No.08-5348-cv ____________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT ____________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. UNITED PARCEL SERVICE, INC. Defendant-Appellee. _______________________________________________________ On Appeal from the United States District Court for the Western District of New York The Honorable William M. Skretny _______________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT _______________________________________________________ JAMES L. LEE Deputy General Counsel VINCENT BLACKWOOD Acting Associate General Counsel JULIE L. GANTZ Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel Appellate Services 131 M Street, NE, 5th Floor Washington, D.C. 20507 (202) 663-4718 julie.gantz@eeoc.gov TABLE OF CONTENTS TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii PRELIMINARY STATEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE ISSUE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 A. Course of Proceedings. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 B. Statement of the Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . 2 C. District Court's Decision. . . . . . . . . . . . . . . . . . . . . . . . . . 8 STANDARD OF REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 THE DISTRICT COURT ABUSED ITS DISCRETION IN REFUSING TO ENFORCE AN EEOC SUBPOENA THAT SEEKS INFORMATION RELEVANT TO THE INVESTIGATION OF TWO CHARGES OF DISCRIMINATION FILED UNDER TITLE VII. . . . . . . . . . . . . . . . . . . . . 11 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE TABLE OF AUTHORITIES CASES Am. Sav. Bank, FSB v. UBS Fin. Servs. Inc., 347 F.3d 436 (2d Cir. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Blue Bell Boots v. EEOC, 418 F.2d 355 (6th Cir. 1969). . . . . . . . . . . . . . 12 EEOC v. Children's Hosp. Med. Ctr., 719 F.2d 1426 (9th Cir. 1983). . . . . . 13, 19 EEOC v. Elrod, 674 F.2d 601 (7th Cir. 1982). . . . . . . . . . . . . . . . . . 12 EEOC v. Franklin & Marshall Coll., 775 F.2d 110 (3d Cir. 1985). . . . . . . . . 11 EEOC v. Karuk Tribe Hous. Auth., 260 F.3d 1071 (9th Cir. 2001). . . . . . . . . 19 EEOC v. Kidder Peabody, No. M18-304, 1992 WL 73344. at *4 (S.D.N.Y. Apr. 2, 1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 EEOC v. Outback Steakhouse, 520 F. Supp. 2d 1250 (D. Colo. 1997). . . . . . 16, 18 EEOC v. Packard Elec. Div., 569 F.2d 315 (5th Cir. 1978). . . . . . . . . . 16, 17 EEOC v. Roadway Express, 750 F.2d 40 (6th Cir. 1984). . . . . . . . . . . . 12, 14 EEOC v. Shell Oil Co., 466 U.S. 54 (1984). . . . . . . . . . . . . . . . . . 8, 12 EEOC v. S.C. Nat'l Bank, 562 F.2d 329 (4th Cir. 1977). . . . . . . . . . . . 14 EEOC v. Technocrest Sys., 448 F.3d 1035 (8th Cir. 2006). . . . . . . . . . . . 13 EEOC v. Tempel Steel, 814 F.2d 482 (7th Cir. 1987). . . . . . . . . . . . 14, 19 EEOC v. United Parcel Serv., 94 F.3d 314 (7th Cir. 1996). . . . . . . . . . . . 14 FTC v. Shaffner, 626 F.2d 32 (7th Cir. 1980). . . . . . . . . . . . . . . . . . 19 Graniteville Co. v. EEOC, 438 F.2d 32 (4th Cir. 1971). . . . . . . . . . . . . . 15 Ratliff v. David Polk & Wardwell, 354 F.3d 165 (2d Cir. 2003). . . . . . . . . 8 STATUTES Title VII of the Civil Rights Act of 1964 42 U.S.C. § 2000e-8(a). . . . . . . . . . . . . . . . . . . . . . . . 11 42 U.S.C. § 2000e-5(b). . . . . . . . . . . . . . . . . . . . . . . . 1 42 U.S.C. § 2000e-9. . . . . . . . . . . . . . . . . . . . . . . . 1, 2 28 U.S.C. § 1291. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 National Labor Relations Act 29 U.S.C. § 161. . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2 PRELIMINARY STATEMENT This is an appeal from a decision refusing to enforce an administrative subpoena rendered by Judge William M. Skretny. STATEMENT OF JURISDICTION The district court had jurisdiction to determine the enforceability of an administrative subpoena pursuant to §§ 706(b) and 710 of Title VII of the Civil Rights Act of 1964. 