EEOC v. Austal USA, LLC,
No. 1:17-mc-0006-WS-MU, 2017 U.S. Dist. LEXIS 133302 (S.D. Ala. Aug. 18, 2017).......................................................... 17

EEOC v. Burlington Northern Santa Fe Railroad,
669 F.3d 1154 (10th Cir. 2012)............................ 14, 15, 16, 17

EEOC v. Centura Health,
933 F.3d 1203 (10th Cir. 2019)................................................ 16

EEOC v. Kloster Cruise Ltd.,
939 F.2d 920 (11th Cir. 1991).................................................. 12

* EEOC v Kronos Inc.,
620 F.3d 287 (3d Cir. 2010)..................................................... 14

EEOC v. Maryland Cup Corp.,
785 F.2d 471 (4th Cir. 1986).................................................... 22

EEOC v. Michael Construction Co.,
706 F.2d 244 (8th Cir. 1983).................................................... 10

EEOC v. Quad/Graphics, Inc.,
63 F.3d 642 (7th Cir. 1995)...................................................... 22

EEOC v. Royal Caribbean Cruises, Ltd.,
771 F.3d 757 (11th Cir. 2014).................................................. 22

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

EEOC v. TriCore Reference Laboratories,
849 F.3d 929 (10th Cir. 2017)..................................... 14, 16, 17

EEOC v. United Air Lines, Inc.,
287 F.3d 643 (7th Cir. 2002).................................................... 22

Hamilton v. Southland Christian School, Inc.,
680 F.3d 1316 (11th Cir. 2012)................................................ 20

Holly v. Clairson Industries, L.L.C.,
492 F.3d 1247 (11th Cir. 2007)........................................... 3, 21

International Brotherhood of Teamsters v. United States,
431 U.S. 324 (1977)................................................................... 10

Lobo v. Celebrity Cruises, Inc.,
704 F.3d 882 (11th Cir. 2013).................................................... 2

Mach Mining, LLC v. EEOC,
575 U.S. 480 (2015)................................................................... 19

* McLane Co. v. EEOC,
137 S. Ct. 1159 (2017).................................................. 13, 22, 23

Mississippi Chemical Corp. v. EEOC,
786 F.2d 1013 (11th Cir. 1986).................................................. 8

Sanchez v. Standard Brands, Inc.,
431 F.2d 455 (5th Cir. 1970)...................................................... 7

University of Pennsylvania v. EEOC,
493 U.S. 182 (1990)............................................................. 12, 13

Statutes

29 U.S.C. § 161................................................................................... 5

42 U.S.C. § 2000e-5(b).............................................................. passim

42 U.S.C. § 2000e-8(a)............................................................ 5, 8, 17

42 U.S.C. § 2000e-9........................................................................... 5

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

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

42 U.S.C. § 12117(a) ......................................................................... 5

Other Authorities

29 C.F.R. § 1601.12(a)(2).................................................................. 7

29 C.F.R. § 1601.12(a)(3).................................................................. 9

EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, No. 915.002 (Oct. 17, 2002).............................................. 3

Docket, White v. Eberspa[e]cher North America,
7:21-cv-01229-LSC (N.D. Al.).............................................. 2, 6

INTRODUCTION

In its opening brief, Appellant Equal Employment Opportunity Commission (EEOC or Commission), argued that for two reasons the district court abused its discretion in enforcing the EEOC’s subpoena only as to one facility of the Appellee, Eberspaecher North America, Inc. (ENA). First, the court misinterpreted the relevant charge of discrimination as alleging violations of the A mericans with Disabilities Act (ADA), 42 U.S.C. §§ 12101, et seq., only as to ENA’s facility in Northport, Alabama. Second, even assuming the charge is directed exclusively at the Northport facility, data as to ENA’s other facilities is nevertheless relevant to the EEOC’s investigation to provide helpful context and comparative information, and to enable the EEOC to fashion complete relief in any ensuing conciliation efforts.

ENA responds that because the charge lacks “nationwide verbiage” and lists the Northport facility’s address, it necessarily follows that “the EEOC could not have intended the Commissioner Charge to be nationwide.” ENA Br. at 8, 10-11. But this ignores the charge’s substantive language, which is directed at ENA’s companywide practice of disciplining and terminating employees whose disabilities caused workplace absences.

