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 _______________________________________________________ REPLY BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION _______________________________________________________ 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 INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE TABLE OF AUTHORITIES CASES Blue Bell Boots v. EEOC, 418 F.2d 355 (6th Cir. 1969) . . . . . . . . . 8, 12 Cooter & Gell v. Hartmarx Corp., 496 U.S. 384 (1990) . . . . . . . . . . . .4 Dow Chem. Co. v. Allen, 672 F.2d 1262 (7th Cir. 1982) . . . . . . . . . . . 4 EEOC v. A.E. Staley Mfg. Co., 711 F.2d 780 (7th Cir. 1983) . . . . . . . . 11 EEOC v. Dillon Cos., 310 F.3d 1271, 1274-75 (10th Cir. 2002) . . . . . . 12 EEOC v. Kidder Peabody, No. M18-304, 1992 WL 73344 (S.D.N.Y.Apr. 2, 1992) 7, 12 EEOC v. Lutheran Soc. Servs., 186 F.3d 959 (D.C. Cir. 1999) . . . . . . . . 7 EEOC v. Packard Elec. Div., 569 F.2d 315 (5th Cir. 1978) . . . . . . . . . 3 EEOC v. Roadway Express, 750 F.2d 40 (6th Cir. 1984) . . . . . . . . . . . .8 EEOC v. Shell Oil Co., 466 U.S. 54 (1984) . . . . . . . . . . . . . . 11, 12 EEOC v. Technocrest Sys., 448 F.3d 1035 (8th Cir. 2006) . . . . . . . . .3, 8 Envtl. Prot. Agency v. Alyeska Pipeline Serv. Co., 836 F.2d 443, 445- 56 (9th Cir. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Joslin Dry Goods v. EEOC, 483 F.2d 178 (10th Cir. 1973) . . . . . . . . . 9 Nat'l Lab. Relations Bd. v. Am. Med. Resp., 438 F.3d 188 (2d Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 7 INTRODUCTION This is a subpoena enforcement action arising from the investigation of two charges of religious discrimination in which Muslim charging parties Bilal Abdullah and Muhammed Farhan allege they were denied employment opportunities with UPS because they could not comply with UPS's Appearance Guidelines without shaving their beards that they wore pursuant to their religious beliefs. The EEOC seeks company-wide information about the application of UPS's Appearance Guidelines, but UPS has provided only information related to the facility where one of the charging parties applied for employment. In our opening brief, we argued that the district court abused its discretion in denying enforcement of the EEOC's subpoena. We emphasized that the EEOC is empowered by statute to obtain any evidence "relevant to the charge under investigation." We pointed out that the Supreme Court has held that the EEOC may have access to virtually any material that might cast light on the allegations against the employer. We also pointed out that 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, particularly where, as here, the charge involves a company policy that is applied in every one of its facilities throughout the country. Finally, we noted that there are a number of circumstances that justify a broader investigation of UPS's accommodation practices, including the fact that neither charging party was told that he could request an accommodation, and the fact that one of the charging parties alleged that UPS has a general practice of not accommodating individuals who cannot comply with its appearance standards because of their religious beliefs. In its brief as appellee, UPS, rather than replying to the arguments in our opening brief, distorts our position. According to UPS, we argue that we are always entitled to any information we request regardless of whether it is relevant to the specific allegations of the charge under investigation. Although UPS states that it agrees with us that the EEOC has the authority to demand information beyond the specific allegations of a charge, it articulates a standard that would never permit that result. We submit this reply to refocus this appeal on the arguments actually advanced by the EEOC to support our position that the company-wide information we seek is relevant to the charges under the broad standard of relevancy applicable to this subpoena enforcement proceeding. ARGUMENT 1. Initially, UPS challenges the Commission's assertion that a district court's refusal to enforce an administrative subpoena is reviewed for abuse of discretion rather than under the "clearly erroneous" standard. UPS br. at 14 (citing cases). In our opening brief, we rely on two decisions of this Court stating that a district court decision involving a subpoena issued under Federal Rule Civil Procedure 45 is reviewed for abuse of discretion. EEOC br. at 8-9. UPS relies on National Labor Relations Board v. American Medical Response, 438 F.3d 188, 193 (2d Cir. 2006), in which this Court, in reviewing a decision relating to an agency subpoena, stated that a court of appeals should "affirm a district court's finding of relevancy unless that determination is clearly