____________________________________ 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 _________________________________________ REPLY BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION ___________________________________________________ P. DAVID LOPEZ General Counsel CAROLYN L. WHEELER Acting Associate General Counsel DANIEL T. VAIL Acting Assistant General Counsel PAUL D. RAMSHAW Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St., NE, Room 5SW18K Washington, DC 20507 (202) 663-4737 TABLE OF CONTENTS INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 A. Information about how UPMC implemented its leave policy is "relevant" to Gailey's charge. . . . . . . . . . . . . . . . . . . . . . . . .2 B. The EEOC's subpoena is not "unduly vague and overly broad.". . . . . 22 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Certificate of Service. . . . . . . . . . . . . . . . . . . . . . . . . . . 27 L.A.R. 31.1(c) Certificate. . . . . . . . . . . . . . . . . . . . . . . . 27 Certificate re Bar Membership. . . . . . . . . . . . . . . . . . . . . . . . 27 Certificate of Compliance with Rule 32. . . . . . . . . . . . . . . . . . 28 TABLE OF AUTHORITIES FEDERAL CASES Colwell v. Rite Aid Corp., 602 F.3d 495 (3d Cir. 2010). . . . . . . . . . . . 5 EEOC v. Astra U.S.A., Inc., 94 F.3d 738 (1st Cir. 1996). . . . . . . . . 17 EEOC v. Bay Shipbuilding Corp., 668 F.2d 304 (7th Cir. 1981). . . . . . 15-16 EEOC v. Cambridge Tile Manufacturing Co., 590 F.2d 205 (6th Cir. 1979). . . . . . . . . . . . . . . . . . . . . . . 17-18 EEOC v. City of Milwaukee, 54 F. Supp. 2d 885 (E.D. Wis. 1999). . . . . . . .22 EEOC v. Delight Wholesale Co., 973 F.2d 664 (8th Cir. 1992). . . . . . . . . 17 EEOC v. General Electric Co., 532 F.2d 359 (4th Cir. 1976). . . . . . . . . 21 EEOC v. Keco Industries, Inc., 748 F.2d 1097 (6th Cir. 1984). . . . . . . . .21 EEOC v. Konica Minolta Business Solutions U.S.A., Inc., 639 F.3d 366 (7th Cir. 2011). . . . . . . . . . . . . . . . . . 16-17, 19-20 EEOC v. Kronos Inc., 620 F.3d 287 (3d Cir. 2010). . . . . . . . . . . . passim EEOC v. Lutheran Soc. Services, 186 F.3d 959 (D.C. Cir. 1999). . . . . . . . 22 EEOC v. Recruit U.S.A., Inc., 939 F.2d 746 (9th Cir. 1991). . . . . . . . . 17 EEOC v. Schwan's Home Service, 644 F.3d 742 (8th Cir. 2011). . . . . . 18-19 EEOC v. Shell Oil Co., 466 U.S. 54 (1984). . . . . . . . . . . . . . .3, 15, 20 EEOC v. United Parcel Service, Inc., 587 F.3d 136 (2d Cir. 2009). . . . . 3, 20 EEOC v. United Parcel Service, Inc., 94 F.3d 314 (7th Cir. 1996). . . . . . 17 Federal Express Corp. v. Holowecki, 552 U.S. 389 (2008). . . . . . . . . . . 14 Garcia-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638 (1st Cir. 2000). . . .8 General Telephone Company of the Northwest, Inc. v. EEOC, 446 U.S. 318 (1980). . . . . . . . . . . . . . . . . . . . . . . . 9, 10, 18 Graves v. Finch Pruyn & Co., Inc., 457 F.3d 181 (2d Cir. 2006). . . . . . . . 5 Holender v. Mutual Industries North Inc., 527 F.3d 352 (3d Cir. 2008). . . 14 Taylor v. Phoenixville School District, 184 F.3d 296 (3d Cir. 1999). . . . . .4 University of Pennsylvania v. EEOC, 493 U.S. 182 (1990). . . . . . . . . . . 15 U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002). . . . . . . . . . . . 4, 8 Wiginton v. CB Richard Ellis, No. 02-6832, 2003 WL 21037874 (N.D. Ill. May 6, 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . 13 FEDERAL STATUTES AND REGULATIONS 42 U.S.C. § 12112(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 42 U.S.C. § 12112(b)(5)(A). . . . . . . . . . . . . . . . . . . . . . . . 4 42 U.S.C. § 12112(b)(6). . . . . . . . . . . . . . . . . . . . . . . . . . . 3 42 U.S.C. § 2000e-8(a). . . . . . . . . . . . . . . . . . . . . . . . . . . 3 29 C.F.R. § 1601.16(b). . . . . . . . . . . . . . . . . . . . . . . . . . . 22 29 C.F.R. § 1630.9(a). . . . . . . . . . . . . . . . . . . . . . . . . . . 4 29 C.F.R. Pt. 1630, App. § 1630.9. . . . . . . . . . . . . . . . . . . . . 4 29 C.F.R. Pt. 1630, App. § 1630.15(b) and (c). . . . . . . . . . . . . . . . .5 OTHER EEOC, Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, No. 915.002 (Oct. 17, 2002) 5-6, 13 INTRODUCTION Carol Gailey filed charging documents with the EEOC alleging that UPMC violated the ADA by terminating her while she was out on medical leave without warning her ahead of time or even notifying her of the termination after it occurred. 2 App-74, 18. In its position statement responding to Gailey's charge, UPMC claimed that Gailey's discharge was not discriminatory because it resulted from the neutral application of UPMC's Personal Leave of Absence Policy. 2 App-29, 31. That policy requires the company's managers to discharge an employee if she fails to return to work the day after her leave expires. 