_______________________________________________________ No. 11-2869 _______________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Petitioner-Appellant, v. UPMC, Respondent-Appellee. _______________________________________________________ On Appeal from the United States District Court for the Western District of Pennsylvania _______________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT _______________________________________________________ P. DAVID LOPEZ General Counsel LORRAINE C. DAVIS Acting Associate General Counsel EQUAL EMPLOYMENT OPPORTUNITY COMMISSION VINCENT J. BLACKWOOD Office of General Counsel Assistant General Counsel 131 M St., NE, Room 5SW18K Washington, DC 20507 PAUL D. RAMSHAW Attorney (202) 663-4737 TABLE OF CONTENTS Table of Authorities ...................................................... iiii Statement of Jurisdiction......................................................1 Statement of the Issue ........................................................1 Statement of Related Cases and Proceedings ....................................2 Statement of the Case..........................................................2 Course of Proceedings..........................................................2 Statement of Facts ............................................................2 District Court Decision........................................................5 Standard of Review.............................................................7 Summary of Argument............................................................8 Argument.......................................................................9 Information Regarding Respondent's Application of Its Leave Policy Is Relevant in a Reasonable Investigation of a Charge Filed by a Former Employee Allegedly Terminated Pursuant to That Policy........................................... 9 Conclusion ...................................................................17 Certificate of Service .......................................................18 L.A.R. 31.1(c) Certificate ...................................................18 Certificate re Bar Membership.................................................18 Certificate of Compliance with Rule 32 .......................................19 TABLE OF AUTHORITIES FEDERAL CASES EEOC v. Astra, U.S.A, Inc., 94 F.3d 738 (1st Cir. 1996) ......................13 EEOC v. Cambridge Tile Manufacturing Co., 590 F.2d 205 (6th Cir. 1979)........13 EEOC v. Ford Motor Credit Co., 26 F.3d 44 (6th Cir. 1994) ....................14 EEOC v. Franklin & Marshall College, 775 F.2d 110 (3d Cir. 1985) ..............9 EEOC v. Kloster Cruise Ltd., 939 F.2d 920 (11th Cir. 1991)..................9, 11 EEOC v. Konica Minolta Business Solutions U.S.A., Inc., 639 F.3d 366 (7th Cir. 2011) ...........................................13, 14 EEOC v. Kronos Inc., 620 F.3d 287 (3d Cir. 2010)...........................passim EEOC v. Lockheed Martin Corp., 116 F.3d 110 (4th Cir. 1997) ...................12 EEOC v. Schwan's Home Serv., 644 F.3d 742 (8th Cir. 2011)......................13 EEOC v. Shell Oil Co., 466 U.S. 54 (1984) ...............................8, 9, 16 EEOC v. United Air Lines, Inc., 287 F.3d 643 (7th Cir. 2002)...................12 EEOC v. United Parcel Serv., Inc., 587 F.3d 136 (2d Cir. 2009) ........11, 12, 16 General Telephone Co. of the Northwest v. EEOC, 446 U.S. 318 (1980) ...........13 NRLB v. Frazier, 966 F.2d 812 (3d Cir. 1992) ...................................7 Newsome v. EEOC, 301 F.3d 227 (5th Cir. 2002)..................................12 FEDERAL STATUTES 28 U.S.C. § 1291................................................................1 28 U.S.C. § 1331................................................................1 28 U.S.C. § 1343(a)(4)......................................................... 1 28 U.S.C. § 1345................................................................1 42 U.S.C. § 12117(a) ........................................................1, 9 42 U.S.C. § 2000e-8(a) ......................................................9 42 U.S.C. § 2000e-9................................................................1 STATEMENT OF JURISDICTION This is a subpoena enforcement proceeding authorized by 42 U.S.C. §§ 12117(a) and 2000e-9, and the district court had subject matter jurisdiction under 28 U.S.C. §§ 1331 (federal question), 1343(a)(4) (civil rights action), and 1345 (federal agency as petitioner). This Court has appellate jurisdiction under 28 U.S.C. § 1291 because the decision being appealed resolved all claims as to all parties. The appeal is timely under the 60-day provision in Federal Rule of Appellate Procedure 4(a)(1)(B): the district court entered an order on May 24, 2011, denying the EEOC's motion to enforce its subpoena, 1 App-9 (R-13),<1> and the Commission filed a notice of appeal on July 7, 1 App-1 (R-14). STATEMENT OF THE ISSUE Whether the