approach to responding to the subpoena. See United Br. at 43- 44. The fact that the district court chose to enforce the subpoena without modification establishes that the district court found that United had simply failed to meet its burden of showing that compliance would disrupt its business operations and that there was therefore no need to modify the subpoena. See A-37 (stating that "I'm not persuaded that the subpoena is overburdensome."). Moreover, it was United–not the EEOC, and not the district court–who asked for a stay of the district court's order and insisted on immediately appealing the district court's decision to this Court, effectively rejecting the district court's invitation that the parties work together to come up with a pyramid approach to responding to the subpoena. CONCLUSION For the foregoing reasons, the Commission respectfully requests that this Court affirm the order of the district court enforcing the Commission's administrative subpoena. Respectfully submitted, PHILIP B. SKLOVER Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel ________________________ ANNE NOEL OCCHIALINO Attorney U.S. EQUAL EMPLOYMENT COMMISSION Office of General Counsel 1801 L Street, N.W., Rm. 7030 Washington, D.C. 20507 (202) 663-4724 August 27, 2001 CERTIFICATE OF COMPLIANCE I, Anne Noel Occhialino, hereby certify that this brief complies with the type-volume limitations imposed under Fed. R. App. P. 32(a)(7)(B). The brief contains 12,213 words. The disk submitted to the Court and counsel is virus-free. _______________________ Anne Noel Occhialino CERTIFICATE OF SERVICE I, Anne Noel Occhialino, hereby certify that I served two copies of the foregoing brief and one copy of the foregoing brief on digital media, this 27th day of August, 2001 by first-class mail, postage pre-paid, to the following: Joel H. Kaplan S. Leigh Jeter Seyfarth Shaw 55 East Monroe St., Suite 4200 Chicago, IL 60603-5803 _____________________ Anne Noel Occhialino Attorney U.S. EQUAL EMPLOYMENT COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7030 Washington, D.C. 20507 (202) 663-4724 *********************************************************************** <> <1> United argues that because the district court did not explicitly find that the documents sought by the subpoena are reasonably related to the EEOC’s legitimate purpose, and because the district court did not “provide any reasoning or analysis to support its conclusory findings on the issue of jurisdiction or burdensomeness . . . review under a deferential standard would be inappropriate.” United Br. at 19 n.6. United fails to cite a single authority to support this proposition. Moreover, the district court did provide reasoning to support its findings on the issues of jurisdiction and burdensomeness. See A-33, 34, 39 & 40. The district court’s reasoning is sufficient as it is consistent with the summary nature of agency subpoena enforcement actions. See EEOC v. Bay Shipbuilding, 668 F.2d 304, 310-11 (7th Cir. 1981). <2> United also cites a number of cases outside the subpoena enforcement context that rejected various claims of national origin discrimination on their merits. See United Br. at 21-25 (citing Espinoza v. Farah Mfg. Co., 414 U.S. 86, 94 (1973) (affirming grant of summary judgment in favor of defendant on Title VII claim); Fortino v. Quasar Co., 950 F.2d 389, 392-93 (7th Cir. 1991) (reversing entry of judgment in favor of plaintiffs on Title VII claim); Barnett v. Technology Intern, Inc., 1 F. Supp. 2d 572, 577 (E.D. Va. 1998) (granting summary judgment for defendant on Title VII claim); Weeks v. Samsung Heavy Indus. Co., 126 F.3d 926, 937 (7th Cir. 1997) (affirming grant of summary judgment for employer on Title VII claim); Fernandes-Middleton v. Air India, No. 89-0543, 1989 WL 222970, at *1 (D.D.C. Dec. 28, 1989) (granting motion to dismiss plaintiff’s complaint alleging discrimination in violation of Title VII); Damron v. Yellow Freight Sys., Inc., 18 F. Supp. 2d 812, 829 (E.D. Tenn. 1998) (granting summary judgment in favor of defendant on Title VII claim), aff’d, 188 F.3d 506 (6th Cir. 1999); EEOC. v. Switching Systems Div., 783 F. Supp. 369, 376 (N.D. Ill. 1992) (entering summary judgment in favor of defendant on Title VII claim); Vicedomini v. Alitalia Airlines, No. 2431, 1983 WL 616, at *4 (S.D.N.Y. Nov. 14, 1983) (entering findings of fact and conclusions of law in favor of defendant on Title VII claim); Novak v. World Bank, No. 79-0641, 1979 WL 225, at *1 (D.D.C. June 13, 1979) (motion to dismiss)). United’s reliance on these cases suggests that it has failed to grasp the established principle that in a subpoena enforcement action it is improper to raise jurisdictional defenses requiring a factual inquiry that involves application of the agency’s expertise. See Feldman, 532 F.3d at 1096. United urges this Court to accept its view of the ultimate merits of Droge’s Title VII claim when the existence or non-existence of such a claim is the very matter the EEOC seeks to establish through its investigation. <3> Inexplicably, United cites only to the district court opinion in this case. See United Br. at 20 (citing Martin v. Great Lakes Indian Fish & Wildlife Comm’n, 1992 WL 300841, at **5-10 (W.D. Wis. Oct. 