42 U.S.C. § 2000e-5(b) (requiring the EEOC to investigate charges of discrimination); 42 U.S.C. § 2000e-9 (granting to the EEOC the investigatory and subpoena powers of the National Labor Relations Board by incorporating Section 11 of the National Labor Relations Act, 29 U.S.C. § 161, which provides that the district courts have jurisdiction to determine the enforceability of an administrative subpoena). This Court has jurisdiction over this appeal from the district court's final order pursuant to 28 U.S.C. § 1291. The district court issued its order declining to enforce the subpoena on September 3, 2008. A-4. The Commission filed a timely notice of appeal on October 31, 2008. A-9. STATEMENT OF THE ISSUE Whether the district court's decision that the Commission's subpoena should not be enforced because it seeks information that is not relevant to the charges being investigated was an abuse of discretion. STATEMENT OF THE CASE A. Course of Proceedings This is a subpoena enforcement action pursuant to Section 710 of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-9, which incorporates by reference Section 11 of the National Labor Relations Act, 29 U.S.C. § 161. The Commission issued a subpoena on July 25, 2007, seeking information regarding the application of UPS's Appearance Guidelines in conjunction with the investigation of two charges of discrimination. A-54. On August 6, 2007, UPS filed a petition to revoke or modify the subpoena arguing that the information sought was not relevant to one of the charges and that the company had not received requests for information from the EEOC with respect to the other charge. See A-98-104. The Commission denied UPS's petition on August 24, 2007. A-62. The Commission initiated this action by filing an application seeking to enforce the subpoena on November 20, 2007. R.1. B. Statement of the Facts UPS's Uniform and Personal Appearance Guidelines prohibit employees in public contact positions at all UPS facilities from wearing any facial hair below the lower lip. A-127. Until 1999, employees who were unable to comply with the Appearance Guidelines because of religious objections were given "opportunities in non-public contact positions." A-241 (Oct. 15, 1999 UPS Memo). According to a UPS official, since 1999, any employee or applicant may request a variance from the Appearance Guidelines for religious reasons. A-214-15 (Owen Decl. ¶ 7). UPS's opposition to the EEOC's order to show cause states that an applicant or employee may receive an accommodation "if requested and if available." See R.9 (UPS Opp. at 4). According to an October 15, 1999, memo, UPS will allow an exemption from the Appearance Guidelines for religious reasons if the employee is "fully cooperative" and the requested exemption is "reasonable" and "not in great conflict" with the Guidelines. A-241. The memo states that another memo setting out a process for handling requests for accommodation will be forthcoming and that all requests for exemption from the Appearance Guidelines "will be handled in a consistent manner." Id. A memo was issued on January 15, 2002, describing the process to be used when an individual requests a religious accommodation and attaching a form to be used. A-270-272. According to this memo, the employee initiates the process by submitting "a request for a variance from company policy, based on a sincerely held religious belief" to his or her immediate supervisor or manager, who then is to forward the request to the district human resources manager, who, in turn, is to communicate the request to the district manager, district labor relations manager, and regional human resources manager. A-270. The regional human resources manager "will, if necessary, contact Corporate Workforce Planning, who will coordinate with all necessary corporate groups- Legal, Labor Relations, Procurement, etc.- to obtain a consistent answer." Id. According to the memo, the resolution is to come "in reverse order" from the regional human resources manager to the district human resources manager. Id. However, a UPS Corporate Workforce Planning Manager stated in a declaration that, "[i]n practice, the requests for accommodation are reviewed, and determinations made, on a case-by-case basis by the human resources staff at the UPS facility where the request is made." A-215 (Owen Decl. ¶ 7). On November 23, 2005, Bilal Abdullah, who is a practicing Muslim and wears a beard, interviewed with UPS's Rochester, New York, facility for the position of seasonal driver's helper and sorter. A-22 (Abdullah Charge). During his interview, Abdullah was informed that under the Appearance Guidelines he would have to shave his beard to work for UPS. Id. Abdullah told the interviewer that wearing a beard was part of his religion. Id. According to UPS, Abdullah was then told that other positions were available that did not require him to shave his beard. A-82 (Ryan Cert. ¶ 5). There is no evidence that Abdullah was told that he could request an exemption from the Appearance Guidelines as a religious accommodation. At his orientation