district court erred in ruling that information about the application of respondent's leave policy is not relevant to an investigation of a charge of discrimination filed by a former employee who was terminated pursuant to that policy. The EEOC argued that the information sought is relevant, R-2 at 5- 8; UPMC maintained that it is not relevant, R-7 at 7-12; and the Commission replied, R-11 at 3-4. STATEMENT OF RELATED CASES AND PROCEEDINGS I know of no related cases or proceedings. STATEMENT OF THE CASE Course of Proceedings This is an appeal from an order of the United States District Court for the Western District of Pennsylvania (McVerry, J.) denying enforcement of an administrative subpoena issued by the EEOC. The Commission filed an application for an order to show cause on April 21, 2011, seeking enforcement of its subpoena. 2 App-11-13 (R-1). UPMC opposed the motion, R-7, and on May 24 the district court entered an order declining to enforce the subpoena. 1 App-2-9 (R-13). The Commission filed a notice of appeal on July 7. 1 App-1 (R-14). Statement of Facts Carol Gailey began working for UPMC Heritage Place,<2> a senior care facility, in early April 2007 as a certified nursing assistant. 2 App-30 (UPMC's Position Statement). Between November 2007 and January 2008, UPMC allowed Gailey to take about 11 weeks of personal leave. 2 App-31. (She was not eligible for FMLA leave because she had not worked for UPMC long enough. 2 App-30.) She returned to work in early February 2008 in a light-duty, part-time capacity. 2 App-31. In late May, Gailey went out on leave again, this time for cancer surgery. Id. On June 21, the 14 weeks of leave that the company's personal-leave policy allows ran out. Id. Gailey did not return to work the next day, and UPMC terminated her employment, deeming her failure to return to work a voluntary resignation. Id. Gailey claims she first learned about her termination in mid-July, when she contacted the company about returning to work. 2 App-18 (Gailey's charge). Gailey completed an EEOC intake questionnaire on April 23, 2009, 2 App73-76, checking a box on the form to show that she wished to file a charge, 2 App 76. She filed a formal charge on June 17, 2009. 2 App-18. In the charge, Gailey stated that UPMC discriminated against her on the basis of her disability by terminating her while she was out on short-term-disability leave for major surgery without contacting her and warning her she faced termination. Id. In August 2009, UPMC submitted a position statement asserting that Gailey's termination was not discriminatory because it resulted from the neutral application of the company's policy governing personal leave. 2 App-15, ¶4.d (acting area director's declaration); 2 App-28-33 (UPMC's Position Statement). UPMC attached to its position statement copies of its policies addressing personal leave, short-term disability, and harassment. 2 App-34-56. UPMC's personal-leave policy grants employees who have worked at least six months for the company up to 14 weeks of personal leave. 2 App-39, ¶ III.A. This leave "may not be taken on an intermittent basis," id., and the employee "must return to work on the first scheduled workday following the expiration of the leave. . . . Failure to report to work on the next workday is considered a voluntary resignation." 2 App-40, ¶ III.K. The policy grants employees this personal leave in addition to any FMLA leave they are entitled to. 2 App-39, ¶ III.C. Thus, if an employee is eligible for FMLA leave, she can take 12 weeks of FMLA leave and then 14 weeks of personal leave, for a total of 26 weeks. Id. UPMC's policy governing short-term disability accordingly states: "If a staff member has been on a leave of absence for more than [26] weeks in a [12-]month period, the staff member will be . . . terminated from employment." 2 App-45. Neither the personal-leave policy nor the short-termdisability policy has a provision allowing an employee to seek leave longer than 14 or 26 weeks as a reasonable accommodation under the ADA. In April 2010, the Commission sent UPMC a request for information ("RFI") asking the company to identify each employee it had terminated pursuant to its personal-leave and short-term-disability policies since January 2008 in any of its facilities in the Pittsburgh region. 2 App-20-21. The EEOC also requested further information about each of these individuals, including Social Security number, job title and location, the date the leave began, the termination date, and the reason for the termination. Id. The RFI also sought comparable information for each employee who took more than 26 weeks of leave but was allowed to return to work. Id. In August, the EEOC investigator informed UPMC's lawyer that the Commission would limit its request to only some of UPMC's facilities. 2 App-15, ¶ f. The lawyer responded that UPMC would not comply in any way with the RFI. 2 App-15-16, ¶ f. UPMC failed to provide the requested information, and on September 1, 2010, the Commission issued a subpoena for the information. 