ENA next contends that the EEOC has not “demonstrate[d]” a “pattern or practice” of discrimination that would “justify an investigatory expansion.” Id. at 9. This contention misunderstands the EEOC’s argument. We never argued that we expanded the investigation beyond the allegations in the charge; we argued that the charge itself alleged companywide discrimination.

As to the EEOC’s second argument, ENA asserts that nationwide data “would be entirely unhelpful” in assessing the charge’s allegations, id. at 18, but ENA does not refute the EEOC’s specific arguments that such data would shed light on an investigation of discriminatory practices at the Northport facility. ENA adds, almost as an afterthought, that “the subpoena is too indefinite, unreasonably burdensome, and has a clear illegitimate purpose.” Id. at 9. As explained infra, such assertions disregard the charge’s actual substantive content, and they lack support in both the law and the record.

But perhaps more notable is what ENA does not say in its brief. ENA does not question the key legal principle on which the EEOC relies: that companywide data is relevant where a charge alleges a companywide discriminatory policy. Nor does ENA deny, as a factual matter, that its allegedly discriminatory attendance policy does indeed apply companywide. In fact, in related litigation, see EEOC Br. at 5 n.3, ENA has admitted that the company, as a whole, maintains an attendance “point system,” which is the focus of the allegations in the charge here. See Docket, White v. Eberspa[e]cher N. Am., 7:21-cv-01229-LSC (N.D. Al.), R.9 at pp. 4, 7.[1] Thus, there can no longer be any real dispute as to whether the attendance policy applies at all ENA facilities. It does.

Accordingly, if ENA’s position prevails and the district court’s geographic restriction of the EEOC’s investigation stands, it will not be because the discriminatory practices described in the charge are in fact limited to Northport. Nor will it be because the EEOC is incorrect as to any of the governing legal standards. Instead, ENA’s position turns almost entirely on the charge’s failure to include certain special words and contact information. As explained below, ENA’s hyper-technical “nationwide verbiage” standard exalts form over substance and should be rejected.

ARGUMENT

As we explained, see EEOC Br. at 28 n.7, this Court has held that, as a “reasonable accommodation” under the ADA, employers sometimes must “[m]odify[] 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, 2002 WL 31994335); see also generally 42 U.S.C. §§ 12112(a), (b)(5)(A). Indeed, as Holly recognized, “If an employee with a disability needs additional unpaid leave as a reasonable accommodation, the employer must modify its ‘no-fault’ leave policy to provide the employee with the additional leave unless it can show,” for example, that “granting additional leave would cause an undue hardship.” 4 92 F.3d at 1263 (quoting Enforcement Guidance at Question 17).

Here, the Commission received information indicating that ENA maintained an attendance policy that assessed “points” based on attendance “occurrences.” R.6-3 at pp. 20-22 (attendance policy). Under this policy, ENA penalized certain health-related absences but excused absences for other reasons. Id. at 22; see also EEOC Br. at 27-28. ENA acknowledges that this constitutes a “no-fault attendance policy.” ENA Br. at 3. And because ENA publicized the policy in its employee handbook, which on its face appeared to govern each of ENA’s United States locations, the EEOC was concerned that ENA maintained a companywide discriminatory attendance policy.

Consequently, an EEOC Commissioner filed a charge. See generally 42 U.S.C. § 2000e-5(b). The charge alleged, in pertinent part, that “Eberspa[e]cher North America, Inc.” was the relevant “employer,” and that this company “has violated, . . . and continues to violate the [ADA] by discriminating against employees on the basis of disability with respect to qualified leave.” R.1-2 at p. 1. The charge also stated, inter alia, that ENA was “improper[ly] assess[ing] occurrence points wherein an employee’s absence is directly correlated to their disability.” Id. The charge made clear that it alleged class-wide ADA violations, identifying “[t]he aggrieved individuals” as “all employees who . . . have been, or might in the future be[,] adversely affected by the unlawful employment practices [in] the foregoing charge.” Id. And, the charge added, “[t]hese allegations are based upon a review of information regarding the employer, including [the] employer’s practices and the employee handbook.” Id.