erroneous." Although UPS criticizes us for relying on a case involving a subpoena issued under Rule 45(b), it cites no authority for the proposition that the standard of review is different, and we are aware of no cases so holding. On the contrary, courts have consistently held that "an EEOC investigative subpoena for documents is subject to the same standards as any other subpoena for documents under Fed. R. Civ. P. 45(b)." EEOC v. Packard Elec. Div., 569 F.2d 315, 317 (5th Cir. 1978) (citing New Orleans Pub. Serv., Inc. v. Brown, 507 F.2d 160, 165 (5th Cir. 1975)); see also EEOC v. Technocrest Sys., 448 F.3d 1035, 1038 (8th Cir. 2006) (citing to Pointer v. DART, 417 F.3d 819, 821 (8th Cir. 2005), a case regarding the quashing of a subpoena pursuant to Rule 45, in support of use of the "abuse of discretion" standard in review of an EEOC subpoena). There is some variation in the courts about how to characterize a district court's decision regarding the relevance of information sought in a subpoena. See, e.g., Packard Elec., 569 F.2d at 317-18 ("The 'relevance' of documents in an administrative proceeding is a mixed question of law and fact, which implies that our standard of review should look either to 'legal error' or to 'clear error' depending on the circumstances."); Envtl. Prot. Agency v. Alyeska Pipeline Serv. Co., 836 F.2d 443, 445-56 (9th Cir. 1988) (whether evidence is relevant and material to the investigation is one critical question in test to determine when a court should enforce administrative investigative subpoenas; the court's decision regarding enforcement of the subpoena is a question of law reviewed de novo). The important point, however, is that it makes no practical difference which standard is applied. As the Supreme Court has stated, "When an appellate court reviews a district court's factual findings, the abuse-of-discretion and clearly erroneous standards are indistinguishable: A court of appeals would be justified in concluding that a district court had abused its discretion in making a factual finding only if the finding were clearly erroneous." Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 401 (1990) (discussing appropriate standard for review of a district court's decision to impose Rule 11 sanctions). As detailed below, the Commission should prevail in this appeal under either standard-the district court's conclusion that the nationwide information sought is not relevant to Abdullah's and Farhan's charges is clearly wrong and, accordingly, its refusal to enforce the EEOC's subpoena on relevance grounds constitutes an abuse of discretion. See Dow Chem. Co. v. Allen, 672 F.2d 1262, 1267 (7th Cir. 1982) ("A finding by the district court that documents are reasonably relevant to a legitimate agency purpose cannot be overturned absent a showing that the factual determination on which it is based are clearly erroneous or that the ruling itself constitutes an abuse of discretion.") (internal citations omitted). 2. According to UPS, "the EEOC attempts to make the outrageous argument that, because ten years ago UPS did not have a formal mechanism for providing religious exemption from its Appearance Guidelines, it can today utilize that fact as a 'sufficient basis for the EEOC to investigate' on a company-wide basis." UPS br. at 26-27 (quoting EEOC br. at 14) (emphasis in original). A reading of the cited page of the EEOC's brief is sufficient to demonstrate that this is a gross distortion of the Commission's argument. We have never argued that UPS's former policy of denying exceptions from its Appearance Guidelines for any reason is alone sufficient to justify a nation-wide investigation of the company's practices. Instead, we argued that that was one of a number of factors justifying an inquiry into whether the discrimination alleged in Farhan's and Abdullah's charges reflects a widespread problem at UPS. We cited the following additional factors: both Abdullah and Farhan were told that they could not drive while wearing a beard; notwithstanding UPS's written policy, neither was told that he could request an exception from this policy for religious reasons; the company's policies expressly provide that requests for such exceptions are not to be decided at the local level; we were aware of three instances in three different states where individuals alleged that they were not offered religious exceptions.