The Equal Employment Opportunity Commission (EEOC or Commission) believes that oral argument would assist this Court in deciding the issues on appeal in this subpoena enforcement action under the Americans with Disabilities Act. Oral argument will aid this Court in understanding the statutory framework and judicial precedent that governs the EEOC’s administrative investigations of charges, including the EEOC’s statutory right of access to relevant information during its investigations and the “generous” standard of relevance that the Supreme Court and this Court apply. The EEOC further believes that oral argument would assist this Court in understanding why the district court’s Order conflicts with this legal framework.

Page

TABLE OF CITATIONS. iv

STATEMENT OF JURISDICTION.. 1

STATEMENT OF THE ISSUES. 1

PERTINENT STATUTORY AND REGULATORY PROVISIONS. 2

STATEMENT OF THE CASE. 2

A. Course of Proceedings and Disposition in the Court Below 2

B. Statutory Framework. 3

C. Statement of Facts. 5

D. District Court Decision. 10

E. Standard of Review.. 12

SUMMARY OF THE ARGUMENT. 13

ARGUMENT 15

The District Court Abused Its Discretion When It Failed to Order ENA to Provide Nationwide Information. 15

A. The district court abused its discretion by misreading this Commissioner charge as directed only at ENA’s Northport facility. 16

B. Nationwide information is relevant to the EEOC’s investigation, even if the charge is directed only at the Northport facility. 22

CONCLUSION.. 32

ADDENDUM

CERTIFICATE OF COMPLIANCE

TABLE OF CITATIONS

Cases Page

Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981).................. 18

Dixon v. Ashcroft, 392 F.3d 212 (6th Cir. 2004).................................... 18

EEOC v. A.E. Staley Mfg. Co., 711 F.2d 780 (7th Cir. 1983)........... 23, 32

EEOC v. All. Residential Co., 866 F. Supp. 2d 636 (W.D. Tex. 2011)... 31

EEOC v. Bass Pro Outdoor World, L.L.C., 826 F.3d 791 (5th Cir. 2016)......................................................................................................... 12, 18

EEOC v. Cambridge Tile Mfg. Co., 590 F.2d 205 (6th Cir. 1979).......... 15

EEOC v. Kloster Cruise Ltd., 939 F.2d 920 (11th Cir. 1991)................. 15

* EEOC v. Konica Minolta Bus. Sols. U.S.A., Inc.,

639 F.3d 366 (7th Cir. 2011).................................................. 13, 16

* EEOC v. Kronos Inc., 620 F.3d 287 (3d Cir. 2010)...................... 26, 27

* EEOC v. Randstad, 685 F.3d 433 (4th Cir. 2012)................... 12, 29, 30

EEOC v. Roadway Exp., Inc., 261 F.3d 634 (6th Cir. 2001)....... 16, 30, 31

* EEOC v. Shell Oil Co., 466 U.S. 54 (1984)............... 3, 4, 5, 10, passim

EEOC v. Superior Temp. Servs., Inc., 56 F.3d 441 (2d Cir. 1995).... 12, 18

EEOC v. Tire Kingdom, Inc., 80 F.3d 449 (11th Cir. 1996)................... 15

EEOC v. UPMC, 471 F. App’x 96 (3d Cir. 2012).................................. 27

* EEOC v. United Parcel Serv., Inc., 587 F.3d 136 (2d Cir. 2009)........ 30

EEOC v. United Parcel Serv., Inc., 859 F.3d 375 (6th Cir. 2017)..... 23, 32

Holly v. Clairson Indus., L.L.C., 492 F.3d 1247 (11th Cir. 2007)........... 28

* McLane Co. v. EEOC, 137 S. Ct. 1159 (2017)................ 4, 5, 12, 15, 23

Sanchez v. Standard Brands, Inc., 431 F.2d 455 (5th Cir. 1970)............ 18

* SEC v. Marin, 982 F.3d 1341 (11th Cir. 2020)................. 12, 23, 24, 32

Smith v. Cheyenne Ret. Invs. L.P., 904 F.3d 1159 (10th Cir. 2018)........ 13

Univ. of Pa. v. EEOC, 493 U.S. 182 (1990)........................................... 15

Statutes

28 U.S.C. § 1291...................................................................................... 1

29 U.S.C. § 161.................................................................................... 1, 4

29 U.S.C. §§ 161(1), (2)........................................................................... 5

Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.

42 U.S.C. § 2000e-5.............................................................................. 3

42 U.S.C. § 2000e-5(b).................................................. 4, 11, 18, 20, 25

42 U.S.C. § 2000e-5(f)(3)..................................................................... 1

42 U.S.C. § 2000e-8.............................................................................. 3

42 U.S.C. § 2000e-8(a).................................................................... 4, 23

42 U.S.C. § 2000e-9.................................................................. 1, 3, 4, 5

Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101 et seq....... 1

42 U.S.C. § 12101(b)(1)........................................................................ 3

42 U.S.C. § 12101(b)(3)........................................................................ 3

42 U.S.C. § 12111(9)(B)..................................................................... 28

42 U.S.C. § 12112(a)....................................................................... 3, 28

42 U.S.C. § 12112(b)(5)(A)............................................................ 3, 28

42 U.S.C. § 12117(a)......................................................................... 1, 3

Regulations

29 C.F.R. §§ 1601.12(a)-(b)............................................................. 18, 19

29 C.F.R. § 1601.12(a)(2)...................................................................... 20

29 C.F.R. § 1601.12(a)(3)...................................................................... 20

Rules

Fed. R. App. P. 4(a)(1)(B)(ii)................................................................... 1

Miscellaneous

EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, No. 915.002 (Oct. 17, 2002)................................................................................................ 28

White v. Eberspacher North America, Civ. No. 7:21-cv-1229 (N.D. Ala.)................................................................................................................. 5

STATEMENT OF jurisdiction

This is an action by the Equal Employment Opportunity Commission (EEOC or Commission) seeking enforcement of an administrative subpoena issued to Eberspaecher North America, Inc. (ENA) under the Americans with Disabilities Act of 1990, as amended (ADA), 42 U.S.C. §§ 12101 et seq. The district court had subject-matter jurisdiction pursuant to 42 U.S.C. § 12117(a), which incorporates 42 U.S.C. §§ 2000e-5(f)(3) and 2000e-9, the latter of which incorporates 29 U.S.C. § 161. The district court’s August 30, 2021, Order partially enforcing the EEOC’s subpoena is a final order. R.19.[1] The EEOC filed a timely notice of appeal on October 28, 2021. R.21; see Fed. R. App. P. 4(a)(1)(B)(ii). This Court has jurisdiction under 28 U.S.C. § 1291.