In the ensuing investigation, the Commission issued a subpoena seeking companywide information and ultimately sought the district court’s assistance in enforcing that subpoena. See generally 42 U.S.C. § 2000e-9 (incorporating 29 U.S.C. § 161); EEOC Br. at 4-5, 9. The EEOC’s subpoena was grounded in its statutory investigative authority, which provides that 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.” 42 U.S.C. § 2000e-8(a) (emphasis added); see also 42 U.S.C. § 12117(a); EEOC v. Shell Oil Co., 466 U.S. 54, 68-69 (1984) (“relevan[ce]” is construed “generously” to “afford[] the Commission access to virtually any material that might cast light on the allegations against the employer”).

Nevertheless, ENA continues to argue that it may withhold information as to the non-Northport facilities, asserting that the charge is directed only to Northport, ENA Br. at 9-11; EEOC lacked authority to expand its investigation, id. at 9; and the requested information is irrelevant to an investigation of Northport, id. at 18. As alternative grounds for affirmance, ENA asserts that the subpoena “is too indefinite, unreasonably burdensome, and has a clear illegitimate purpose.” Id. at 9, 11. As to each of these points, ENA is mistaken.

I. ENA is incorrect that the address in the charge and the absence of special words, such as “nationwide” or “companywide,” limit the charge to the Northport facility.

A. The address in the charge does not define the geographic scope of the investigation.

ENA’s contention that the charge “names the Northport facility as the employer accused of unlawful employment practices” is inaccurate. ENA Br. at 8. To be clear, the “employer” that the charge alleges to have engaged in discrimination is “Eberspa[e]cher North America, Inc.,” not any subdivision or individual location of that organization. See R.1-2 at p. 1; see also R.6-3 at p. 2 (ENA stating in response to an EEOC request for information that the correct name of the facility named in the charge is the general company name: “Eberspaecher North America, Inc.”).

Moreover, ENA’s implication that its Northport facility constitutes a distinct “employer” in any relevant sense is misleading. As the EEOC observed in its opening brief, there is no reason to believe that the Northport facility “has ever existed as a separate legal entity.” EEOC Br. at 19. ENA offers no response to this point. And, in fact, in a corporate disclosure statement ENA filed in the White litigation, ENA stated that it is a single legal entity, with “no parents, subsidiaries and/or affiliates.” See Docket, White v. Eberspa[e]cher N. Am., 7:21-cv-01229-LSC (N.D. Al.), R.11 at p. 1. It is thus clear that—ENA’s persistent suggestions to the contrary notwithstanding, see, e.g., ENA Br. at 8—the actual subject of the EEOC’s investigation is “Eberspa[e]cher North America, Inc.,” R.1-2 at p. 1, a company that operates multiple facilities, including the one in Northport, see also EEOC Br. at 19 (refuting ENA’s argument that the subject of the charge is “Eberspaecher-Northport”).

In addition, for reasons explained in the EEOC’s opening brief, by far the most natural reading of the substantive allegations in the charge is that they are directed at ENA, the company as a whole, not just its Northport facility. See supra p. 4; see also EEOC Br. at 13, 16-17. To be sure, the physical address listed in the charge is that of ENA’s Northport facility. But inasmuch as there exists any tension between the charge’s substantive content and the listed address, the substance must govern. See, e.g., EEOC Br. at 17-18 (citing Sanchez v. Standard Brands, Inc., 431 F.2d 455, 462 (5th Cir. 1970), and Dixon v. Ashcroft, 392 F.3d 212, 217 (6th Cir. 2004), for the “obvious proposition” that the “major determinant[] of the scope of [a] charge” is “the factual statement contained therein”). ENA—like the district court—lacks legal authority for its contrary conclusion.

As the EEOC explained (EEOC Br. at 20), the pertinent regulation states that charges should contain the “contact information of the person against whom the charge is made,” but only “if known,” 29 C.F.R. § 1601.12(a)(2); and there is no statutory or regulatory authority for the proposition—suggested by the district court—that a charge must list a company’s corporate headquarters’ address in order to allege companywide discrimination. See R.19 at p. 3 (district court order).