<1> See EEOC br. at 14-15, 17. UPS never responds to the argument that these factors considered together with the company's history of refusing to consider exceptions even for religious reasons justify a company-wide inquiry to see whether there is evidence that UPS still effectively has a policy of denying religious exceptions to the Appearance Guidelines. Instead, UPS criticizes several of these factors in isolation and completely ignores others. Significantly, the company offers no response to the evidence that at least three individuals in three different states were rejected for driving positions without being told that they could request a religious exception, but were instead advised to apply for lower paying jobs. This evidence is inconsistent with UPS's strenuous efforts to characterize the charges as involving individualized decisions by different managers about whether reasonable accommodation was possible in specific cases. See UPS br. at 25-26, 28. Rather it suggests that UPS managers may in practice still adhere to the company's former policy of not considering any requests for exceptions from the Appearance Guidelines. This suggestion is reinforced by UPS's repeated characterization of its current policy as permitting reasonable accommodation of drivers with religious objections to the no-beard policy "if available." See UPS br. at 6. Use of the word "available" suggests that the policy may be referring to accommodation by assignment to another job rather than by granting an exception to the Appearance Guidelines. We do not disagree with UPS's assertion that the courts, not the Commission, decide what information is relevant to the investigation of a charge. See UPS Br. at 19. However, this Court has squarely held that an agency's views on the relevancy of the information it seeks in an investigation are entitled to deference in a subpoena enforcement proceeding. See Am. Med. Response, 438 F.3d at 193 ("The district court defers to 'the agency's appraisal of relevancy, which must be accepted so long as it is not obviously wrong.'"); see also EEOC v. Lutheran Soc. Servs., 186 F.3d 959, 966 (D.C. Cir. 1999) (quoting Director, Office of Thrift Supervision v. Vinson & Elkins, LLP, 124 F.3d 1304, 1307 (D.C. Cir. 1997)) (an agency's determination of relevance deserves deference because "'[t]he scope of the investigation . . . is very much dependent on the agency's interpretation and administration of its authorizing substantive legislation'"). We argued that the breadth of our investigatory power allows us to investigate matters beyond the specific allegations of a charge. See EEOC Br. at 12-13; see also EEOC v. Kidder Peabody, No. M18-304, 1992 WL 73344, at *3 (S.D.N.Y. Apr. 2, 1992) (stating, in response to an employer's protest that the EEOC was expanding its investigation beyond the boundaries of a particular unit where the charging party worked, that "[t]hose are difficult arguments to sustain, given the breadth of the subpoena power conferred by Congress upon administrative agencies"). We cited Blue Bell Boots v. EEOC, 418 F.2d 355, 358 (6th Cir. 1969); EEOC v. Roadway Express, 750 F.2d 40, 43 (6th Cir. 1984); and EEOC v. Technocrest Systems, 448 F.3d 1035, 1039 (8th Cir. 2006), for the proposition that courts have allowed the Commission access to employer records that relate to issues beyond the specific allegations of the charge, such as workplace information outside of the charging party's position or workplace. See EEOC Br. at 12-13. UPS argues these cases are inapposite because they involved allegations of race or national origin discrimination where, the company asserts, a pattern of discriminatory action by the employer might be relevant. According to UPS, "harassment and discrimination" cases have "different and broader evidentiary requirements than failure to accommodate claims, which by their very nature are specific and individualized-and determined on a case-by-case basis." UPS Br. at 2; see also id. at 20 (religious accommodation charges such as the ones being investigated here present only narrow factual inquiries). UPS's assertion that the analysis of a religious accommodation charge is necessarily limited to "the interaction between the employer and the complaining employees" is inaccurate, particularly where, as here, there are indications that UPS may have a company- wide policy or practice of refusing to consider religious exceptions to its Appearance Guidelines. UPS also notes that Blue Bell Boots involved the investigation of seven charges and Technocrest six, whereas this case involves only "two isolated charges relating to specific and individualized instances of failure to accommodate." UPS Br. at 22. UPS characterizes "two employees out of hundreds of thousands" as "needles in the haystack" and believes that the Commission is on a "witch hunt." UPS br. at 25, 27. However, the question of whether an investigation broader than the individual allegations in a charge is appropriate does not depend on the number of charges. What is required is information giving rise to a suspicion that a more systemic pattern of discrimination is afoot. In Blue Bell Boots and Technocrest, six or seven charges of race or national origin in a particular workplace or job category suggested a pattern of discrimination by the employer; no company-wide policy was at issue. Where, as here, the charges' allegations relate to a company- wide policy, a broader investigation is warranted. See Joslin Dry Goods Co. v. EEOC, 483 F.2d 178, 184 (10th Cir. 1973) (limiting the Commission's demand for documents to the store where the charging party worked because "[i]t was not shown that there were any hiring or firing practices and procedures applicable to all of the stores"). 