STATEMENT OF THE ISSUES

1. Did the district court abuse its discretion by limiting the EEOC’s subpoena to a single facility when the Commissioner charge broadly alleges, based on a review of ENA’s “practices and the employee handbook,” that ENA is violating the ADA by disciplining and terminating employees for absences directly correlated to their disability?

2. Assuming arguendo that the Commissioner charge was directed at only one ENA facility, did the district court abuse its discretion by holding that nationwide information is irrelevant to the EEOC’s investigation of potential discrimination at that facility?

PERTINENT STATUTORY and regulatory PROVISIONS

Pertinent statutory and regulatory provisions are reproduced in the addendum to this brief.

STATEMENT OF THE CASE

A. Course of Proceedings and Disposition in the Court Below

On July 30, 2019, an EEOC Commissioner filed a charge alleging that ENA was violating the ADA “by discriminating against employees on the basis of disability with respect to qualified leave.” R.1-2 (Charge). The EEOC commenced an investigation and asked ENA for information about employees at any of its United States facilities who had been disciplined or discharged in connection with taking leave. R.1-3; R.1-4. When ENA questioned the geographic scope of the request, the EEOC explained that this was a companywide investigation. R.1-5 at p. 1; R.1-6. ENA nevertheless refused to produce nationwide information (producing some employee information, but only for its facility located in Northport, Alabama, whose address had appeared at the top of the Commissioner charge). R.1-5; R.6-3 at p. 34; R.6-19. The EEOC then issued an administrative subpoena requesting the specified information. R.1-16. When ENA refused to comply with the subpoena, the EEOC applied to the district court for an order to show cause why the subpoena should not be enforced. R.1.

The district court issued a decision enforcing the subpoena in part but limiting it to the Northport facility. R.19. The EEOC appealed. R.21.

B. Statutory Framework

Congress enacted the ADA to create a “comprehensive national mandate” for eliminating “discrimination against individuals with disabilities” and “to ensure that the Federal Government plays a central role in enforcing the standards established [in the ADA] on behalf of individuals with disabilities.” 42 U.S.C.
§§ 12101(b)(1), (3). The statute prohibits covered entities from “discriminat[ing] against a qualified individual on the basis of disability” in specified employment practices. Id. § 12112(a). And the ADA provides that such prohibited discrimination includes, in certain circumstances, “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability.” Id. § 12112(b)(5)(A).

To enforce the ADA’s workplace protections, Congress incorporated “[t]he powers, remedies, and procedures” of Title VII of the Civil Rights Act of 1964. 42 U.S.C. § 12117(a) (incorporating, as relevant here, 42 U.S.C. §§ 2000e-5, 2000e-8, and 2000e-9). Thus, the “integrated, multistep enforcement procedure” Congress established to “enable[]” the EEOC to “detect and remedy instances of discrimination” under Title VII also applies to the ADA. See EEOC v. Shell Oil Co., 466 U.S. 54, 62 (1984) (citation omitted). That enforcement procedure begins with the filing of an administrative “charge” alleging discrimination. 42 U.S.C. § 2000e-5(b). The charge may be filed by or on behalf of a person claiming to be aggrieved, or by an EEOC Commissioner. See id.

Once the EEOC receives a charge, the EEOC “shall serve a notice of the charge … on [the] employer” and “shall make an investigation thereof” to determine if “there is reasonable cause to believe that the charge is true.” 42 U.S.C. § 2000e-5(b). “In connection with any investigation of a charge,” the EEOC “shall at all reasonable times have access to … any evidence” that “relates to unlawful employment practices covered by [the ADA] and is relevant to the charge under investigation.” Id. § 2000e-8(a). Relevance, in this context, is construed “generously” to “afford[] the Commission access to virtually any material that might cast light on the allegations against the employer.” Shell Oil, 466 U.S. at 63, 68-69.

If an employer refuses to provide the EEOC with information the agency seeks as part of an investigation, the EEOC may issue an administrative subpoena. 42 U.S.C. § 2000e-9 (incorporating 29 U.S.C. § 161); McLane Co. v. EEOC, 137 S. Ct. 1159, 1164-65 & n.1 (2017) (noting that Title VII confers on the EEOC “the same authority given to the National Labor Relations Board to conduct investigations” under 29 U.S.C. § 161, including issuing administrative subpoenas). If the entity does not comply with the subpoena, Title VII authorizes the EEOC to seek enforcement in federal district court. 42 U.S.C. § 2000e-9; McLane, 137 S. Ct. at 1165 (citing 29 U.S.C. §§ 161(1), (2)); Shell Oil, 466 U.S. at 63 (same).

C. Statement of Facts

ENA is a nationwide employer with seven United States facilities located across four separate states.[2] ENA manufactures car components such as heaters, air conditioners, control units, and service diagnostic tools. See R.6-3 at p. 3; R.2 at p. 2 n. 2. In 2017, the EEOC’s Birmingham District Office began investigating a charge of discrimination from a former ENA employee, Joseph White, who alleged that ENA violated the ADA when it fired him from his job at ENA’s Northport facility following a series of absences for a disability-related medical emergency.[3] See R.6-1 (White Charge). The charge further alleged that ENA maintained “a point system to discipline employees for absences and tardiness” that resulted in his discharge “in violation of the [ADA].” R.6-1 at pp. 6-7.

The EEOC uncovered information suggesting that the same discriminatory practice might have affected, and might be continuing to affect, other ENA employees. See R.1-2 (Commissioner Charge); R.6-8 (White Reasonable Cause Determination) at pp. 2-3. An EEOC Commissioner subsequently filed a charge in July 2019 alleging that “the above-named employer” (i.e., “Eberspa[e]cher North America, Inc.”) “has violated, … and continues to violate the ADAAA [ADA Amendments Act of 2008] by discriminating against employees on the basis of disability with respect to qualified leave.” R.1-2. Because the EEOC’s Birmingham Office was to investigate the charge, the charge listed ENA’s Northport facility address rather than its corporate headquarters in Novi, Michigan. Id.

The charge asserted that “the unlawful employment practices include, but are not limited to:

· Failing to properly categorize qualified absences protected under the ADAAA.

· Unlawful discipline and termination, and the improper assessment of occurrence points wherein an employee’s absence is directly correlated to their disability.”

Id. It explained that “[t]hese allegations are based upon a review of information regarding the employer, including [the] employer’s practices and the employee handbook.” Id. Finally, the charge identified “[t]he aggrieved individuals” as “all employees who … have been, or might in the future be[,] adversely affected by the unlawful employment practices set forth in the foregoing charge.” Id.