on November 28, 2005, Abdullah was asked to complete a form stating that he would be "clean shaven." A-22 (Abdullah Charge). After he again stated that he could not shave his beard without violating his religious beliefs, Abdullah was told that he would not be hired and was logged out of UPS's computer system. Id. UPS asserts that Abdullah was coded ineligible for hire because he provided an inaccurate social security number, not because he refused to shave his beard. A-87 (Hilliard Cert. 10). Abdullah filed a charge with EEOC's Buffalo office on January 19, 2006, alleging religious discrimination. A-22. In the course of its investigation, the Buffalo office sent UPS a Request for Information seeking, inter alia, a copy of all documents related to UPS's Appearance Guidelines and a list of all jobs subject to the Appearance Guidelines; the names and identifying information for all applicants denied employment because of their refusal to comply with the Guidelines as of January 1, 2004; the names and identifying information of all employees who requested a religious accommodation based on the Appearance Guidelines as of January 1, 2004; and the names, identifying information, and circumstances of all employees whose employment was terminated for failing to comply with the Appearance Guidelines as of January 1, 2004. A-34-35. When UPS limited its response to its practices at the Rochester facility where Abdullah applied (A-38-44), the EEOC sent two follow-up requests for additional information, requesting that UPS include in its response information about UPS facilities nationwide. A-46; A-51-52. UPS continued to limit its response to the Rochester facility, stating that information about the application of its Appearance Guidelines beyond the Rochester facility was overly broad and unduly burdensome. A-51-52. UPS also asserted that it did not have the information sought in a centralized location. A-49. UPS stated that its human resources department has a computer code that may be assigned applicants who fail to complete the application process because of the Appearance Guidelines, but the code does not specify what aspect of the Guidelines was at issue, whether the applicant or employee requested an accommodation, whether an applicant withdrew his application or was refused hire, or whether an employee resigned or was terminated by UPS. A-48-49. UPS stated that it does not use a similar code for employee terminations. A-52. Muhammed Farhan, also a Muslim, worked as a part-time package handler for one of UPS's Dallas, Texas, facilities beginning in 2001. A-236 (Farhan Decl. ¶ 2). This position was in a warehouse without contact with the public, and Farhan did not wear a beard at the time. Id. (Farhan Decl. ¶¶ 2-3). In December 2006, Farhan bid on and obtained a full-time package car driver position. A-237 (Farhan Decl. ¶ 4). He successfully completed a two-week training program in February 2007. Id. However, when he showed up for work with a beard in April 2007, he was disqualified from the driver position and was demoted to a part-time package handler position. A-237-38 (Farhan Decl. ¶¶ 6-7). Farhan requested a religious accommodation from his direct supervisor and the local human resources office and specifically requested a variance form. A-237-38 (Farhan Decl. ¶¶ 6-7). According to Farhan, no one in that office knew of a variance form. A-237 (Farhan Decl. ¶ 7). Farhan next visited the regional human resources office in Mesquite, Texas; that office was similarly unaware there was a variance form it could provide to Farhan. Id. After filing a union grievance, Farhan returned to his job as part-time package handler. Id. On April 26, 2007, Farhan filed a charge with the Texas Workforce Commission, alleging, inter alia, that UPS "has a pattern or a practice of refusing to accommodate the religious observances, practices and beliefs of its employees." A-24 (Farhan Charge). On May 3 and again on June 12, 2007, the Commission's Buffalo office sent UPS written requests for a position statement with respect to Farhan's charge. A-31 (Notice of Charge and Request for Position Statement); A- 13 (Cadle Decl. ¶¶ i-j); A-65 (Determination at 4). UPS never responded. A-13 (Cadle Decl. ¶ j); A-65. UPS stated in its brief in district court that the company learned of Farhan's charge when it was served with the EEOC's order to show cause in this proceeding. R.9 (UPS Opp. at 10). On June 9, 2007, a UPS district manager informed Farhan that he could complete a