2 App-16, ¶ g; 2 App-22-24. In mid-February 2011, the Commission denied UPMC's petition to revoke or modify the subpoena. 2 App-25. UPMC failed to comply with the subpoena, and on April 21, the Commission filed this subpoena enforcement action. 2 App-11-14 (R-1). District Court Decision The district court first set forth the governing legal principles, noting that, on the one hand, the EEOC "may obtain access to any material that 'might cast light' on the allegations against the employer," but that, on the other hand, the Commission "is entitled to access only evidence 'relevant to the charge under investigation,'" and "'[t]he relevance requirement is designed to cabin the EEOC's authority and prevent fishing expeditions.'" 1 App-6 (quoting EEOC v. Kronos Inc., 620 F.3d 287, 296-97 (3d Cir. 2010)). The court then ruled that "the [EEOC's] Subpoena constitutes an improper 'fishing expedition' that seeks information that is not relevant to [Gailey's] charge." 1 App-7. The court noted that once the Commission received copies of respondent's leave policies, which require terminating any employee who exhausts the leave that the policies provide, "the EEOC immediately turned the focus of its investigation away from the specifics of the Gailey charge and toward a much larger, corporate-wide issue." Id. "It is readily apparent," the court concluded, "that EEOC is interested in pursuing an investigation of UPMC's corporate policies." Id. The court noted that "the EEOC ha[d so far] done almost nothing to determine the specific facts of [Gailey's] discharge" by inquiring into, e.g., whether Gailey promised respondent she would return to work upon the expiration of her leave, whether she failed to request a reasonable accommodation, and whether she could have performed the essential functions of her position. 1 App-8. "These types of narrowly-tailored, potentially-dispositive inquiries," the court ruled, "should have been pursued before launching an inquiry into a tangential alleged systemic violation." Id. "Moreover," the court added, the "EEOC has failed to satisfactorily explain how the information requested in the Subpoena would 'cast light' on Gailey's claims," noting that the subpoena "does not even cover the time period of Gailey's employment." 1 App-8. "[T]here are numerous factual circumstances that are unique to Gailey," the court stated, and "the facts surrounding another person's termination would [accordingly] be of limited benefit to her claim." Id. Therefore, the court concluded, "the Subpoena at issue constitutes a 'fishing expedition' to discover the existence of other potential claimants rather than a reasonable effort to establish information that is relevant to Gailey's charge of discrimination." Id. STANDARD OF REVIEW This Court reviews a district court decision resolving a subpoena enforcement proceeding for an abuse of discretion. EEOC v. Kronos Inc., 620 F.3d 287, 295 (3d Cir. 2010). A district court abuses its discretion when it bases its decision on "a clearly erroneous finding of fact, an errant conclusion of law or an improper application of law to fact." Id. at 295-96 (citations and punctuation omitted). When this Court addresses the specific issue raised here-whether the information sought in the subpoena is relevant to the charge-this Court focuses on whether the district court applied the proper relevance standard, and that is a question of law, not a factual question, and it is therefore reviewed de novo. See, e.g., id. at 297 ("[t]he District Court applied too restrictive a standard of relevance . . . [and] erred in limiting the EEOC's access" to certain materials); cf. NRLB v. Frazier, 966 F.2d 812, 818 (3d Cir. 1992) ("we find that the district court did err in concluding that Frazier's testimony would be unrelated to the Board's proceedings"). SUMMARY OF ARGUMENT The district court erred by applying too restrictive a definition of the word "relevant." This Court has held that the EEOC may subpoena "'virtually any material that might cast light on the allegations against the employer.'" Kronos, 620 F.3d at 296 (quoting EEOC v. Shell Oil Co., 466 U.S. 54, 68-69 (1984)) (emphasis added). The district court accordingly erred in refusing enforcement because the Commission had not shown that the information it sought "would 'cast light' on Gailey's claim." 1 App-8 (emphasis added). Moreover, this Court held in Kronos that the EEOC "is not required to ignore facts that support additional claims of discrimination if it uncovers such evidence during the course of a reasonable investigation of the charge." Kronos, 620 F.3d at 297. The district court here therefore erred when it denied enforcement because it believed that the Commission is required to investigate the individual and idiosyncratic aspects of a charge before it can investigate the legality of a policy or widespread practice it learns of early in its investigation. ARGUMENT INFORMATION REGARDING RESPONDENT'S APPLICATION OF ITS LEAVE POLICY IS RELEVANT IN A REASONABLE INVESTIGATION OF A CHARGE FILED BY A FORMER EMPLOYEE ALLEGEDLY TERMINATED PURSUANT TO THAT POLICY. The ADA entitles the Commission to any information that is "relevant to the charge." 