2 App-39-40. However, the ADA bars employers from discriminating against qualified individuals on the basis of their disabilities, including by using neutral policies that tend to screen them out, and by failing to provide them reasonable accommodations (absent undue hardship). In some situations an employer may be required to offer a qualified individual with a disability a limited amount of additional leave, perhaps unpaid leave, as a reasonable accommodation. Accordingly, the Commission was concerned that when UPMC applied its leave policy to Gailey, it could have violated the ADA by denying her continued employment or a reasonable accommodation. The EEOC further thought that UPMC's seemingly inflexible leave policy may have caused other ADA violations, since other employees subject to the same universally-applied policy might also have failure-to-accommodate claims against UPMC. The Commission's investigator accordingly asked UPMC to disclose identifying information for any other employees who were discharged as a result of the leave policy. UPMC refused to disclose this information, and the EEOC therefore issued the instant subpoena. The district court denied enforcement of the subpoena because it ruled that the information sought is not relevant to Gailey's charge. 1 App-7-8. In its response brief in this appeal, UPMC urges this Court to affirm on that basis. UPMC also argues that the district court's order denying enforcement can be affirmed on the alternative ground that the subpoena is unduly vague and overbroad. For the reasons stated in the EEOC's opening brief and in this brief, UPMC's arguments are unavailing, and this Court should reverse. ARGUMENT A. Information about how UPMC implemented its leave policy is "relevant" to Gailey's charge. UPMC concedes that the Commission is entitled to "any material that 'might cast light on the allegations against the employer.'" UPMC Br. at 10 (quoting EEOC v. Kronos Inc., 620 F.3d 287, 296 (3d Cir. 2010)). The EEOC in turn acknowledges that its investigative authority is not "'unconstrained,'" UPMC Br. at 11 (quoting Kronos, 620 F.3d at 297), and does not permit "'fishing expeditions,'" UPMC Br. at 11 (quoting EEOC v. United Air Lines, Inc., 287 F.3d 643, 653 (7th Cir. 2002)). That is, the Commission does not have the right to subpoena information that does not "relate to unlawful employment practices" and is not "relevant" to the charge at issue. See, e.g., 42 U.S.C. § 2000e-8(a); EEOC v. Shell Oil Co., 466 U.S. 54, 68 (1984) ("[T]he Commission is entitled to access only to evidence 'relevant' to the charge under investigation."). In this case, however, the district court erred in ruling - and UPMC is incorrect in arguing - that the information the EEOC sought in its subpoena is not relevant to Gailey's charge.<1> The ADA prohibits the use of standards or criteria that screen out or tend to screen out an individual with a disability or a "class of individuals" with disabilities unless the standard or criterion at issue is job-related for the position in question and consistent with business necessity. See 42 U.S.C. § 12112(b)(6). The ADA also requires employers (absent undue hardship) to provide a reasonable accommodation if a qualified individual with a disability needs the accommodation to perform the essential functions of his or her job or to enjoy equal employment opportunities. See 42 U.S.C. § 12112(a), (b)(5)(A); 29 C.F.R. § 1630.9(a); Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 306 (3d Cir. 1999) (so holding). Further, the Supreme Court has recognized that the ADA requires an employer to make reasonable accommodations even if doing so would require the employer to violate an otherwise universally-applied employment policy. U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 398 (2002) ("The simple fact that an accommodation would provide a 'preference' - in the sense that it would permit the worker with a disability to violate a rule that others must obey - cannot, in and of itself, automatically show that the accommodation is not 'reasonable.'") (emphasis omitted); id. at 397-98 (giving examples of neutral workplace rules that an employer may need to create exceptions to in order to comply with its duty to provide a reasonable accommodation). Moreover, one of the ADA's central principles is that an employer's decision whether to grant an accommodation should ordinarily take place after it engages in an interactive process with the employee to determine the employee's individual needs and whether a reasonable accommodation exists. See, e.g., 29 C.F.R. Pt. 1630, App. § 1630.9, "Process of Determining the Appropriate Reasonable Accommodation" (explaining that the employer and employee should engage in an interactive process to determine whether one or more reasonable accommodations would enable the employee to perform the essential functions of his or her position); Colwell v. Rite Aid Corp., 602 F.3d 495, 504 (3d Cir. 2010) (observing that reasonable accommodation "'includes the employer's reasonable efforts . . . to communicate with the employee in good faith'") (quoting Williams v. Phila. Hous. Auth. Police Dep't, 380 F.3d 751, 761 (3d Cir. 2004)); id. at 506- 08 (reversing summary judgment in part because reasonable jury could find that the employer "violated the duty to engage with good faith in the interactive process"). Often, after engaging in the interactive process, the employer and employee may come to the conclusion that additional medical leave (paid or unpaid) is the most suitable reasonable accommodation. See Graves v. Finch Pruyn & Co., Inc., 457 F.3d 181, 185 n.5 (2d Cir. 2006) (recognizing that the ADA may sometimes require an employer to grant additional leave, or unpaid leave, as a reasonable accommodation) (citing cases); see also 29 C.F.R. Pt. 1630, App. § 1630.15 (b) and (c): "Disparate Impact Defenses" (noting that "an employer, in