form to request an accommodation for the full-time driver position. A-238 (Farhan Decl. ¶ 9). His request was granted later that month and he was reassigned to a driver position. A- 238 (Farhan Decl. ¶¶ 9-10). C. District Court's Decision The district court denied the EEOC's application to enforce the subpoena on September 3, 2008. The court issued a brief order concluding that the subpoena was overly broad. In explaining the legal standard for whether a subpoena is relevant to a particular charge, the court noted that courts have generously construed the term "relevant" information and given the EEOC "'access to virtually any material that might cast light on the allegations against the employer.'" A-7 (Decision & Order at 4 (quoting EEOC v. Shell Oil, 466 U.S. 54, 68-69 (1984))). Nonetheless, the district court held that the EEOC's subpoena requesting information regarding the application of UPS's grooming policy nationwide "is overly broad, and seeks information not relevant to the individual charges." Id. In the court's view, the Commission failed to demonstrate a connection between the charges being investigated and the information sought in the subpoena. Id. ("A nationwide search for information is not reasonable in light of the specific charges being investigated."). STANDARD OF REVIEW This Court reviews a district court's refusal to enforce a subpoena for an abuse of discretion. See, e.g., Ratliff v. David Polk & Wardwell, 354 F.3d 165, 168 (2d Cir. 2003); Am. Sav. Bank, FSB v. UBS Fin. Servs. Inc., 347 F.3d 436, 440 n.3 (2d Cir. 2003). SUMMARY OF ARGUMENT The district court abused its discretion in failing to enforce the Commission's subpoena, which requested information about the application of UPS's Appearance Guidelines throughout the country. The district court erroneously held that the Commission is entitled only to information related to the UPS facilities where the two charging parties applied or worked. On the contrary, the Commission has an adequate basis to inquire into whether UPS's company- wide policy regarding requests for exceptions from the Appearance Guidelines as a religious accommodation violates Title VII. The EEOC is empowered by statute to obtain any evidence "relevant to the charge under investigation." This relevancy requirement is generously construed. The Supreme Court has directed that the Commission may have access to virtually any material that might cast light on the allegations against the employer. The district court based its conclusion that the EEOC was not entitled to information about the Appearance Guidelines beyond the two facilities where the charging parties worked or applied for a job on the premise that information about decisions at other facilities was not relevant to the "individual" claims asserted in the charges under investigation. The court apparently overlooked the fact that one of the charges alleges, in addition to an individual claim, that UPS has a pattern and practice of denying religious accommodations to its employees. In any event, courts have consistently held that in investigating a charge of discrimination, the EEOC is not limited to obtaining information directly related to the individual allegations of the charge. This is particularly true where, as here, the charge involves a company policy that is applied in every one of its facilities throughout the country. Consequently, information about UPS's use of its policy throughout the country is relevant to the charges being investigated. In opposing enforcement of the subpoena below, UPS asserted that the charging parties were not placed in driver positions not because they wore beards but for non-discriminatory reasons. However, the merits of a charge of discrimination are not relevant to a subpoena enforcement proceeding. UPS will have an opportunity to raise a defense to the EEOC's claims of discrimination if and when the Commission files a lawsuit. UPS also argued below that the EEOC's investigation should be confined to the facilities where the charging parties applied or worked because decisions regarding religious exceptions from the Appearance Guidelines were made locally. However, the EEOC is not required to accept UPS's representation particularly where, as here there is already evidence in the record casting doubt on it. ARGUMENT I. THE DISTRICT COURT ABUSED ITS DISCRETION IN REFUSING TO ENFORCE AN EEOC SUBPOENA THAT SEEKS INFORMATION RELEVANT TO THE INVESTIGATION OF TWO CHARGES OF DISCRIMINATION FILED UNDER TITLE