The EEOC notified ENA of the Commissioner charge and requested, inter alia, its “position statement” and supporting “documentary evidence,” including “documents, policies, and/or practices describing [ENA’s] entire process for employees requesting medical leave.” R.6-2 at pp. 2-6, 8-11. In response, ENA provided, inter alia, a position statement and excerpts from its 78-page Employment Guide that it provides to all team members [“employee handbook”] (see, e.g., R.6-3 at pp. 9-14, 15-22), including its ADA policy (R.6-3 at p. 18), and its attendance policy (R.6-3 at pp. 20-22).

ENA’s position statement explained that under its attendance policy, “[t]eam members who accumulate ten (10) or more attendance occurrences during a 12-month rolling period may be subject to termination.” R.6-3 at p. 10. The attached policy clarified that: an “unscheduled absence” results in two points; “10 points will result in Termination”; and ENA considers an absence to be “unscheduled if the team member has not prescheduled the absence at least 24 hours in advance.” R.6-3 at pp. 20-21. ENA further stated that an “attendance occurrence” is “an absence from any scheduled work” that falls outside nine enumerated categories that the attendance policy labels “excused absences” for which no points are assessed. R.6-3 at pp. 10, 22. Such “excused absences” include, inter alia, paid and unpaid time off, “military leave, bereavement, jury duty,” Family and Medical Leave Act (FMLA) absences, and “occupational injury.” R.6-3 at pp. 10, 22. The policy directed employees to “call the appropriate number below” to report absences and listed seven separate telephone numbers for each of ENA’s seven facilities (in Illinois, Michigan, South Carolina, and Alabama), thereby indicating to the EEOC that the policy applied nationwide. R.6-3 at pp. 21-22.

The EEOC sent ENA a follow-up request for nationwide information regarding employees discharged pursuant to the attendance policy. R.1-4. ENA objected, asserting, inter alia, that “the underlying Charge is specific to the Northport, Alabama facility.” R.6-5 at pp. 3-4. Instead of responding with nationwide information, ENA provided a duplicate copy of the same attendance policy along with a recently revised attendance policy. R.6-5 at pp. 6-15. Both versions imposed the same general discharge standards. Both also required employees to report absences to the company and included separate telephone numbers for each of ENA’s facilities in Illinois, Michigan, South Carolina, and Alabama. R.6-5 at pp. 9, 15.

Over the ensuing months, the EEOC continued to press ENA for nationwide information about employees discharged under the attendance policy, and ENA continued to resist. See generally R.1-5; R.1-7; R.6-6; R.6-7; R.6-19; R.6-20. For example, in March 2020, the EEOC wrote to ENA’s counsel explaining that the requested information was relevant to the EEOC’s assessment of whether ENA’s implementation of its attendance policy complied with the ADA’s requirement that employers reasonably accommodate their employees’ disabilities. R.6-20 at pp. 2-15. ENA responded by reiterating its refusal. R.1-7 at p. 2.

The EEOC eventually issued the subpoena at issue here. R.1-16.[4] It seeks two categories of “electronically stored information” for “each employee discharged from Respondent’s locations nationwide … for attendance infractions” “from January 1, 2018 to present”: (1) basic personal identifying information along with “reason for and date of discharge,” and (2) “the attendance history of each employee that resulted in discharge and all disciplinary actions that led to or contributed to discharge.” R.1-16 at p. 3.

When ENA refused to comply with the subpoena, the EEOC filed this application for judicial enforcement. R.1. The EEOC contended, inter alia, that the requested information easily falls within the generous construction courts give “relevance” in an EEOC subpoena enforcement action, where nationwide information will allow the Commission to assess whether ENA “failed to reasonably accommodate … disabled employees” in its implementation of its attendance policy. E.g., R.2 at pp. 13-15, 22. The EEOC also argued that, if the investigation were to conclude that ENA had violated the ADA, the requested information would be “essential for the EEOC to identify specific victims of that unlawful employment practice.” R.2 at p. 22. ENA responded, inter alia, that the subpoena’s request for information should be limited to the Northport facility. R.6 at pp. 19-21.

D. District Court Decision

The district court ordered ENA to comply with the subpoena in part. R.19 (Order). The court agreed with the Commission that the temporal and subject-matter scopes of the subpoena “are both relevant and reasonable in light of the Commissioner’s ADAAA charge.” Id. at pp. 1-2. But the court limited enforcement to ENA’s Northport facility, stating: “[T]he geographic scope of the subpoena is too broad when read in conjunction with the Commissioner’s Charge and Notice.” Id. at p. 2.

The court acknowledged the Commission’s entitlement to evidence “relevant to the charge under investigation” and that courts give “relevancy” “an expansive definition.” R.19 at p. 2 (quoting and citing Shell Oil, 466 U.S. at 64). It then concluded that “[t]he only entity charged in this case is Eberspaecher North America Inc. located at 6801 B 5th Street, Northport, Alabama 35476” and, therefore, “only records that pertain to violations of the ADAAA at the Northport facility are relevant [and] … must be produced.” Id. at p. 2; see also id. at p. 2 n.2 (stating “[t]he Commissioner’s Charge does not contain any language indicating that the charge is nationwide or against any other facility”).

The court noted that 42 U.S.C. § 2000e-5(b) requires the Commission to serve a respondent with “a notice of the charge” that includes, inter alia, the “place … of the alleged unlawful employment practice.” R.19 at p. 2 (emphasis added by district court). The court opined that “[o]ne indicia of a nationwide charge may be issuance of the charge to a corporation’s headquarters,” but concluded that “here, the charge indicates the Northport facility is the place where the alleged discrimination occurred.” Id. at p. 3 (stating that by listing the Northport address on the charge, “[t]he Commissioner herself limited the scope of her charge to the Northport facility”). The court acknowledged the EEOC’s explanation that the charge listed the Northport address only because the Commission’s Birmingham office had informed the Commissioner of the alleged unlawful practices at ENA’s Northport facility and because the Birmingham office was to conduct the investigation, but the court stated that “[t]hese facts tend to further indicate that the conduct underlying the charge occurred at the Northport, Alabama facility.” Id. at p. 4.

The court rejected what it mistakenly characterized as the EEOC’s argument that “a Commissioner’s Charge is inherently nationwide in its scope,” stating that such a position is unsupported by Title VII’s language. R.19 at pp. 2-3. The court did “not question[] the Commissioner’s ability to broaden the scope” of this charge “through a subsequent nationwide charge or the Commissioner’s ability to bring a nationwide charge from the start,” but ruled that “the Commissioner must indicate that a charge is nationwide by stating her intent within the four corners of the charge” and that she failed to do so here. Id. at p. 3 (citing, as examples where a Commissioner charge expressly indicated a broad scope, EEOC v. Bass Pro Outdoor World, L.L.C., 826 F.3d 791, 798 (5th Cir. 2016), and EEOC v. Superior Temporary Services, Inc., 56 F.3d 441 (2d Cir. 1995)).