42 U.S.C. § 2000e-8(a).<3> This Court has held that "'virtually any material that might cast light on the allegations against the employer'" is relevant under this standard. Kronos, 620 F.3d at 296 (quoting Shell Oil, 466 U.S. at 68- 69). "'[T]he concept of relevancy is construed broadly when a charge is in the investigatory stage.'" Kronos, 620 F.3d at 299 (quoting EEOC v. Franklin & Marshall Coll., 775 F.2d 110, 116 (3d Cir. 1985)). A district court "must enforce the subpoena if the information sought there is 'not plainly incompetent or irrelevant to any lawful purpose' of the agency." EEOC v. Kloster Cruise Ltd., 939 F.2d 920, 922 (11th Cir. 1991). Although the district court purported to base its decision on a finding that the information sought is not relevant to a reasonable investigation of the Gailey charge, most of the court's analysis does not concern relevance at all. The bulk of the court's analysis addresses whether the Commission could-and should- resolve the charge on a narrow basis by inquiring into the specific circumstances of Gailey's termination before addressing the legality of the company's leave policy. R-13 at 6-7. This discussion does not address whether the subpoenaed information about the leave policy is relevant to the investigation, but focuses instead on whether there is some way to investigate the charge without considering the policy at all. It is only in the last, short paragraph of the court's analysis that there is any consideration of relevance. In that brief discussion, moreoever, the court applies an incorrect legal standard and all but concedes that the information is relevant under the correct standard. The court correctly states in the introduction to its analysis that the "EEOC may obtain access to any material that 'might cast light' on the allegations against the employer." 1 App-6 (quoting Kronos, 620 F.3d at 296) (emphasis added). However, in the paragraph discussing relevance several pages later, the court applies a much more demanding standard, requiring the Commission "to satisfactorily explain how the information requested in the Subpoena would 'cast light' on Gailey's claim." 1 App-8 (emphasis added). There is a significant difference between allowing the EEOC to subpoena any information that might cast light on Gailey's allegations and denying enforcement unless the Commission shows that the information sought would cast light on them. The burden that the district court placed on the EEOC is one it will rarely be able to carry. Here, as is typical, the Commission does not know what the documents and information it seeks will show.<4> Therefore, we cannot establish that the information "would" cast light on Gailey's allegations. Under the correct standard, the Commission must only show that the information "might" cast light on Gailey's allegations. The district court essentially conceded that this standard is met by stating that the information about the application of respondent's leave policy to others "would be of limited benefit to her claim." 1 App-8. In asserting that the information sought would be of only "limited benefit" to Gailey's claim, the court acknowledged that the information would be of some benefit to her claim. If the information sought would be of some benefit, the district court should have enforced the subpoena. See, e.g., Kloster Cruise, 939 F.2d at 922 (district court must enforce subpoena if information sought is not "plainly . . . irrelevant"). Insofar as the district court's decision is actually based not on relevance, but on the court's view that the Commission's investigation should have been pursued more narrowly, the court overstepped its limited role in subpoena enforcement proceedings. Courts have consistently recognized that a district court's role in a subpoena enforcement proceeding is quite limited. See, e.g., EEOC v. United Parcel Serv., Inc., 587 F.3d 136, 139 (2d Cir. 2009) (per curiam) ("the district court's 'role in a proceeding to enforce an administrative subpoena is extremely limited'") (hereafter, "UPS"); EEOC v. United Air Lines, Inc., 287 F.3d 643, 649 (7th Cir. 2002) ("Subpoena enforcement proceedings 'are designed to be summary in nature.' . . . The court has an oversight role, but it is limited.") (hereafter, "UAL"); EEOC v. Lockheed Martin Corp., 116 F.3d 110, 113 (4th Cir. 1997) ("Generally, a district court's role in enforcing administrative subpoenas is 'sharply limited.'"). A district court asked to enforce an administrative subpoena should limit its inquiry to whether the agency received a