VII. The district court denied enforcement of an EEOC subpoena issued in the course of an investigation of two charges alleging that UPS failed to make reasonable accommodation to religious conflicts with its appearance standards. The district court held that the EEOC is entitled only to information related to the UPS facilities where the two charging parties applied or worked. The only reason the district court gave for refusing to enforce the subpoena is a conclusory statement that the subpoena "seeks information not relevant to the individual charges." A-7 (Dec. at 4). Congress granted the EEOC broad power to obtain access to any evidence that is "relevant to the charge under investigation." 42 U.S.C. § 2000e-8(a). "The concept of relevancy is construed broadly when a charge is in the investigatory stage." EEOC v. Franklin & Marshall Coll., 775 F.2d 110, 116 (3d Cir. 1985). As the district court noted, courts have consistently interpreted the relevancy standard for Title VII generously, allowing the EEOC "access to virtually any material that might cast light on the allegations against the employer." EEOC v. Shell Oil Co., 466 U.S. 54, 68-69 (1984); see also EEOC v. Elrod, 674 F.2d 601, 613 (7th Cir. 1982) (agency may seek any information that "touches a matter under investigation"). The district court appears to have relied on the fact that the subpoena was issued in conjunction with the investigation of "individual" charges of discrimination. This was erroneous. Courts have held repeatedly that the agency's investigation is not limited to the specific allegations of the charge under investigation. See, e.g., EEOC v. Roadway Express, 750 F.2d 40, 43 (6th Cir. 1984) (The "relevancy limitation does not, however, force the EEOC only to review evidence concerning the specific charge."); Blue Bell Boots v. EEOC, 418 F.2d 355, 358 (6th Cir. 1969) (information concerning "job classifications or hiring situations other than those of the complainants" is relevant to investigation of individual charges because it may show a pattern of race discrimination and may assist the EEOC in framing a remedy") (cited with approval in Shell Oil, 466 U.S. at 69 n.20)). Moreover, one of the charges under investigation in this case is not confined to an allegation of discrimination against the individual charging party, but includes an allegation that UPS has engaged in a general practice of denying religious accommodation to its employees' religious beliefs. A-24 (Farhan Charge). Given Farhan's broad allegation that UPS fails to accommodate its employees' religious beliefs, the information sought in the EEOC's subpoena is clearly relevant to the charges under investigation. See, e.g., EEOC v. Technocrest Sys., 448 F.3d 1035, 1039 (8th Cir. 2006) (district court did not abuse its discretion in enforcing a subpoena requesting personnel files from all employees where charging parties alleged individual discrimination and discrimination against Filipino employees as a class). Accordingly, the district court erred in denying enforcement of the subpoena on relevancy grounds. UPS argued in district court that the subpoena should not be enforced because neither of the charging parties was actually denied a reasonable accommodation. The company asserts that Abdullah was denied employment not because he wore a beard, but because he gave an incorrect Social Security number on his application, and that Farhan was granted a reasonable accommodation. R.9 (Opp. at 20). Both charges clearly allege that UPS failed to provide the charging parties with reasonable accommodation, and UPS's arguments go to the merits of those allegations. However, arguments regarding the merits of a charge cannot serve as a basis for preventing the EEOC from investigating. See EEOC v. Children's Hosp. Med. Ctr., 719 F.2d 1426, 1429 (9th Cir. 1983) (en banc) (EEOC's authority to investigate "is not abrogated because the party being investigated may have a valid defense to a subsequent suit by the agency"); see also EEOC v. S.C. Nat'l Bank, 562 F.2d 329, 332 (4th Cir. 1977) (claim that a charge was untimely could not be raised as a defense EEOC's subpoena enforcement action); EEOC v. Tempel Steel, 814 F.2d 482, 485 (7th Cir. 1987) (timeliness objection is not a proper defense to enforcement of a subpoena). "A district court should only examine the substance of the EEOC's underlying claim if the opposing party can show that there is no factual or legal support for the agency's preliminary determination