ENA emphasizes, as the district court did, that 42 U.S.C. § 2000e-5(b) requires the EEOC to identify “the date, place and circumstances of the alleged unlawful employment practice.” ENA Br. at 2 (quoting district court’s opinion) (emphasis supplied by the district court). It is not clear whether ENA has embraced the district court’s logic that because § 2000e-5(b) requires the EEOC to serve notice of the “place” where the unlawful practices occurred, “[t]he Commissioner herself limited the scope of her charge to the Northport facility.” R.19 at p. 3. To the extent ENA does urge this rationale, its argument conflicts with Shell Oil. There, the Supreme Court stated: “[t]he requirement that the notice contain an indication of the ‘date, place and circumstances of the alleged unlawful employment practice’ . . . was not envisioned as a substantive constraint on the Commission’s investigative authority.” 466 U.S. at 75 (emphasis added); see also Miss. Chem. Corp. v. EEOC, 786 F.2d 1013, 1017 (11th Cir. 1986) (“Shell Oil strongly indicates that a ‘notice of charge does not define the permissible scope of an EEOC investigation.’” (citation omitted)).

B. The absence of special words in the charge does not define the geographic scope of the investigation.

ENA’s focus on the charge’s lack of “nationwide verbiage” is similarly misguided. ENA Br. at 11. Indeed, ENA’s approach on this point amounts to a formulaic “magic words” requirement that no court we are aware of (aside from the district court here) has ever adopted. One problem with this proposed standard, at least as applied in this case, is that it disregards the charge’s actual substantive allegations and, perhaps more importantly, undermines the EEOC’s broad investigative authority, see, e.g., 42 U.S.C. § 2000e-8(a), based on a hollow technicality.

Again, ENA does not deny that its allegedly discriminatory attendance policy applies in all its facilities. See supra p. 2. ENA acknowledges that it applies the “no-fault attendance policy” at its Northport facility. ENA Br. at 3. And although it says that “[e]ach of its production facilities functions independently” and “relies on different management and human resources teams,” id., ENA notably does not assert that its policy only applies in Northport. If this were the case, ENA would have every incentive to state that directly and unambiguously in its brief. Its failure to do so is a telling indication of what the EEOC has suspected all along: that the policy applies in all of ENA’s facilities nationwide; ENA’s admission in the White litigation confirms this to be so. See supra p. 2.

Accordingly, ENA’s refusal to comply with the subpoena is based on the notion that a charge must include special words, like “nationwide” or “all . . . facilities,” to convey broad geographic scope. See ENA Br. at 11. But as with its argument about the address in the charge, ENA lacks legal authority for its proposed “nationwide verbiage” standard. As the EEOC explained (EEOC Br. at 18-19), the relevant statutory provision says 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 applicable regulation requires merely that charges “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 charge here plainly satisfied these requirements, and it needed nothing more to communicate both that it alleged companywide discrimination and that the ensuing investigation would likewise be companywide in scope. Cf. EEOC v. Michael Constr. Co., 706 F.2d 244, 250 n.5 (8th Cir. 1983) (“A charge . . . otherwise sufficient under the statute and regulations do[es] not become insufficient under those authorities because the EEOC could have provided more information to the respondent.”).

ENA implies that the charge in this case should be held to a different, more exacting standard because a Commissioner, rather than an aggrieved individual, filed it. ENA Br. at 11. But ENA cites no legal support for this contention either, and there is none. Also, while it is true—as ENA points out—that in other cases, charges have included phrases such as “nationwide” and “all . . . facilities,” id. (citations omitted), the Commission reiterates what it explained in its opening brief: there is no reason to think that the use of such words was necessary to convey the charge’s broad geographic scope in those other cases. See EEOC Br. at 18.