facially valid charge, whether the information sought is reasonably relevant to the charge, and, if the respondent raises the issue, whether compliance would be unduly burdensome. See, e.g., UPS, 587 F.3d at 139; UAL, 287 F.3d at 649; Lockheed Martin, 116 F.3d at 113. The EEOC has the authority to decide how to conduct its investigations, and district courts should not dictate the path those investigations take. See, e.g., Newsome v. EEOC, 301 F.3d 227, 231 (5th Cir. 2002) (district court properly rejected plaintiff's request for court order controlling EEOC's investigation, because "'the nature and extent of an EEOC investigation into a discrimination claim is a matter within the discretion of that agency'") (quoting EEOC v. Keco Indus., Inc., 748 F.2d 1097, 1100 (6th Cir.1984)). Moreover, the courts of appeals, including this Court, have specifically held that "[o]nce the EEOC begins an investigation, it is not required to ignore facts that support additional claims of discrimination if it uncovers such evidence during the course of a reasonable investigation of the charge." Kronos, 620 F.3d at 297; id. ("'Any violations that the EEOC ascertains in the course of a reasonable investigation of the charging party's complaint are actionable.'" (quoting Gen. Tel. Co. v. EEOC, 446 U.S. 318, 331 (1980))); EEOC v. Schwan's Home Serv., 644 F.3d 742, 748 (8th Cir. 2011) ("Because the EEOC's investigation into Milliren's charge of individual gender discrimination revealed potential systemic gender discrimination, the EEOC had the authority to subpoena information relevant to systemic gender discrimination even absent a valid systemic charge by Milliren."); EEOC v. Konica Minolta Bus. Solutions U.S.A., Inc., 639 F.3d 366, 369 (7th Cir. 2011) ("the EEOC is authorized to subpoena 'evidence concerning employment practices other than those specifically charged by complainants' in the course of its investigation"); EEOC v. Astra, U.S.A, Inc., 94 F.3d 738, 746 (1st Cir. 1996) ("[A] charge is capable of supporting an EEOC investigation into both the discrimination described in the charge itself and into the surrounding circumstances (including a full probing of any evidence of discriminatory practices unearthed during the course of the initial investigation)."); EEOC v. Cambridge Tile Mfg. Co., 590 F.2d 205, 206 (6th Cir. 1979) ("The powers granted to the EEOC under Title VII should not be narrowly interpreted, and we decline to hold that the EEOC is powerless to investigate a broader picture of discrimination which unfolds in the course of a reasonable investigation of a specific charge."). Courts have accordingly permitted the Commission to expand its investigation of a charge alleging discrimination against one person to address whether a class of employees suffered that type of discrimination, or a related type of discrimination. See, e.g., Konica Minolta, 639 F.3d at 367 (enforcing EEOC subpoena requesting information relating to the employer's hiring practices at all four of its Chicago-area facilities based on a charge alleging that the employer discriminated against an employee at one of those facilities in the terms and conditions of his employment and in discipline); EEOC v. Ford Motor Credit Co., 26 F.3d 44, 47-48 (6th Cir. 1994) (where charging party alleged she had repeatedly been denied promotions on the basis of sex, court enforced EEOC subpoena demanding substantial information on all 100 employees at unit going back almost four years before charge was filed). The Commission's authority to broaden the scope of its investigation beyond the particulars of an individual charge is particularly important in cases like this one, where the early stages of the agency's investigation reveal that the employer has a policy or a practice that affects many employees and may violate the relevant statute. This Court so held in Kronos. In that case, Vicky Sandy alleged in her charge that Kroger Food Stores had rejected her application to be a cashier/bagger/stocker because of her hearing and speech impairments. 620 F.3d at 292. The employer claimed in its position statement that it had rejected Sandy because of her poor performance during her interview and her low score on the Kronos assessment test that Kroger required its applicants to take. The EEOC issued a subpoena to Kronos, the test developer, seeking the user's manual for the assessment test, all relevant validation studies, any documents addressing the test's potential adverse impact, and all documents relating to the company's relationship with Kroger. The district court denied enforcement of the bulk of the subpoena, and this Court reversed. The district court had required Kronos to produce only those documents that related to the company's work for Kroger in West Virginia during an 18-month period and that related specifically to the positions that Sandy applied for. This Court held that the EEOC was entitled-without