E. Standard of Review

Courts of appeals, including this Court, generally review a district court’s decision to grant or deny enforcement of an administrative subpoena for abuse of discretion. McLane, 137 S. Ct. at 1167, 1170; SEC v. Marin, 982 F.3d 1341, 1352 (11th Cir. 2020) (citing McLane, 137 S. Ct. at 1167). “A district court abuses its discretion if it applies an incorrect legal standard, [or] applies the law in an unreasonable or incorrect manner.” Marin, 982 F.3d at 1352 (citation omitted). “[W]hether a district court employed the correct standard of relevance” in a subpoena enforcement action “is a question of law,” and a district court necessarily abuses its discretion “if it based its ruling on an erroneous view of the law.” McLane, 137 S. Ct. at 1168 n.3 (citation omitted); see also EEOC v. Randstad, 685 F.3d 433, 448 (4th Cir. 2012) (“unduly strict standard of relevance” amounts to “legal error, leading to an abuse of discretion”). Similarly, the “interpretation of an EEOC charge presents a question of law” that courts of appeals “review de novo.” EEOC v. Konica Minolta Bus. Sols. U.S.A., Inc., 639 F.3d 366, 371 (7th Cir. 2011); see also Smith v. Cheyenne Ret. Invs. L.P., 904 F.3d 1159, 1164 n.1 (10th Cir. 2018) (stating that “[t]he interpretation of the scope of an EEOC charge from the face of the charge itself[] … is best viewed as a legal issue reviewed de novo”).

SUMMARY OF THE ARGUMENT

The district court abused its discretion in two distinct ways by limiting the subpoena to the Northport facility. First, the court misinterpreted the Commissioner charge as alleging ADA violations at ENA’s Northport facility only. Read as a whole, the charge is directed at ENA’s companywide practice of disciplining and terminating employees whose disabilities caused workplace absences. The charge makes this clear by broadly stating that the allegations are based upon a review of ENA’s “practices and the employee handbook” and by identifying the aggrieved individuals as “all employees” adversely affected by ENA’s alleged unlawful practices (emphasis added). Neither of the district court’s reasons—the charge’s failure to use the terms “companywide” or “nationwide,” nor its use of the Northport address—justifies limiting the charge to the Northport facility. The EEOC’s regulations do not dictate any specific terminology to signal that a charge involves a systemic investigation of a company’s general practices. Those same regulations require a charge to include the respondent’s address only “if known”; the address does not define or limit the geographic scope of the investigation.

Second, even if the charge is limited to the Northport facility, the requested nationwide information would be relevant to the EEOC’s investigation. The Supreme Court has repeatedly made clear that relevance has a very expansive meaning in connection with EEOC administrative investigations. The charge alleges, on its face, that ENA is violating the ADA in how it categorizes absences protected under the ADA and disciplines and terminates employees for disability-related absences. The charge also states that those allegations are based on the EEOC’s review of information regarding ENA, including the “employer’s [i.e., ENA’s] practices and the employee handbook.” Given that the employee handbook appears to apply to all of ENA’s United States facilities—as it lists separate phone numbers for ENA’s seven facilities in four different states—how ENA implements that attendance policy with respect to employees with disabilities at all of its facilities will assist the EEOC in determining whether ENA is, in fact, violating the ADA as the Commissioner charge alleges. Thus, the district court’s order limiting ENA’s compliance to its Northport facility should be reversed.

ARGUMENT

The District Court Abused Its Discretion When It Failed to Order ENA to Provide Nationwide Information.

A district court’s role in a subpoena enforcement action is “sharply limited.” EEOC v. Kloster Cruise Ltd., 939 F.2d 920, 922 (11th Cir. 1991). This Court (like most courts) identifies three criteria for enforcement of an EEOC subpoena: (1) the investigation falls within the EEOC’s authority; (2) the request is not too indefinite; and (3) the information sought is reasonably relevant to the investigation. EEOC v. Tire Kingdom, Inc., 80 F.3d 449, 450 (11th Cir. 1996).

District courts have a “straightforward” role in assessing whether these criteria are satisfied. McLane, 137 S. Ct. at 1165 (citing Univ. of Pa. v. EEOC, 493 U.S. 182, 191 (1990); Shell Oil, 466 U.S. at 72 n.26). As the Supreme Court recently explained, if “the charge is valid” and “the material requested is ‘relevant’ to the charge” in light of “the ‘generou[s]’ construction that courts have given the term ‘relevant,’” “the district court should enforce the subpoena.” Id. (quoting Univ. of Pa., 493 U.S. at 191; Shell Oil, 466 U.S. at 68-69, 72 n.26); see also EEOC v. Cambridge Tile Mfg. Co., 590 F.2d 205, 206 (6th Cir. 1979) (EEOC subpoena should be enforced “so long as the EEOC is not wandering into wholly unrelated areas”). This same broad relevancy standard governs both Commissioner charges and individual charges. See Shell Oil, 466 U.S. at 68-69 (noting the “generous[]” relevance standard for EEOC’s investigative authority in the context of addressing a Commissioner charge); EEOC v. Roadway Exp., Inc., 261 F.3d 634, 640 (6th Cir. 2001) (rejecting Roadway’s argument that “relevance” is narrower in Commissioner charge investigations; citing, inter alia, Shell Oil, 466 U.S. at 57, 76).

A. The district court abused its discretion by misreading this Commissioner charge as directed only at ENA’s Northport facility.

Nowhere in its decision did the district court question that the nationwide information the EEOC’s subpoena requests is relevant to a charge alleging companywide discrimination. The court instead declined to enforce the EEOC’s request for nationwide information only because it misread this charge as narrowly limited to ENA’s Northport facility. The court erred as a matter of law. See Konica, 639 F.3d at 371 (“interpretation of an EEOC charge presents a question of law” that courts of appeals “review de novo”). Viewed as a whole, the charge is properly read as alleging that ENA—as a company—has violated, and is continuing to violate, the ADA through its implementation of its attendance policy. The district court necessarily abused its discretion when it concluded otherwise and narrowed the scope of the subpoena accordingly.