ENA is also plainly wrong to assert that the charge lacks “any specific allegations regarding systemic practices” or a “pattern or practice of discriminatory conduct.” ENA Br. at 9, 14. The terms “systemic” and “pattern or practice” are simply a shorthand way of saying that the alleged discrimination is not “isolated or accidental,” but rather “was the company’s standard operating procedure” because, for example, it resulted from a discriminatory company policy or practice that was widespread. E.g., Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 336 (1977) (internal quotations omitted). Thus, where, as here, a charge alleges “unlawful employment practices” “based upon a review of the employer, including [the] employer’s practices and the employee handbook,” and it identifies a class of “aggrieved individuals” to “include all employees” “affected by the unlawful employment practices,” R.1-2 at p. 1, that charge easily fits the “systemic” or “pattern or practice” mold.

C. ENA is incorrect to the extent it contends that the EEOC had to establish that the same policy applied nationwide in order to engage in a nationwide investigation.

ENA criticizes the EEOC for not “establish[ing] that the same attendance policies apply to every [ENA] facility.” ENA Br. at 20. But in Shell Oil, the Supreme Court rejected any approach that would “oblige the Commission[] to substantiate [its] allegations before [it] initiates an investigation, the purpose of which is to determine whether there is reason to believe those allegations are true.” 466 U.S. at 71. Here, one objective of the investigation is to verify that the allegedly discriminatory attendance policy appearing in the employee handbook does indeed apply companywide. The EEOC had reason to believe that this was so because ENA gave to all employees the handbook in which the policy appeared and the policy itself directed employees to “call the appropriate number below” to report absences, listing seven different phone numbers for each of ENA’s seven facilities in four states. R.6-3 at pp. 21-22; see also EEOC Br. at 8. Thus, the EEOC had ample basis to think, when issuing its subpoena, that the relevant policy applied companywide. And now the accuracy of that suspicion is ever more apparent. But Shell Oil makes clear that the EEOC was not required to “establish[]” this fact in the first instance. Moreover, in other cases in which a company refusing to comply with an EEOC subpoena has similarly tried to “place the cart before the horse,” this Court has rejected such efforts. EEOC v. Kloster Cruise Ltd., 939 F.2d 920, 924 (11th Cir. 1991) (citations omitted).

ENA’s criticism of the EEOC for not “establish[ing]” the nationwide application of its attendance policy further reflects its flawed approach throughout these proceedings. For instance, before the Commission sought to enforce the subpoena, ENA refused to provide nationwide information unless the EEOC “show[ed]” “a particularized need for” such data. R.1-7 at p. 2. But in University of Pennsylvania v. EEOC, 493 U.S. 182 (1990), the Supreme Court declined to adopt a “requirement that the Commission demonstrate a ‘specific reason for disclosure,’ . . . beyond a showing of relevance” because such a rule “would place a substantial litigation-producing obstacle in the way of the Commission’s efforts to investigate and remedy alleged discrimination.” Id. at 194 (citation omitted).

This concern rings true here. The EEOC charge alleged that ENA maintained a discriminatory attendance policy, which ENA has known all along to apply in all its facilities. But instead of turning over nationwide information to the EEOC, as requested, ENA withheld relevant data based on technicalities such as the address included in the charge, and demanded that the Commission “show[]” a “particularized need” for companywide data, R.1-7 at p. 2—thus “plac[ing] a substantial litigation-producing obstacle in the way of the Commission’s efforts to investigate and remedy alleged discrimination,” Univ. of Pa., 493 U.S. at 194.

D. This is not a case in which an investigation must be expanded to obtain companywide data, and ENA’s reliance on out-of-circuit decisions is misplaced.

In addition to arguing that the charge is directed only at Northport, ENA asserts that the EEOC cannot “justify an investigatory expansion.” ENA Br. at 9 (emphasis added). This argument misses the mark for several reasons.

First, the EEOC never argued that it expanded its investigation. There was no need to do so because the charge itself alleged a companywide practice. The Commission might expand the scope of an investigation where it receives an individual charge alleging an isolated instance of discrimination but the investigation yields information suggesting that the isolated instance of discrimination stemmed from a company practice or policy that adversely affected additional employees. See, e.g., McLane Co. v. EEOC, 137 S. Ct. 1159, 1166 (2017) (observing that “the EEOC expanded the scope of its investigation” after learning that the employer subjected the individual charging party to an allegedly discriminatory physical evaluation used nationwide). But that is not the situation here. Rather, as the EEOC explained, “[t]he 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.” EEOC Br. at 21. The allegations in the charge were, from the outset, directed at broad employer practices affecting a class of employees. See R.1-2 at p. 1. Thus, inasmuch as ENA claims that, as a predicate to obtaining companywide data, the EEOC needed to “expan[d]” its investigation, ENA Br. at 9, ENA is incorrect.