3. In our opening brief, we also argued that, insofar as the district court's relevancy ruling was based on its finding that the charges under investigation contained only individualized allegations of discrimination, it was an abuse of discretion because Muhammed Farhan's charge includes an allegation that UPS has engaged in a general practice of denying religious accommodation to its employees. EEOC Br. at 12-13. UPS overstates the EEOC's reliance on Farhan's pattern and practice allegation as a basis for the nationwide information sought. UPS Br. at 23. We have never argued that the EEOC's justification for company- wide information depends on Farhan's pattern and practice allegation. We argued that Farhan's pattern and practice claim was one of several factors justifying nationwide discovery about UPS's Appearance Guidelines, not the sole justification as UPS suggests. See UPS Br. at 23 (stating that the EEOC recognized it would be unable to obtain nationwide information based on Abdullah's charge alone and "appended Farhan's un-investigated charge to the Subpoena attempting to paint a more pervasive picture"). The Commission has argued and continues to argue that it would be entitled to the company-wide information sought even without the pattern or practice statement in Farhan's charge. UPS also loses sight of the fact that "a charge of employment discrimination is not the equivalent of a complaint initiating a lawsuit." EEOC v. Shell Oil Co., 466 U.S. 54, 68 (1984). The purpose of the EEOC's investigation is to determine whether there is reasonable cause to believe that UPS has violated Title VII's religious accommodation provision, and, if so, to attempt to resolve the violation. See EEOC v. A.E. Staley Mfg. Co., 711 F.2d 780, 783 (7th Cir. 1983) ("In many instances, the purpose of the EEOC investigation is to determine whether probable cause does in fact exist."). In order to accomplish this, the EEOC must determine the scope of the company's religious accommodation problems, if any. So far we know that at least three individuals in three different states have experienced similar difficulty in obtaining exemptions to the appearance guidelines. Nationwide discovery will shed light on whether Farhan's, Abdullah's, and Mason's experiences were isolated incidents or part of a larger, more systemic problem with the company's policies. The process for investigating Farhan's and Abdullah's charges has not yet become adversarial. See Shell Oil, 466 U.S. at 68 ("Only if the Commission, on the basis of information collected during its investigation, determines that there is 'reasonable cause' to believe that the employer had engaged in an unlawful employment practice, does the matter assume the form of an adversary proceeding."). Although UPS continues to suggest that Abdullah's and Farhan's allegations are meritless (UPS Br. at 16), at the investigatory stage, we are not required to make a probable cause finding that discrimination has occurred or produce evidence that would establish a prima facie case of discrimination. See Kidder Peabody, 1992 WL 73344, at *3 ("The violation need be no more than 'possible' to justify investigation, since as noted probable cause need not be shown."); EEOC v. Dillon Cos., 310 F.3d 1271, 1274-75 (10th Cir. 2002) (EEOC investigative subpoenas "'may be enforced for investigative purposes unless they are plainly incompetent or irrelevant to any lawful purpose.'"). Under Title VII, "the Commission 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." Shell Oil, 466 U.S. at 72. UPS argues that whether an employee in Kansas or California was offered a religious accommodation is irrelevant to whether Abdullah or Farhan were offered accommodations. UPS Br. at 28. On the contrary, if individuals in Kansas and/or California suffered the same type of discrimination as Abdullah, Farhan, and Mason, it suggests that UPS has a systemic problem that could necessitate company-wide reform of its policies. Accordingly, nationwide discovery is relevant in terms of framing a potential recovery, even when relief is sought for individuals. See Blue Bell Boots, 418 F.2d at 358 ("[T]he Commission may, in the public interest, provide relief which goes beyond the limited interests of the charging parties."). Thus the Commission has already obtained some evidence that broad reform of UPS's policies may ultimately be necessary. 