The Commissioner charge indicates that its subject is “Eberspa[e]cher North America, Inc.” R.1-2. That is the name of a company that operates multiple facilities within the United States, including the one in Northport. The body of the charge further asserts the Commissioner’s belief that ENA “discriminat[es] against employees” including “individuals classified as having a disability.” Id. And the charge states that the specific allegations—involving (a) improper categorization of employee absences and (b) unlawful discipline and termination of employees whose absences were directly correlated to their disability—are based on a review of information “regarding the employer, including the employer’s practices and the employee handbook.” Id. (emphasis added).

Nowhere does the charge state that these allegations of disability-based discrimination involve practices or employees at only ENA’s Northport facility, or that the allegations are based on policies unique to Northport. Rather, the words in the body of the charge naturally suggest that the charge is directed at the practices of “the employer,” Eberspaecher North America, Inc., at all of its facilities.

This conclusion is reinforced by the charge’s last sentence, which describes the “aggrieved individuals” who are the focus of the charge’s allegations as “all employees who … have been, or might in the future be adversely affected by the unlawful employment practices set forth in the foregoing charge.” R.1-2 (emphasis added). Read together, the charge’s use of that broader phrase “all employees” and its identification of the respondent as “Eberspa[e]cher North America, Inc.” indicates the charge alleges ADA violations based on ENA’s implementation of its attendance policy at all of the company’s United States facilities. See generally Sanchez v. Standard Brands, Inc., 431 F.2d 455, 462 (5th Cir. 1970) (in determining scope of an EEOC charge, stating “we begin with the obvious proposition that the crucial element of a charge of discrimination is the factual statement contained therein”)[5]; see also Dixon v. Ashcroft, 392 F.3d 212, 217 (6th Cir. 2004) (“the facts alleged in the body of the EEOC charge … are the major determinants of the scope of the charge” (citation omitted)).

The district court’s misinterpretation of the charge as limited to Northport rests on two errors. First, the court placed undue importance on the absence of the words nationwide or companywide from the body of the charge. To be sure, some Commissioner charges have included words such as “nationwide” or “all facilities,” as the district court noted. See R.19 at p. 3 (citing as examples Bass Pro Outdoor World, 826 F.3d at 798, and Superior Temporary Services, Inc., 56 F.3d 441). Such terminology is not required, however, for a charge to convey that it alleges systemic, companywide discrimination. Title VII, on this point, requires only that “[c]harges shall … contain such information and be in such form as the Commission requires.” 42 U.S.C. § 2000e-5(b). And the EEOC’s regulation governing the contents of a charge does not mandate any specific language or particular terms to signal that the allegations are systemic in nature. See 29 C.F.R. § 1601.12(a)-(b). Thus, it suffices that the charge—as here—states on its face that it is based on the company’s policy or practices.

And, contrary to ENA’s arguments below that the entity being investigated is “Eberspaecher-Northport,” see, e.g., R.6 (ENA Brief) at p. 20; see also R.6-46 (Declaration of Dannielle Thomas), that phrase appears nowhere in the charge itself. In fact, although ENA undeniably has (or at least had) a facility in Northport, it is not clear that the facility has ever existed as a separate legal entity. Among other things, the name “Eberspaecher-Northport” appears in none of the documents ENA produced during the investigation, and ENA stated in response to the EEOC’s first request for information that “Eberspaecher North America, Inc.” was the correct name of the facility named in the charge. See R.6-3 at p. 2.

Thus, the absence of the words “nationwide” or “companywide” is not determinative where the charge otherwise indicates that it is companywide. Here, the body of the charge lacks any affirmative statement that the allegations of discrimination are limited to policies and practices at the Northport facility. To the contrary, the charge’s overall thrust makes clear—as noted above—that it is directed at company practices reflected in ENA’s “employee handbook.” Nothing in the charge suggests the referenced practices and handbook are specific to Northport. And the referenced handbook—on its face—appears to apply to all of ENA’s United States facilities across four states, reinforcing that the charge itself pertains to all of ENA’s facilities.

That leaves only the charge’s use of the Northport address as support for the court’s conclusion that the charge is restricted to the Northport facility. The address used in a charge does not define the respondent or limit the geographic scope of a charge, however; it merely provides contact information for “the person against whom the charge is made.” 29 C.F.R. § 1601.12(a)(2). The EEOC’s regulations reinforce this conclusion, requiring charges to identify a respondent’s “full name and address” only “if known,” id., and specifying this in a separate subsection from the requirement that “[e]ach charge should contain … [a] clear and concise statement of the facts, including pertinent dates, constituting the alleged unlawful employment practices,” 29 C.F.R. § 1601.12(a)(3). The address thus identifies where the charge is being directed, not where the discrimination occurred or is occurring.[6]

Apart from the charge’s use of the Northport address, nothing in this Commissioner charge states or even hints that it pertains solely to a single ENA facility. Northport is mentioned nowhere in the discussion of the allegations of disability discrimination in the body of the charge. Eberspaecher North America, Inc.—the legal entity named in the charge—is the pertinent respondent.

The district court’s explanations for rejecting this position are based on a mistaken characterization of the EEOC’s arguments. The EEOC did not argue that “a Commissioner’s Charge is often expanded from an individual to nationwide charge,” a misinterpretation that prompted the court to state that although the Commissioner could broaden the charge to make it nationwide, the Commissioner had not yet done so. See R.19 (Order) at pp. 2-3. The Commissioner who filed this charge had no occasion to “expand” it from an individual to a nationwide charge because the charge was not individual in nature when it was filed. What the EEOC actually contended below—to refute an argument that ENA appeared to make (see R.6 at pp. 13-14)—is that the fact that this Commissioner charge followed on the heels of Joseph White’s individual charge did not limit the scope of the Commissioner charge to the same narrow, individual allegations that the White charge contained. See R.14 (Reply) at p. 8.

And the EEOC did not contend that “a Commissioner’s charge is inherently nationwide in its scope,” an argument that the court projected onto the EEOC and then characterized as “flawed.” R.19 (Order) at p. 2. In stating below that “[t]he fact that the underlying charge is a Commissioner’s Charge gives the EEOC broader authority to investigate,” R.14 (Reply) at p. 8, the EEOC meant that such broader authority exists here not because the charge was filed by a Commissioner, but because the charge “on its face alleges a systemic practice which adversely affected ‘aggrieved individuals.’” Id.; see R.1-2 (Commissioner Charge) (alleging discrimination based on a review of ENA’s “practices and the employee handbook,” and identifying the aggrieved individuals as “all employees” adversely affected).

In sum, read as a whole, the allegations in this Commissioner charge are directed at ENA’s practices companywide, not narrowly targeted at a single ENA facility. The district court erred as a matter of law in concluding otherwise, and abused its discretion by declining on that basis to enforce the EEOC’s request for nationwide information.