spite of its 'no- leave' policy, may, in appropriate circumstances, have to consider the provision of leave to an employee with a disability as a reasonable accommodation, unless the provision of leave would impose an undue hardship"); EEOC, Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, No. 915.002, Question 17 (Oct. 17, 2002) (available at http://www.eeoc.gov/policy/docs/accommodation.html#leave) (hereinafter, "Guidance on Reasonable Accommodation") ("If an employee with a disability needs additional unpaid leave as a reasonable accommodation, the employer must modify its 'no-fault' leave policy to provide the employee with the additional leave, unless it can show that: (1) there is another effective accommodation that would enable the person to perform the essential functions of his/her position, or (2) granting additional leave would cause an undue hardship."). In light of these basic ADA principles requiring modification of restrictive policies and individualized assessment of possible accommodations, the information the EEOC subpoenaed plainly "relates to unlawful employment practices" under the ADA and is "relevant" to the allegations in Gailey's charging documents. Gailey alleged that she was terminated in violation of the ADA because UPMC discharged her in June 2008 without warning her she was about to be discharged or even notifying her promptly after discharging her. 2 App-18, 74. UPMC responded that it had discharged Gailey because its neutral personal-leave policy dictated that result. 2 App-29, 31. By responding to Gailey's charge this way, UPMC made information about its policy - including whether and how it applies it to others in its workplace - "relevant" to the resolution of Gailey's charge. If UPMC has a pattern of terminating employees whose leave expired without considering whether to offer limited additional leave (or other reasonable accommodations), resulting in ADA violations, that information provides a context for Gailey's individual claim (e.g., might cast light on UPMC's propensity to use its leave policies to screen out individuals with disabilities, or to deny necessary reasonable accommodations generally and thus, in Gailey's case, specifically). See EEOC v. Kronos Inc., 620 F.3d 287, 298 (3d Cir. 2010) ("The EEOC is entitled to information that 'may provide a useful context' for evaluating employment practices under investigation, in particular when such information constitutes comparison data."). Further, the information sought in the subpoena is relevant not only to Gailey's individual claim; it is also relevant to other potential ADA violations that the Commission is concerned may have occurred through UPMC's neutral application of its leave policy. After reviewing UPMC's personal-leave policy, EEOC staff suspected that the policy may have caused UPMC to violate the ADA. Such violations could include screening out and/or failing to accommodate otherwise-qualified individuals with disabilities by offering them limited additional medical leave. The policy does not appear to permit company supervisors or managers to engage in an individualized inquiry to determine if individuals subject to termination under the policy could be reasonably accommodated absent undue hardship. Indeed, the policy appears to forbid them from doing that. It contains no provision allowing, much less requiring, the company to consider granting its employees limited additional leave as a reasonable accommodation. Rather, the policy compels the managers to discharge any employee who fails to return to work when her leave expires - without pausing to consider whether the ADA requires the reasonable accommodation of a limited amount of additional leave. The policy thus may have led the company to violate the ADA. See Barnett, 535 U.S. at 398 (reasonable-accommodation duty may require employer to "permit the worker with a disability to violate a rule that others must obey"); Garcia-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638, 646 (1st Cir. 2000) ("The company's apparent position that the ADA can never impose an obligation on a company to grant an accommodation beyond the leave allowed under the company's own leave policy is flatly wrong under our precedent."). To be sure, Gailey did not allege in her charging documents that her co- workers were also being discriminated against by UPMC. But that does not prevent the Commission from investigating whether that was in fact happening, particularly when the employer responded to her individual charge by saying that her discharge was dictated by a policy that applied to all of the company's tens of thousands of employees. UPMC insists that evidence showing that other employees were terminated or denied reasonable accommodations cannot possibly be relevant to whether Gailey was denied an accommodation. UPMC Br. at 13- 14. This argument assumes that the decisions denying accommodations are independent of each other. But here the evidence suggests that if a number of employees have been denied reasonable accommodations, those decisions are not independent and unrelated. Rather, the decisions may well have been dictated by UPMC's personal-leave policy. It was therefore quite reasonable for the Commission to seek information about UPMC's treatment of all employees subject to the leave policy