to investigate." Roadway Express, 750 F.2d at 42. UPS will be free to raise such defenses if and when a suit is filed. See id. Furthermore, there is already evidence in the record that casts doubt on UPS's contention that the charging parties were not denied reasonable accommodation. Both Abdullah and Farhan were told that they could not drive while wearing a beard. A-22 (Abdullah Charge); A-237 (Farhan Decl.). Neither was told that he could request an exception from this policy for religious reasons. Id. And until 1999, UPS's practice was to offer non-public contact positions to employees who could not meet the Appearance Guidelines for religious reasons; no exemptions from the Guidelines were offered. See A-241 (Oct. 15, 1999 UPS Memo); see also EEOC v. United Parcel Serv., 94 F.3d 314, 315 (7th Cir. 1996) ("UPS . . . will not make exceptions to its no-beard policy for those with religious objections to shaving . . . ."). This provides sufficient basis for the EEOC to investigate whether UPS in practice offers an exemption from the no-beard policy for drivers with religious objections. The fact that Abdullah was told that the only option open to him was a lower-paying job and Farhan was initially transferred into such a job provides a more than adequate basis for the EEOC to investigate UPS's policies with respect to reasonable accommodations for persons who cannot comply with its appearance standards for religious reasons.<1> Although UPS would prefer that the EEOC investigate its contention that Abdullah was rejected for non-discriminatory reasons before we investigate its reasonable accommodation practices, it is the EEOC and not the company that decides how an investigation should proceed. Cf. Graniteville Co. v. EEOC, 438 F.2d 32, 36 (4th Cir. 1971) (requiring the EEOC to make a reasonable cause showing as a prerequisite to enforcement of the Commission's request for evidence issued in the course of an investigation "is not only to place the cart before the horse, but to substitute a different driver for the one appointed by Congress."). In addition, notwithstanding the company's ultimate decision to grant Farhan an exemption after he filed a charge of discrimination, he was still relegated to a lower-paying job for several months. If the EEOC concludes after an investigation that UPS had an obligation under Title VII to offer this exception as a reasonable accommodation, Farhan could be awarded back pay and damages. Thus, the company's belated accommodation cannot provide a basis for thwarting the EEOC's investigation. UPS also relied below on EEOC v. Packard Electric Division, 569 F.2d 315 (5th Cir. 1978), and EEOC v. Outback Steakhouse, 520 F. Supp. 2d 1250 (D. Colo. 1997), to support its argument that the charges at issue here cannot provide a basis for obtaining information about the company's practices beyond the facilities at which they worked or applied for work. These decisions are inapposite. Contrary to UPS's suggestion, Packard does not adopt a general rule that nationwide information may not be obtained in the investigation of individual charges. As noted supra, the courts have consistently held to the contrary that the EEOC is not limited by the specific allegations of a charge. Rather, Packard simply held that, under the circumstances of that case, the district court's refusal to enforce a subpoena requesting facility-wide data on each employee's race, sex, job classification, and other information in a subpoena based on charges that described "relatively narrow factual situations" was not clearly erroneous. See 569 F.2d at 316, 318. Even assuming Packard was correctly decided, the facts of this case are readily distinguishable. Unlike the charges in that case, which alleged individual discriminatory decisions, the charges here allege discrimination based on UPS policies that apply to all of the company's facilities throughout the country. The company's argument that an allegation that UPS unlawfully denied a request for a religious exception to the appearance standards challenges only an individualized decision of a single facility is inconsistent with the company's policies that expressly provide that requests for such exceptions are not to be decided at the local level. UPS asserted in district court that individual human resource managers at local UPS facilities make the decision whether to grant a religious accommodation on a case-by-case basis (see A-215 (Owen Decl. ¶ 7)), notwithstanding the fact that memos