B. Nationwide information is relevant to the EEOC’s investigation, even if the charge is directed only at the Northport facility.

The nationwide information the EEOC seeks in this subpoena is relevant to the EEOC’s investigation of ENA’s employment practices, even assuming arguendo that this Commissioner charge is limited to ENA’s Northport facility. The Supreme Court’s expansive definition of relevance in the context of EEOC investigations easily encompasses the companywide information this subpoena requests, where the charge alleges disability discrimination in ENA’s implementation of its attendance policy and the subpoena seeks to identify individuals who were discharged under that policy at any of ENA’s United States facilities. This is particularly so given the charge’s explanation that it is based, inter alia, on ENA’s practices, and those practices in turn are based on a written attendance policy that, on its face, appears to apply to all of ENA’s United States facilities. The district court’s contrary ruling reflects an incorrect and unduly constricted view of relevance in the context of EEOC investigations. See McLane, 137 S. Ct. at 1168 n.3 (“A district court would necessarily abuse its discretion if it based its ruling on an erroneous view of the law.” (citation omitted)); Marin, 982 F.3d at 1352 (“A district court abuses its discretion if it applies an incorrect legal standard, [or] applies the law in an unreasonable or incorrect manner.” (citation omitted)).

As the Supreme Court and courts of appeals have explained, courts interpret broadly Title VII’s explicit language, in 42 U.S.C. § 2000e-8(a), entitling EEOC to “any evidence that relates to unlawful employment practices” and “is relevant to the charge under investigation.” This statutory provision allows the EEOC “access to virtually any material that might cast light on the allegations against the employer,” Shell Oil, 466 U.S. at 68-69; EEOC v. United Parcel Serv., Inc., 859 F.3d 375, 378 (6th Cir. 2017) (quoting, inter alia, Shell Oil); or “touches a matter under investigation,” EEOC v. A.E. Staley Mfg. Co., 711 F.2d 780, 783 (7th Cir. 1983); see also Marin, 982 F.3d at 1355 (applying the same standard to an SEC subpoena). Thus, relevance in the context of EEOC investigations “is not especially constraining” and, the Supreme Court has observed, is “generously construed.” Shell Oil, 466 U.S. at 68.

Here, the Commission is investigating alleged disability discrimination that the Commissioner charge states is based, at least in part, on a policy set out in ENA’s employee handbook. That handbook indicates that the policy applies throughout the company—not just for Northport—because it requires employees to report their absences and lists, for that purpose, separate telephone contact information for each ENA facility in Illinois, Michigan, South Carolina, and Alabama. Given that the policy underlying the alleged discrimination applies throughout the entire company, information about the companywide results or impact of that policy necessarily may “cast light” on charge allegations about Northport, and such information certainly “touches” the matter under investigation. And requiring ENA to produce nationwide information will “not make [the relevance] requirement a nullity,” as the district court noted courts must be careful not to do. See R.19 at p. 2 (citing Shell Oil, 466 U.S. at 69). Rather, it will give proper effect to the breadth of the investigatory authority that Congress gave the EEOC when it enacted Title VII and later imported those same investigative powers into the ADA.

Broader information is relevant here because, for example, such information would help the EEOC to understand how ENA actually implements this attendance policy in practice; i.e., whether company officials dictate implementation in a certain way that adversely affects employees with disabilities, or whether the company leaves discretion to individual managers and Human Resources staff at each facility to determine how the policy will be applied to absences caused by an employee’s disability. The information would therefore be relevant to the EEOC’s investigation of this Commissioner charge alleging, based on a review of ENA’s “practices and employee handbook,” that ENA discriminated in violation of the ADA. And if the EEOC finds reasonable cause to believe discrimination occurred at Northport, then knowing whether employees at other ENA facilities also experienced the same discrimination would be critical in fashioning complete relief in any ensuing conciliation efforts. See 42 U.S.C. § 2000e-5(b) (requiring the EEOC to “endeavor to eliminate any … unlawful employment practice by informal methods of … conciliation” whenever the EEOC finds “reasonable cause to believe that the charge is true”).

Several courts of appeals have reversed district courts that declined to enforce EEOC administrative subpoenas seeking information beyond the facility where the charge allegations arose, where the charge’s allegations implicated a companywide policy. These courts of appeals all concluded that the lower courts, in denying broader information, applied too narrow a standard of relevance.

In EEOC v. Kronos Inc., for example, the Third Circuit reversed, inter alia, a district court’s geographic narrowing of an EEOC subpoena investigating an individual claim of disability discrimination at a single store in West Virginia. 620 F.3d 287, 296-300 (3d Cir. 2010). Noting that Kronos’s clients used the allegedly discriminatory pre-employment test for hiring decisions nationwide (not just in West Virginia), the court of appeals ruled that the district court “applied too restrictive a standard of relevance” when it refused to compel disclosure of nationwide information. Id. at 297. Applying the correct standard, the Third Circuit held that “[a]n employer’s nationwide use of a practice under investigation supports a subpoena for nationwide data on that practice.” Id. at 298-99. The Third Circuit explained that “[t]he 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.” Id. at 298 (citation omitted). The court further stated that “nationwide materials” could provide both “important comparison data, as well as a ‘useful context’ for evaluating” whether the employer practice under investigation (use of an assessment test) “violates the ADA.” Id. at 298-99 (citation omitted).

The court rejected Kronos’s argument that the EEOC was not entitled to the information it sought because the charge lacked “any allegations of nationwide discrimination,” explaining that “the EEOC’s investigatory power is broader than the four corners of the charge [and] encompasses not only the factual allegations contained in the charge, but also any information that is relevant to the charge.” Id. at 299 (noting that relevance is “construed broadly when a charge is in the investigatory stage” (citations omitted)); see also EEOC v. UPMC, 471 F. App’x 96, 99-101 (3d Cir. 2012) (reaffirming Kronos’s view of relevance and vacating the district court’s order refusing to enforce the EEOC’s subpoena seeking companywide information in connection with investigation of individual charge, where respondent admitted acting based on a companywide leave policy).