in question. Congress has charged the Commission with enforcing federal employment discriminations statutes in the public interest. See Gen. Tel. Co. of the N.W, Inc. v. EEOC, 446 U.S. 318, 326 (1980) ("Although the EEOC can secure specific relief . . . on behalf of [individual] discrimination victims, the agency is guided by 'the overriding public interest in equal employment opportunity . . . asserted through direct Federal enforcement.'") (citation omitted; first leaders added). Accordingly, when the agency receives a charge, it should investigate the charge in a way that furthers the public interest. If the Commission comes to suspect, while investigating an individual charge, that other persons may have been injured by the same type of violation, it is not required to ignore or overlook that information. Rather, it should investigate whether the employer is violating the statute with respect to other employees as well, and attempt to eliminate, to the extent possible, statutory violations similar to those alleged in the charge. Indeed, this Court recently reaffirmed that when the Commission is investigating a charge alleging an individual ADA claim, the agency "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 (citing Gen. Tel. Co., 446 U.S. at 331). "Rather," this Court held, "the EEOC has the power to investigate 'a broader picture of discrimination which unfolds in the course of a reasonable investigation of a specific charge.'" Id. (citation omitted). This case is remarkably similar to Kronos, where this Court reversed in part a district court's refusal to enforce an EEOC subpoena. In Kronos, Vicky Sandy filed a charge with the Commission alleging an individual claim of disability discrimination. She did not allege discrimination against other workers, nor did she mention the Kronos personality-assessment device that the Kroger grocery chain used in its hiring process. Kronos, 620 F.3d at 292, 299. Just so here, Gailey alleged an individual claim of disability discrimination. She did not allege discrimination against other workers, and she did not mention UPMC's personal- leave policy. In Kronos, the EEOC learned about the Kronos test in Kroger's position statement, which mentioned several times Sandy's low score on the test. Kronos, 620 F.3d at 293, 297-98 & n.5. The same thing happened here. UPMC informed the Commission in its position statement that: (a) UPMC had a personal-leave policy, 2 App-29, 39-44; (b) the policy was a UPMC policy, not merely a Heritage Shadyside policy, 2 App-29 (referring to "UPMC's Personal Leave of Absence Policy"), and it thus governed about 48,000 employees, 2 App-28; and (c) the policy contained no provision allowing - let alone requiring - UPMC managers to engage in an interactive process with employees whose leave was about to expire and decide whether a limited leave extension would reasonably accommodate the employee, 2 App-39-40. Thus, in each case a person submitted charging documents alleging an individual claim of disability discrimination. In each case the Commission, during its investigation of the charge, learned from the employer that it took the challenged adverse action at least in part because of a uniform test or policy (in Kronos, a test that the employer consistently used to assess applicants; here, a policy that governed all of UPMC's employees). In Kronos, the EEOC accordingly sought information about the validity of the test, and here the agency is seeking information about how UMPC applies its policy. In Kronos this Court required the district court to enforce the Commission's subpoena as originally written (insofar as it related to disability discrimination). 620 F.3d at 297-99. Likewise here, this Court should order the district court to enforce the EEOC's subpoena in full. In its brief as appellee, UPMC attempts to distinguish Kronos by arguing that Kronos enforced the EEOC's subpoena not to allow the agency to locate co- workers with "different kinds of claims," but to help the agency assess Sandy's individual claim. Here, UPMC contends, the information sought would not assist the EEOC in assessing Gailey's individual claim; its only purpose is to locate co- workers with different kinds of claims. UPMC Br. at 18. That is not true. As just explained, the information sought is relevant in assessing Gailey's individual claim and to a reasonable investigation into whether some of Gailey's co-workers have the same claim as she does (not a different type of claim altogether).<2> UPMC advances other arguments to bolster its view that the information in the subpoena is not "relevant" to Gailey's charge. For instance, UPMC maintains that Gailey did not actually allege in her charging documents that UPMC violated the ADA by failing to provide a reasonable accommodation. In particular, UPMC argues that Gailey's charging documents lack some of the allegations needed as a matter of law to establish a claim of failure-to-accommodate, and in fact contain allegations that undermine that claim. UPMC Br. at 16 & n.8. But Gailey stated in her charging documents that she was out on some kind of medical leave in June 2008 and that while she was out on leave, UPMC terminated her without warning or notifying her. In construing these allegations, the Commission readily and reasonably concluded Gailey might