7, 1992)). <4> In Karuk Tribe, the Ninth Circuit noted that “the inquiry into administrative subpoenas has been complicated by the fact that the words ‘coverage’ and ‘jurisdiction’ are sometimes used interchangeably, and often imprecisely.” Karuk Tribe, 2001 WL 902176, at *4 (citing Marshall v. Able Contractors, Inc., 573 F.2d 1055, 1056-57 (9th Cir. 1978) and Reich v. Great Lakes Indian Fish & Wildlife Comm’n, 4 F.3d 490, 491-92 (7th Cir. 1993)). As the Ninth Circuit explained, “[i]t is important to differentiate ‘coverage’ from ‘jurisdiction,’ because these two different sorts of challenges lead to different results: factual challenges based on a lack of statutory ‘coverage’ are clearly not permitted, see Endicott Johnson, 317 U.S. at 508-10; Okla. Press Publ’g, 327 U.S. at 214, while challenges based on ‘jurisdiction’ may, in certain circumstances, result in a refusal to enforce a subpoena, see Great Lakes, 4 F.3d at 491-92; Burlington Northern, 595 F.2d at 513.” Id. To use the Ninth Circuit’s terminology, United’s claim that Droge’s charge alleges citizenship discrimination, not national origin discrimination, raises a factual question based on a lack of “coverage” under Title VII, which is clearly not permitted as a defense to a subpoena enforcement action. Even if the issue of the basis of Droge’s complaint is characterized as a jurisdictional question, however, it is not one that can be resolved as a matter of law in this case. <5> Although the EEOC fully acknowledges that the Supreme Court has held that Title VII does not prohibit citizenship discrimination, the Court also stated that Title VII “prohibits discrimination on the basis of citizenship whenever it has the purpose or effect of discriminating on the basis of national origin.” Espinoza v. Farah Mfg. Co., Inc., 414 U.S. 86, 92 (1973). The Court’s observation leaves open the possibility that United’s deliberate discrimination on the basis of citizenship has the purpose or effect of discriminating on the basis of national origin. It is precisely that question (among others) the EEOC seeks to explore through the information it has sought in its subpoena. <6> United’s suggestion that the EEOC may have misled the district court in an attempt to “circumvent” the “citizenship” issue is unsupported by the record. See United Br. at 29-30. The EEOC never had any reason to attempt to “circumvent” this question, since it fully believes it is authorized to investigate Droge’s claims both of national origin and sex discrimination. The EEOC did not defend its drafting of the subpoena as a response to the sex discrimination charge, but simply argued that “because Ms. Droge has alleged that she was treated differently based on her sex in terms of the benefits that she’s received, the EEOC is trying to determine whether or not UAL policies have a disparate impact on females.” A-5. In response to United’s argument that “the original charge alleged national origin and only later did Ms. Droge allege sex discrimination,” counsel for the EEOC merely stated, “[t]he fact is, she did allege sex discrimination, and the EEOC does have authority to investigate it.” A-23. <7> The Commission has appealed this decision to the Fifth Circuit and does not endorse the reasoning of the district court. Nevertheless, the assumption that the EEOC cannot expand its investigation of a race discrimination charge into an investigation of gender discrimination when the employer’s records reflect possible gender discrimination in the promotion decisions challenged in the original charge, even if it were a correct statement of the law, would not support United’s position in this case. <8> It is important to note that Droge’s charge does not make mention of her position as a flight attendant, but rather refers to American employees in France, so there is nothing in the literal terms of the charge that justifies limiting the investigation to only flight attendants. <9> United incorrectly asserts that the EEOC’s counsel implied at oral argument in the district court that United had not provided the EEOC with a copy of the collective bargaining agreement or Summary Plan Description and that “[t]hese statements are either blatantly misleading or reflect the EEOC’s attorney’s inexcusable failure to review the investigation file.” United Br. at 35. The transcript of the hearing establishes that counsel for the EEOC did not imply that United had failed to provide the collective bargaining agreement between United and the AFA or the Summary Plan Description for flight attendants in France. A-27 to 28. Instead, counsel for the EEOC stated that without seeing the other contracts or collective bargaining agreements, the EEOC could not know whether Japanese employees were comparable to European employees or whether baggage handlers are comparable to flight attendants. A-27. <10> If the information sought in the subpoena is not within United’s control at all, United would, “of course . . . be excused pro tanto.” Bay Shipbuilding, 668 F.2d at 313 (citations omitted); see also 29 U.S.C. § 161 (1) (incorporated by reference in 42 U.S.C. § 2000e-9) (subpoenas may require “the production of any evidence in [the employer’s] possession or under [its] control”).