As in Kronos, nationwide information here would provide important comparison data and “a ‘useful context’ for evaluating” whether ENA’s implementation of its attendance policy “violates the ADA.” Kronos, 620 F.3d at 298-99. As noted above, ENA exempts nine categories of absences from the “point system” in its attendance policy. See R.6-3 at p. 22 (attendance policy). These exemptions include, inter alia: bereavement; jury duty; military leave; FMLA; and occupational injury (id.), a list that presumably reflects ENA’s recognition that employees should not be punished for certain absences that are beyond their control or (as with FMLA) where federal law compels the employer to excuse the absence. Notably, the list omits absences necessitated by an ADA-covered disability.[7]

The Commissioner charge alleges that ENA fails to excuse absences due to illnesses or injuries that qualify as disabilities under the ADA. Nationwide information as to employees discharged for attendance infractions would allow the EEOC to identify any individuals ENA discharged following disability-related absences and then to determine whether ENA impermissibly counted those absences as “attendance occurrences” even where they would have qualified for an ADA accommodation. Such information would allow the EEOC to ascertain whether ENA is providing reasonable accommodations as required under the ADA. It would also allow the EEOC to assess any ENA assertions that extending its existing exemptions to ADA-related leave would impose an undue hardship, given ENA’s exemption of leave related to FMLA and occupational injuries (as well as to other types of leave unrelated to illness or injury). In other words, if ENA terminates employees for attendance infractions caused by ADA-qualifying disabilities but does not assess points against those same employees for taking leave for other reasons, then this information would tend to show that ENA could have reasonably accommodated their need for ADA-qualifying leave without any undue hardship. Thus, as in Kronos, the information the subpoena requests would provide relevant context for determining whether ENA implements its attendance policy in a manner that violates the ADA.

Examining absences only at ENA’s Northport facility, however, will not likely provide sufficient comparative data, given Northport’s small—and dwindling—number of employees. R.6-3 at p. 3 (indicating 269 employees as of January 1, 2017; 176 employees as of January 1, 2019; and only 32 employees as of August 1, 2019). The wider pool of comparative information from all of ENA’s facilities would thus provide important context in this systemic investigation of ENA’s practices. Consequently, such information is relevant to the Commission’s investigation of the Northport facility.

The Third Circuit does not stand alone in recognizing the relevance of broader information where an EEOC charge includes systemic allegations. In EEOC v. Randstad, for example, the Fourth Circuit reversed a district court’s refusal to enforce an EEOC subpoena in an individual charge investigation, where the EEOC sought information concerning the staffing agency’s thirteen Maryland offices (only one of which the charging party had ever visited) for a five-year timeframe (even though charging party had been a Randstad client for only two of those years), including for jobs the charging party had never sought. 685 F.3d at 436-39. The Fourth Circuit concluded that “the requested materials are relevant to the EEOC’s investigation” because the focus of that investigation was a companywide literacy requirement that applied, without exception, to every job in Maryland that Randstad sought to fill. Id. at 450-51.

And in EEOC v. United Parcel Service, Inc., the Second Circuit reversed a district court’s refusal to enforce a subpoena seeking nationwide information on how UPS implemented its Appearance Guidelines in connection with the EEOC’s investigation of two individual charges alleging UPS failed to accommodate their religious practices and beliefs. 587 F.3d 136 (2d Cir. 2009). Emphasizing the court’s “extremely limited” role in enforcing an EEOC subpoena and the “generous[]” construction courts give relevance in this context, the Second Circuit held that “the district court applied too restrictive a standard” in rejecting the relevancy of nationwide information to the EEOC’s investigation. Id. at 139. Among the factors dictating the EEOC’s entitlement to this broad information, the Second Circuit said, was that “the Appearance Guidelines apply to every UPS facility in the country” and that until recently UPS had not allowed any religious exemptions. Id. at 139-40 (noting additionally that one of the individual charges also alleged a pattern or practice of religious discrimination). Cf. Roadway, 261 F.3d at 638-41 (affirming district court order to enforce EEOC subpoena for information about other positions besides those specifically alleged in the Commissioner charge because an “employer’s pattern of action provides context for determining whether discrimination has taken place”); see also EEOC v. All. Residential Co., 866 F. Supp. 2d 636 638-43 (W.D. Tex. 2011) (where individual employee alleged ADA violation based on companywide policy of firing employees who exhausted their FMLA leave, court agreed that information about other employees working in sixteen branch offices, located in fourteen states, who were terminated pursuant to the same policy was relevant to the individual charge, and enforced EEOC subpoena accordingly).

Applying the Supreme Court’s generous definition of relevance in EEOC investigations, each of these courts ordered the respondents to produce information about the effect of an employer’s alleged discriminatory policy or practice on employees or applicants at other facilities or locations beyond where an individual employee worked. They did so—reversing the district court orders denying enforcement—on the ground that evidence beyond a single facility was relevant to determining whether the employer had violated federal protections against employment discrimination. This Court should do the same here, where nationwide information showing how ENA has implemented its companywide policy reflected in its employee handbook would both “cast light on the allegations against” ENA, Shell Oil, 466 U.S. at 69; United Parcel Serv., 859 F.3d at 378, and “touch[ on] a matter under investigation,” A.E. Staley Mfg., 711 F.2d at 783; Marin, 982 F.3d at 1355.

In sum, the district court here abused its discretion by applying too narrow a standard of relevance to the EEOC’s request for nationwide information about ENA’s implementation of its companywide attendance policy.

CONCLUSION

For the foregoing reasons, this Court should reverse the district court’s order and remand this matter for enforcement of the Commission’s subpoena.

Respectfully submitted,

GWENDOLYN YOUNG REAMS

Acting General Counsel

JENNIfer s. goldstein

Associate General Counsel

ANNE NOEL OCCHIALINO

Acting Assistant General Counsel

/s/ Susan R. Oxford

SUSAN R. OXFORD

Attorney, Appellate Litigation Services

Office of General Counsel

Equal Employment Opportunity Commission

131 M St. NE, Fifth Floor

Washington, DC 20507

(202) 921-2706

susan.oxford@eeoc.gov

December 21, 2021

29 U.S.C. § 161. Investigatory powers of Board:

(1) Documentary evidence; summoning witnesses and taking testimony

The Board, or its duly authorized agents or agencies, shall at all reasonable times have access to, for the purpose of examination, and the right to copy any evidence of any person being investigated or proceeded against that relates to any matter under investigation or in question. The Board, or any member thereof, shall upon application of any party to such proceedings, forthwith issue to such party subpenas requiring the attendance and testimony of witnesses or the production of any evidence in such proceedings or investigation requested in such application. Within five days after the service of a subpena on any person requiring the production of any evidence in his possession or under his control, such person may petition the Board to revoke, and the Board shall revoke, such subpena if in its opinion the evidence whose production is required does not relate to any matter under investigation, or any matter in question in such proceedings, or if in its opinion such subpena does not describe with sufficient particularity the evidence whose production is required. Any member of the Board, or any agent or agency designated by the Board for such purposes, may administer oaths and affirmations, examine witnesses, and receive evidence. Such attendance of witnesses and the production of such evidence may be required from any place in the United States or any Territory or possession thereof, at any designated place of hearing.