have a failure-to- accommodate claim. Her failure to use technical legal terms like "reasonable accommodation" or "failure to accommodate" does not prevent the EEOC from investigating that claim. See, e.g., Wiginton v. CB Richard Ellis, No. 02-6832, 2003 WL 21037874 (N.D. Ill. May 6, 2003) (charge need not contain "magic term" like "class action" to put employer on notice of class claim); cf. Guidance on Reasonable Accommodation, Question 1 ("To request accommodation, an individual may use 'plain English' and need not mention the ADA or use the phrase 'reasonable accommodation.'"). Nor is the EEOC precluded from investigating Gailey's failure-to- accommodate claim by her failure to allege in her charging documents all the facts necessary to establish the claim as a matter of law. As the Supreme Court and this Court have recently affirmed, the EEOC has a duty to construe "[d]ocuments filed by an employee . . . , to the extent consistent with permissible rules of interpretation, to protect the employee's rights and statutory remedies." Fed. Express Corp. v. Holowecki, 552 U.S. 389, 406 (2008); Holender v. Mutual Indus. N. Inc., 527 F.3d 352, 355 (3d Cir. 2008) (quoting this passage from Holowecki). Further, this Court also has held that a charging party - often, as here, a layperson apparently acting without retained counsel - is not required to articulate the theory of discrimination supporting her claim. Rather, "it is up to the EEOC, not [the charging party], to investigate whether and under what legal theories discrimination might have occurred." Kronos, 620 F.3d at 300. Moreover, the district court's ruling - and UPMC's contention - that her allegations actually undermine a failure-to-accommodate claim on the merits are simply wrong, as well as premature at this subpoena-enforcement stage. The district court ruled that "Gailey never requested an accommodation and that she could not have performed the essential job functions of the Certified Nursing Assistant position even with a reasonable accommodation," and then relied on those findings to deny enforcement of the subpoena. 1 App-7. Yet while Gailey alleged in her charge that she lived with a number of medical conditions, none of them apparently prevented her from working for UPMC for four months before taking leave for cancer surgery. Thus, this fact from her charging documents does not establish that she would not have been able - in June 2008 - to return to work in the near future. In addition to its attacks on the relevance of the information the EEOC seeks to the facts alleged in Gailey's charging documents, the company also argues that the Commission lacked authority to investigate a class or pattern-or-practice claim for three reasons. First, it contends the EEOC could not investigate a class claim at this point in its investigation because it had not yet determined that Gailey actually was denied a reasonable accommodation. UPMC Br. at 16. But, as explained in the Commission's opening brief, EEOC Br. at 12, a subpoena-enforcement proceeding may not be used to direct the path of a Commission investigation. Further, whether the Commission might ultimately find reasonable cause to believe there has been any violation at all is immaterial to assessing the enforceability of a subpoena. As the Supreme Court stated in EEOC v. Shell Oil Co., "any effort by [a district] court [in a subpoena enforcement proceeding] to assess the likelihood that the Commission would be able to prove the claims made in the charge would be reversible error." 466 U.S. 54, 72, n.26 (1984); see also Univ. of Pa. v. EEOC, 493 U.S. 182, 191 (1990) (explaining that a district court in subpoena enforcement action should address whether the information sought is relevant to the charge and should not address "'whether the charge of discrimination is "well founded" or "verifiable"'") (citation omitted); EEOC v. Bay Shipbuilding Corp., 668 F.2d 304, 312-13 (7th Cir. 1981) (The EEOC is not required to establish probable cause to suspect a violation before issuing a subpoena; "the whole purpose of [an] EEOC investigation is to determine whether probable cause exists."). UPMC propounds two additional reasons the EEOC allegedly lacks the authority to investigate the company's articulated defense (the leave policy) or a systemic (pattern-or-practice or class) claim here. UPMC contends that the Commission can never investigate a pattern-or-practice claim when the charge alleges only an individual claim. UPMC Br. at 13. It also contends the Commission cannot investigate such a claim unless a Commissioner of the EEOC has filed a charge. UPMC Br. at 12. UPMC understandably cites no case authority for these propositions - there is none. Even when the Commission is investigating a charge that explicitly alleges only an individual claim, most courts, including this one, have allowed the agency to investigate whether other employees were injured by the same type of discrimination. See, e.g., Kronos, 620 F.3d at 297 (EEOC "is not required to ignore facts that support additional claims of discrimination"); id. at 297-99 (permitting EEOC to subpoena extensive nationwide information about test at issue, even though the charge alleged only an individual claim); EEOC v. Konica Minolta Business 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") (internal