geographic limitation-to information that Kronos had that was relevant to the disparate impact of its assessment test on persons with disabilities or to the test's validity (i.e., job-relatedness), including information that happened to relate to Kronos customers other than Kroger. Id. at 297-98. It follows that the Commission had a right here to investigate UPMC's application of its personal-leave policy in all its Pittsburgh-area facilities. The Second Circuit's recent decision in EEOC v. United Parcel Service, Inc., 587 F.3d 136 (2009) (per curiam), is also directly on point. Two Muslim men from different states filed charges with the EEOC alleging religious discrimination by UPS. UPS rejected one man's application to work as a driver's helper and demoted the other from driver to package handler because they refused, on religious grounds, to shave their beards. The Commission subpoenaed extensive information about the company's no-beard policy, how the company applied it nationwide, and how the company responded to requests for religious accommodations. The district court denied enforcement of the subpoena, holding, much as the district court did here, "that the subpoena was overly broad and sought national information not relevant to the individual charges being investigated." Id. at 138. The Second Circuit reversed, holding, as this Court did in Kronos, that the district court "applied too restrictive a standard of relevance." Id. at 139. The court explained that "at the investigatory stage, the EEOC is not required to show that there is probable cause to believe that discrimination occurred or to produce evidence to establish a prima facie case of discrimination." Id. at 140. On the contrary, the EEOC "'may insist that the employer disgorge any evidence relevant to the allegations of discrimination contained in the charge, regardless of the strength of the evidentiary foundation for those allegations.'" Id. (quoting Shell Oil, 466 U.S. at 72). The district court here therefore erred in refusing to enforce the Commission's subpoena because it believed that the EEOC should have first investigated whether Gailey's charge established an individual violation of the statute. CONCLUSION Under Kronos, the documents the Commission sought in its subpoena here are clearly relevant to Gailey's charge, and we therefore respectfully urge this Court to vacate the district court's order and direct that court to enforce the Commission's subpoena in full. Respectfully submitted, P. DAVID LOPEZ General Counsel LORRAINE C. DAVIS Acting Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel s/ Paul D. Ramshaw PAUL D. RAMSHAW Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St., NE, Room 5SW18K Washington, DC 20507 (202) 663-4737 CERTIFICATE OF SERVICE I certify that John J. Myers, counsel for UPMC, is a filing user and will be served electronically by the notice of docket activity. s/ Paul D. Ramshaw September 14, 2011 L.A.R. 31.1(C) CERTIFICATE I certify that the text of the electronic version of this brief is identical to the text in the paper copies. I further certify that the electronic version of this brief has been scanned for viruses using Trend Micro OfficeScan version 10.5.1766 and no viruses were detected. s/ Paul D. Ramshaw September 14, 2011 CERTIFICATE RE BAR MEMBERSHIP I am representing an agency of the federal government and I am therefore not required to be a member of the bar of this Court. L.A.R. 28.3, comm. cmt. s/ Paul D. Ramshaw September 14, 2011 CERTIFICATE OF COMPLIANCE WITH RULE 32 This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because, after excluding the parts of the brief exempted by rule 32(a)(7)(B)(iii), it contains 3,812 words. It also complies with the typeface requirements of rule 32(a)(5) and the type-style requirements of rule 32(a)(6) because it uses 14-point Times New Roman, a proportionally spaced font. s/ Paul D. Ramshaw September 14, 2011 ********************************************************************************** <> <1> “1 App-9” refers to page App-9 of volume I of the appendix, which is appended to this brief. “R-13” refers to entry 13 on the district court docket sheet. <2> "UPMC" refers to the University of Pittsburgh Medical Center. UPMC Heritage Place is one of many facilities that UPMC operates in the Pittsburgh area. UPMC operates some facilities overseas, but most of its facilities are in the Pittsburgh region. 2 App-28 (UPMC's Position Statement). <3> Congress incorporated section 2000e-8 (and many other powers and procedures in Title VII) in the ADA. 42 U.S.C. § 12117(a). <4> Indeed, if the EEOC already possesses the information it subpoenas, that could be a ground for denying enforcement. See, e.g., EEOC v. United Parcel Serv., Inc., 587 F.3d 136, 139 (2d Cir. 2009) (per curiam) (requiring EEOC to show, in subpoena enforcement proceeding, "that the information sought is not already within [the agency's] possession")