(2) Court aid in compelling production of evidence and attendance of witnesses

In case of contumacy or refusal to obey a subpena issued to any person, any district court of the United States or the United States courts of any Territory or possession, within the jurisdiction of which the inquiry is carried on or within the jurisdiction of which said person guilty of contumacy or refusal to obey is found or resides or transacts business, upon application by the Board shall have jurisdiction to issue to such person an order requiring such person to appear before the Board, its member, agent, or agency, there to produce evidence if so ordered, or there to give testimony touching the matter under investigation or in question; and any failure to obey such order of the court may be punished by said court as a contempt thereof.

Title VII of the Civil Rights Act of 1964:

42 U.S.C. § 2000e-5(b). Enforcement provisions (excerpts):

(b) Charges by persons aggrieved or member of Commission of unlawful employment practices by employers, etc.; filing; allegations; notice to respondent; contents of notice; investigation by Commission; contents of charges; prohibition on disclosure of charges; determination of reasonable cause; conference, conciliation, and persuasion for elimination of unlawful practices; prohibition on disclosure of informal endeavors to end unlawful practices; use of evidence in subsequent proceedings; penalties for disclosure of information; time for determination of reasonable cause

Whenever a charge is filed by or on behalf of a person claiming to be aggrieved, or by a member of the Commission, alleging that an employer * * * has engaged in an unlawful employment practice, the Commission shall serve a notice of the charge (including the date, place and circumstances of the alleged unlawful employment practice) on such employer * * * (hereinafter referred to as the “respondent”) within ten days, and shall make an investigation thereof. Charges shall be in writing under oath or affirmation and shall contain such information and be in such form as the Commission requires. Charges shall not be made public by the Commission. If the Commission determines after such investigation that there is not reasonable cause to believe that the charge is true, it shall dismiss the charge and promptly notify the person claiming to be aggrieved and the respondent of its action. * * * If the Commission determines after such investigation that there is reasonable cause to believe that the charge is true, the Commission shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion. * * *

42 U.S.C. § 2000e-8(a). Investigations:

(a) Examination and copying of evidence related to unlawful employment practices

In connection with any investigation of a charge filed under section 2000e-5 of this title, the Commission or its designated representative shall at all reasonable times have access to, for the purposes of examination, and the right to copy any evidence of any person being investigated or proceeded against that relates to unlawful employment practices covered by this subchapter and is relevant to the charge under investigation.

42 U.S.C. § 2000e-9. Conduct of hearings and investigations pursuant to section 161 of Title 29

For the purpose of all hearings and investigations conducted by the Commission or its duly authorized agents or agencies, section 161 of Title 29 shall apply.

Americans with Disabilities Act of 1990, as amended:

42 U.S.C. §§ 12101. Findings and Purpose

(b) Purpose

It is the purpose of this chapter--

(1) to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities;

* * *

(3) to ensure that the Federal Government plays a central role in enforcing the standards established in this chapter on behalf of individuals with disabilities

* * *

42 U.S.C. § 12111. Definitions (excerpt):

(9) Reasonable accommodation

The term “reasonable accommodation” may include—

* * *

(B) job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.

42 U.S.C. § 12112. Discrimination (excerpts):

(a) General rule

No covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.

(b) Construction

As used in subsection (a), the term “discriminate against a qualified individual on the basis of disability” includes—

* * *

(5)(A) not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity; * * *

42 U.S.C. § 12117. Enforcement:

(a) Powers, remedies, and procedures

The powers, remedies, and procedures set forth in sections 2000e-4, 2000e-5, 2000e-6, 2000e-8, and 2000e-9 of this title shall be the powers, remedies, and procedures this subchapter provides to the Commission, to the Attorney General, or to any person alleging discrimination on the basis of disability in violation of any provision of this chapter, or regulations promulgated under section 12116 of this title, concerning employment.

29 C.F.R. § 1601.12 Contents of charge; amendment of charge (excerpts):

(a) Each charge should contain the following:

(2) The full name and contact information of the person against whom the charge is made, if known (hereinafter referred to as the respondent);

(3) A clear and concise statement of the facts, including pertinent dates, constituting the alleged unlawful employment practices: See § 1601.15(b);

(4) If known, the approximate number of employees of the respondent employer or the approximate number of members of the respondent labor organization, as the case may be;

* * *

(b) Notwithstanding the provisions of paragraph (a) of this section, a charge is sufficient when the Commission receives from the person making the charge a written statement sufficiently precise to identify the parties, and to describe generally the action or practices complained of. * * *

[1] “R.*” refers to the document number on the district court docket.

[2] Documents ENA produced at the outset of the EEOC’s investigation indicated seven United States facilities. E.g., R.6-3 at p. 22. ENA subsequently produced a document listing only six U.S. facilities, including the Northport facility. R.6-5 at p. 15. We refer to seven U.S. facilities because that was the existing number when the EEOC began this investigation.

[3] The Commission’s Birmingham Office issued a “reasonable cause” finding on White’s discrimination charge, R.6-8 at pp. 2-4, and White ultimately filed suit against ENA, see White v. Eberspacher North America, Civ. No. 7:21-cv-1229 (N.D. Ala.).

[4] The EEOC issued two earlier identical subpoenas but voluntarily withdrew each one after ENA objected to the adequacy of service. See R.6-24; R.6-28.

[5] Decisions of the Court of Appeals for the Fifth Circuit issued prior to October 1, 1981, are binding precedent in this Court. Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981).

[6] The district court emphasized Title VII’s statutory requirement that the Commission “serve a notice of the charge” on the employer that includes the “place … of the alleged unlawful employment practice.” R.19 at pp. 2-3 (citing 42 U.S.C. § 2000e-5(b); emphasis added by district court). Thereafter, however, the court properly shifted its focus to the content of the charge itself, which indicates that the discrimination may be occurring at all ENA facilities in the United States. See generally R.19 at pp. 2-4.

[7] The ADA requires employers to provide reasonable accommodations to employees with a disability, absent undue hardship. 42 U.S.C. §§ 12112(a), (b)(5)(A). Reasonable accommodation under the ADA includes “[m]odifying workplace policies, including leave policies.” Holly v. Clairson Indus., L.L.C., 492 F.3d 1247, 1262-63 (11th Cir. 2007) (quoting EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, No. 915.002 (Oct. 17, 2002), Question 17); see also 42 U.S.C. § 12111(9)(B) (“The term ‘reasonable accommodation’ may include … appropriate adjustment or modifications of … policies”).