quotation marks omitted); EEOC v. United Parcel Serv., Inc., 94 F.3d 314, 317-18 (7th Cir. 1996) (when EEOC receives charge alleging individual disability-discrimination claim, agency can investigate whether challenged policy affects a class of employees and sue on behalf of the class); 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. Delight Wholesale Co., 973 F.2d 664, 668 (8th Cir. 1992) ("The original charge is sufficient to support EEOC action, including a civil suit, for any discrimination stated in the charge or developed during a reasonable investigation of the charge . . . ."); EEOC v. Recruit U.S.A., Inc., 939 F.2d 746, 756 (9th Cir. 1991) (The EEOC "must be permitted to investigate the full picture of [a respondent's] practices" and "[w]e therefore decline the companies' invitation to straitjacket the EEOC into an artificially narrow survey of [information]."); 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."); cf. Gen. Tel. Co. 446 U.S. at 331 (stating that the EEOC can file a lawsuit to challenge "[a]ny violations that the EEOC ascertains in the course of a reasonable investigation of the charging party's [charge] . . . ."). UPMC maintains that other decisions the Commission relied on in its opening brief are distinguishable. For example, UPMC contends that the Eighth Circuit's decision in EEOC v. Schwan's Home Service, 644 F.3d 742 (8th Cir. 2011), should be distinguished because after filing a charge alleging only an individual claim, the charging party amended her charge to allege discrimination against other female employees as well. UPMC Br. at 19. Although the Eighth Circuit did hold that Schwan's amended charge supported the subpoena request at issue, it also held that "even if [the charging party's] systemic gender discrimination charge were invalid, the information sought in the subpoena is nonetheless within the scope of the EEOC's investigative authority." Schwan's, 644 F.3d at 748. The court noted that the Commission had uncovered evidence during its investigation of a systemic violation and stated that "the EEOC had the authority to subpoena information relevant to systemic gender discrimination even absent a valid systemic charge by [the charging party]." Id. (emphasis added). UPMC's distinction is therefore irrelevant to the proposition for which the EEOC cited the decision. Similarly, UPMC attempts to distinguish the Seventh Circuit's decision in Konica because the charging party there had "'alleged both a specific instance and . . . a pattern of race discrimination.'" UPMC Br. at 19 (quoting Konica, 639 F.3d at 369). However, in Konica, the individual charging party had alleged merely that "my Branch Manager has subjected me to different terms and conditions of employment[,]" that "I was disciplined for not meeting sales quotas, whereas a non-Black similarly situated co-worker was not disciplined for not meeting his quota[,]" and that "I was discharged." 639 F.3d at 367 (emphases added). Thus, the actual charge contained no systemic allegations of any kind. To be sure, the Seventh Circuit nevertheless construed this charge as alleging a "pattern of race discrimination." Id. at 369. But it apparently reached this conclusion because the individual charging party himself had suffered multiple acts of race discrimination. Id. (describing this "pattern" as the charging party's assertion "that he was treated differently from white co-workers in the 'terms and conditions' of his employment, and that he was unequally disciplined for not meeting a sales quota"). Similarly, in this case, the Commission has uncovered evidence that UPMC may be committing numerous violations of the ADA. As in Konica, this suggests a possible "pattern" of discrimination justifying the Commission's decision to expand its investigation and to subpoena relevant information accordingly. Indeed, as the Seventh Circuit succinctly put it (in ruling that information about practices not specifically alleged in the charge was nonetheless "relevant" to an investigation of that charge), the "Commission is entitled generally to investigate employers within its jurisdiction to see if there is a prohibited pattern or practice of discrimination." Id. So, too, here.<3> UPMC further argues that the EEOC lacked authority in this case to investigate a class or pattern-or-practice claim because no Commissioner filed a charge alleging such a claim. UPMC Br. at 12. But the Commission is not required to secure a Commissioner charge whenever it uncovers evidence of discrimination broader than that alleged in the original charge. See, e.g., Kronos, 620 F.3d at 300-02 (where EEOC received charge alleging individual claim, court allowed agency to investigate nationwide class claim without requiring agency to issue Commissioner charge); EEOC v. General Elec. Co., 532 F.2d 359, 364 (4th Cir. 1976) (holding that "[i]f the EEOC uncovers during that investigation facts which support a charge of another [type of] discrimination [other] than that in the filed charge, it is neither obliged to cast a blind eye over such discrimination nor to sever those facts and the discrimination so shown from the investigation in process and file a Commissioner's charge thereon, thereby beginning again a repetitive investigation of the same facts already developed in the ongoing