issued by the company state that requests for accommodation will be handled at a high level of UPS's organizational hierarchy in order to achieve consistent results. See A-241; A-270. This discrepancy provides an additional justification for the request for information about the use of these policies in order to permit the EEOC to ascertain whether UPS is complying with Title VII. See, e.g., EEOC v. Kidder Peabody, No. M18-304, 1992 WL 73344, at *4 (S.D.N.Y. Apr. 2, 1992) ("The EEOC, in exercising its broad investigatory power, is not limited to the particular unit where [the charging party] worked."). The other decision cited by UPS, Outback Steakhouse, is not a subpoena proceeding, but rather an EEOC enforcement action where the agency sought to bring claims for a nationwide class of female applicants and employees based on two charges of sex discrimination alleging a pattern of discrimination by a regional manager controlling a three-state region. The district court found that the defendant did not have adequate notice that the charges against it were nationwide because the EEOC's investigation was regional instead of nationwide and, accordingly, restricted the EEOC's suit to discrimination occurring in the three- state region. See Outback Steakhouse, 520 F. Supp. 2d at 1266. Thus, Outback Steakhouse does not support UPS's argument that the EEOC cannot obtain nationwide information during the investigation of these charges. To the contrary, it suggests that the agency may forfeit its right to bring a systemic challenge to a nationwide policy if it investigates too narrowly. See id. at 1266 n.3 ("Had the EEOC made a request for such national data prior to filing suit, my finding here might have been different."). The role of a district court in a subpoena enforcement action is "sharply limited" and, "[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." Tempel Steel, 814 F.2d at 485; see also EEOC v. Karuk Tribe Hous. Auth., 260 F.3d 1071, 1077 (9th Cir. 2001) ("unless jurisdiction is 'plainly lacking,' the court should enforce the subpoena"); Children's Hosp., 719 F.2d at 1428 ("[t]he scope of the judicial inquiry in an EEOC or any other agency subpoena enforcement proceeding is quite narrow"). Once this threshold showing has been made, a court can refuse to enforce a subpoena only if the respondent "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). CONCLUSION For the foregoing reasons, the judgment of the district court should be reversed and the case remanded for further proceedings. Respectfully submitted, JAMES L. LEE Deputy General Counsel VINCENT J. BLACKWOOD Acting Associate General Counsel ______________________________ JULIE L. GANTZ Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel Appellate Services 131 M Street, SE, 5th Floor Washington, D.C. 20507 (202) 663-4718 julie.gantz@eeoc.gov CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 4,303 words. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2003 in Times New Roman 14 point. Julie L. Gantz Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel Appellate Services 131 M Street, NE, 5th Floor Washington, D.C. 20507 (202) 663-4718 julie.gantz@eeoc.gov Dated: February 4, 2009 CERTIFICATE OF SERVICE I, Julie L. Gantz, hereby certify that I served two copies of the foregoing brief and one copy of the digital version of the brief this 4th day of February, 2009, by overnight mail to the following counsel of record: Wendy Johnson Lario Day Pitney LLP 200 Campus Drive Florham Park, NJ 07932 Julie L. Gantz Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel Appellate Services 131 M Street, NE, 5th Floor (202) 663-4718 julie.gantz@eeoc.gov *********************************************************************** <> <1> On March 27, 2006, the EEOC filed suit in district court in New Jersey based on a charge filed by Ronnis Mason, a Rastafarian whose religious beliefs dictated that he wear a beard to observe his religion, and who was denied an exemption from the Appearance Guidelines by UPS. A-230-34 (Complaint). The suit alleges that UPS violated Title VII when it required Mason to work in a position that did not require contact with the public and that paid less than the driver position he initially obtained. A-231-32. Trial began on January 22, 2009. See R.99 in EEOC v. UPS, No. 3:06-CV-01453 (D.N.J.). On January 29, 2009, the jury returned a verdict for the Commission finding that UPS denied Mason a reasonable accommodation in violation of Title VII. See R.119.