4. UPS argues that the Commission should be "estopped" from obtaining company-wide information based on Farhan's charge because the EEOC has not explained why Farhan filed his charge in New York when he lives and works in Texas. UPS Br. at 18 n.2, 23, 24 n.3. However, UPS offers no rationale for its argument other than sheer speculation that this was somehow orchestrated by the Commission to bolster this subpoena enforcement action. This makes no sense since the Commission could rely on the fact that Farhan filed a charge with similar allegations to Abdullah's even if Farhan's charge had been filed in Texas.<2> UPS also asserts that "the human resources staff and management" at its Dallas facility were not aware of Farhan's charge until after the subpoena was issued. See UPS Br. at 13. UPS does not dispute that Farhan filed a charge with the EEOC and that notice of the charge was sent to UPS. Accordingly, any lack of knowledge on behalf of UPS personnel in Dallas is not the fault of the EEOC and cannot serve as a basis for ignoring Farhan's charge.<3> UPS also complains that Farhan's charge was never investigated. UPS Br. at 13. Because UPS's counsel represented UPS in the New Jersey litigation, she is aware that Farhan was interviewed and signed a sworn, detailed declaration in the New Jersey case. This declaration was attached to the EEOC's reply brief in the subpoena enforcement proceedings below and is part of the record in this case. See A-235. Based on the information we have thus far, both Farhan's and Abdullah's charges support a nationwide investigation of UPS's appearance policies. The Commission has been unable to investigate Farhan's charge fully because UPS has failed to comply with the EEOC's subpoena. The Commission may wait to investigate Farhan's individual allegations after it has conducted nationwide discovery. There is no statutory mandate that the Commission investigate a charge's individual claims before it investigates a pattern and practice claim. CONCLUSION For the reasons stated in the Commission's opening brief and this reply, the judgment of the district court should be reversed and the district court should be instructed to enforce the EEOC's subpoena. 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, NE, 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 3,533 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: March 23, 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 23rd day of March, 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> UPS never acknowledges the existence of the New Jersey litigation in which the Commission obtained relief for Ronnis Mason after the case was tried in January 2009. Mason is a Rastafarian whose religious beliefs dictated that he wear a beard and who was not offered an exemption from UPS's Appearance Guidelines. That case reinforced the Commission's suspicion that UPS was potentially running afoul of Title VII in administering its Appearance Guidelines and exemption policies. See EEOC br. at 15 n.1. <2> Furthermore, Farhan's choice to file his charge in New York is not suspicious. The EEOC's New York office had filed a Title VII suit against UPS in the district court in New Jersey on March 27, 2006, based on Ronnis Mason's charge alleging that UPS failed to accommodate his religious beliefs. See A-230-34. Information about this lawsuit was posted on the EEOC's web site and publicly available. If Farhan were looking for assistance with his difficulty in being hired as a driver by UPS, the Commission's web site would be a logical resource and could have led him to the New York District Office litigating the case in New Jersey District Court. <3> Additionally, there is no doubt that counsel representing UPS in this proceeding knew about Farhan's allegations before the subpoena was served because he was a witness in the EEOC's New Jersey case where she represented UPS. Farhan's declaration of July 16, 2007, submitted to the court and to counsel, states that he filed a charge of discrimination with the EEOC in April 2007. A-238 (Farhan Decl.¶ 8). In that declaration, in addition to setting out the chronology of his attempts to receive an exemption from the Appearance Guidelines, Farhan states "I am concerned that UPS has similarly failed to accommodate the practice of other Muslim applicants and employees who have requested an accommodation so that they continue to wear their beards as an important part of the practice of their religion." A-239 (Farhan Decl.¶ 10).