investigation"); cf. EEOC v. Keco Indus., Inc., 748 F.2d 1097, 1101 (6th Cir. 1984) (holding that the EEOC did not have to start a new investigation to determine whether other employees suffered the same type of discrimination alleged by the individual charging party). In short, none of the reasons relied upon by the district court - or advanced by UPMC in its brief as appellee - support a finding that the EEOC's subpoena sought information that was not "relevant" to Gailey's charge. Accordingly, the district court's refusal to enforce the EEOC's subpoena should be reversed. B. The EEOC's subpoena is not "unduly vague and overly broad." UPMC argues alternatively that the Commission's subpoena is "unduly vague and overly broad" because it can be read to require more information than the agency "conceivably could have . . . intended" to demand or than the agency was "likely" looking for - e.g., information about employees fired for theft who happen to have taken maternity leave years before, or information about employees who have been on long-term-disability leave for years. UPMC Br. at 20-21. But this assertion stands as no bar to reversal of the district court's ruling. First, UPMC did not raise these specific objections in its petition to modify or revoke the subpoena filed with the EEOC. 2 App-66-69. This failure alone should preclude UPMC from now relying on vagueness or overbreadth as grounds for refusing to enforce the subpoena. See, e.g., EEOC v. Lutheran Soc. Servs., 186 F.3d 959, 964 (D.C. Cir. 1999) (the mandatory language in EEOC regulation 29 C.F.R. § 1601.16(b) "creates a strong presumption that issues parties fail to present to the agency will not be heard in court"); EEOC v. City of Milwaukee, 54 F. Supp. 2d 885, 891 (E.D. Wis. 1999) ("[A] person who has failed to exhaust his or her administrative remedies in challenging an EEOC subpoena generally is precluded from raising defenses to the judicial enforcement of the subpoena."). Second, the company is arguing that the subpoena is overbroad because if one reads it as broadly as possible, it asks for information that the EEOC probably does not really want. However, as the discussion above (and in the EEOC's opening brief) make plain, the Commission with its subpoena is seeking only information about persons who were fired pursuant to UPMC's leave policies (including its "voluntary quit" policy, UPMC Br. at 15). To be clear, the Commission is not seeking information about people fired for reasons, such as theft, wholly unrelated to the application of UPMC's leave policies. And despite its protestations to the contrary, UPMC is well-aware of the intended scope of the EEOC's request. See UPMC Br. at 15 ("Yet the subpoena seeks information on persons discharged after 14 weeks of any kind of medical leave.").<4> Third, UPMC contends that information relevant to UPMC's implementation of its personal-leave policy in its other facilities in western Pennsylvania is not relevant to Gailey's charge, which alleged discrimination only by "UPMC - Heritage Shadyside." UPMC Br. at 15. UPMC, however, defended its decision to discharge Gailey by relying on its personal-leave policy, and the policy states that it was issued not by Heritage Shadyside, but by UPMC. 2 App- 39. The policy therefore does not apply solely to Heritage Shadyside's 170 employees; it governs leave applications by all of UPMC's almost 50,000 employees. UPMC Br. at 5. Accordingly, the Commission was entitled to information about how UPMC implements the policy with respect to all its employees, not just its Heritage Shadyside employees. As explained at length above, information about UPMC's implementation of the policy across the company is relevant both to Gailey's individual claim and to a potential broader investigation involving other employees. Once again, under Kronos, UPMC's contentions are untenable. The district court in Kronos enforced the subpoena after greatly restricting its scope. The EEOC had subpoenaed a list and description of all the assessment devices Kronos offered; a user's manual for the test Kroger used; and all information Kronos had that related to whether the test was valid, to whether it had a disparate impact on persons with disabilities, to Kronos's relationship with Kroger and Kroger's use of the test (including the test-takers' results), and to job analyses for any positions at Kroger. Kronos, 620 F.3d at 294. The district court viewed this subpoena as "'breathtaking'" in its scope and required Kronos to comply only to the extent that the information the Commission sought related to Kronos's work for Kroger between January 2006 and May 2007,<5> in the state of West Virginia, and concerning the job positions of bagger, stocker, and/or cashier/checker. Kronos, 620 F.3d at 294-95. This Court reversed in relevant part, finding that even nationwide information was "relevant" to the individual charge at issue. Id. at 296. This Court found that the "District Court applied too restrictive a standard of relevance" and that the EEOC should not have been limited in obtaining the information it sought with respect to "geography, time, and job position." Id. at 297. The same should be true here. Finally, while arguing on the one hand that the subpoena is too broad, UPMC also argues that it is too narrow, because it seeks information about discharges that have occurred since July 1, 2008, rather than about discharges that occurred starting with the day Gailey was discharged. UPMC Br. at 14-15.<6> But the Commission is entitled to information about the application of UPMC leave policies not just to Gailey, but to UPMC's other employees. There is nothing in the record to suggest that as of July 1, 2008, UPMC was no longer using these leave policies. Thus, to the extent other employees have been discharged pursuant to the application of UPMC's leave policies on or after July 1, 2008, that is relevant to Gailey's charge. If anything, the fact that the EEOC asked for information about other employees affected over a shorter period (than that which UPMC thinks appropriate) militates in favor of enforcement of the subpoena. CONCLUSION For all these reasons, and for the reasons in the EEOC's opening brief, the EEOC respectfully requests that this Court reverse the district court's ruling below and remand with an order for the district court to enforce the subpoena. Respectfully submitted, P. DAVID LOPEZ General Counsel CAROLYN L. WHEELER Acting Associate General Counsel DANIEL T. VAIL Acting 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 November 7, 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 November 7, 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 November 7, 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 6,248 words (as counted by Microsoft Word 2003). 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 November 7, 2011 ********************************************************************************** <> <1> In its brief statement of the standard of review, UPMC fails to respond to our assertion that this Court views a district court's definition of relevance as a legal question and accordingly reviews it de novo. UPMC Br. at 9; EEOC Br. at 7-8. See EEOC v. United Parcel Serv., Inc., 587 F.3d 136, 142-43 (2d Cir. 2009) (Newman, J., concurring) ("[W]hen, as in this case, a district court fails to accord appropriate scope to an agency's legitimate demands for information, an appellate court is entitled to rule that the district court has committed an error of law."). <2> UPMC also argues that the Commission lacked authority in this case to investigate a possible broader pattern of discrimination because it had uncovered no new facts supporting such an investigation. UPMC Br. at 17-18. However, as already pointed out, this Court stated in Kronos 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." 620 F.3d at 297. UPMC suggests that this Court meant that the EEOC may investigate a new claim only when it has uncovered new evidence supporting it. Kronos did not say that. But even if Kronos meant the statement to be as restrictive as UPMC claims, the EEOC did not violate that rule in Kronos and it therefore did not violate it here. Here, just as in Kronos, the Commission did have new evidence supporting a broader investigation (UPMC's leave policy). And here, as in Kronos, that new evidence came from the employer's own position statement. See supra. <3> UPMC also protests the EEOC's reliance on EEOC v. United Parcel Service, Inc., 587 F.3d 136 (2d Cir. 2009), because in enforcing the Commission's subpoena in that case the Second Circuit relied in part on the fact that the charging party had alleged a pattern-or-practice violation. UPMC Br. at 18-19. The Commission relied on UPS for two purposes: first, for the proposition that a district court's role in a subpoena enforcement proceeding is "extremely limited," EEOC Br. at 11-12, and second, for the proposition that the EEOC can issue a broad subpoena for information relevant to the allegations in the charge even if the agency has not yet found reasonable cause or produced sufficient evidence to establish a prima facie case, EEOC Br. at 16. See UPS, 587 F.3d at 140 ("[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."). In support, the UPS court quoted Shell Oil as holding that 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). Neither of these propositions is undermined by the distinction that UPMC notes. <4> UPMC notes that "Gailey was discharged after 26 weeks on STD and another 14 weeks on PLOA, not after just 14 weeks on a PLOA." UPMC Br. at 15. But it does not explain why this renders the EEOC's subpoena overly vague or unduly broad. The EEOC's request is clear: The subpoena seeks information, as UPMC itself recognizes, "on persons discharged after 14 weeks of any kind of medical leave." Id. The fact that Gailey was discharged "under a policy that required an employee to report in after the end of a leave or be treated as a voluntary quit" - again, as UPMC acknowledges, UPMC Br. at 15 - only demonstrates the relevance of the EEOC's request. <5> The EEOC's subpoena had required information relevant to Kroger's use of the test starting from when Kroger began using the test. Kronos, 620 F.3d at 297. <6> The EEOC notes that employers often argue that a Commission subpoena seeks information about events that happened too long ago. In cases where the EEOC is challenging a policy currently in force, however, employers have rarely argued that it is improper for the Commission to seek information about how the policy has been implemented more recently (in this case, for only the most recent 26 months).