ENA likens this case to EEOC v. TriCore Reference Laboratories, 849 F.3d 929 (10th Cir. 2017), and EEOC v. Burlington Northern Santa Fe Railroad, 669 F.3d 1154 (10th Cir. 2012), in which the Tenth Circuit twice held that the EEOC could not “expand an investigation beyond individual charges to seek pattern-or-practice evidence.” TriCore, 849 F.3d at 937-40; see also Burlington N., 669 F.3d at 1159 (similar). In both cases, the Tenth Circuit emphasized that the charges under investigation must contain some “basis to ‘transcend the gap between the pattern and practice investigation’” and the individual claims. TriCore, 849 F.3d at 938 (quoting Burlington N., 669 F.3d at 1158 (citation omitted)).

Here, however, there is no “gap” for the Commission to “transcend” because—unlike the charges at issue in TriCore and Burlington Northern—this charge did not allege isolated instances of discrimination against particular individuals, but rather discriminatory “employer[] practices” against “all employees” affected by the practices evident in the “employee handbook.” R.1-2 at p. 1. This is underscored by the fact that the Burlington Northern court explicitly distinguished the case before it from EEOC v. Kronos Inc., 620 F.3d 287, 297 (3d Cir. 2010), on the ground that—as in this case—Kronos “turned on [a] company-wide use of a test that allegedly facilitated discrimination based on disability.” Burlington N., 669 F.3d at 1158. The Burlington Northern court also recognized that the EEOC would be entitled to companywide information if it had “aggregat[ed] the information it possesses in the form of a Commissioner’s Charge.” Id. at 1159. That is precisely what occurred here.

Indeed, ENA repeatedly conflates the White charge with the Commissioner charge, claiming that the subpoena here is grounded in the former not the latter. See, e.g., ENA Br. at 14 (asserting that the subpoena is based on “only one charge,” i.e., the White charge, that “is now dismissed”). In reality, as ENA must know, the subpoena is based on the Commissioner charge, which came after, and is wholly distinct from, the White charge. See, e.g., R.1-16 (subpoena with charge number matching the Commissioner charge number). Perhaps this case would be analogous to Burlington Northern if, instead of filing a Commissioner charge alleging class-wide violations, the EEOC had used White’s individual charge as the basis for a companywide investigation. But because the EEOC took essentially the opposite approach here, Burlington Northern’s reasoning supports the EEOC, not ENA.

ENA also cites Burlington Northern in support of an argument that the EEOC did not adequately explain the basis for its nationwide investigation during the administrative phase of the case. See ENA Br. at 13-14. It is true that in Burlington Northern, the court faulted the EEOC for waiting until it sought judicial enforcement of the subpoena to inform the employer that it based the subpoena not only on the two individual charges the subpoena mentioned, but also on four other similar charges. See 669 F.3d at 1157. Here, by contrast, the charge allegations concern ENA’s companywide practice and policies, and EEOC informed ENA repeatedly throughout the administrative proceedings that its investigation was based on a Commissioner charge that was “nationwide” in scope. E.g., R.1-5 at p. 1; R.1-6 at p. 1.

The Tenth Circuit’s decision in EEOC v. Centura Health, 933 F.3d 1203 (10th Cir. 2019), is more apposite than either Burlington Northern or TriCore. In Centura Health, the EEOC received eleven charges alleging ADA violations across eight of the employer’s facilities. Id. at 1205. Based on these eleven charges, the EEOC subpoenaed class-wide information about employees working in any of those eight facilities who possessed certain characteristics suggesting that they may have been aggrieved under the ADA. Id. at 1206. The Tenth Circuit affirmed the district court’s decision enforcing the subpoena, distinguishing TriCore and Burlington Northern. Id. at 1207-08. Those cases, the court explained, involved situations in which “the EEOC s[ought] pattern-or-practice evidence based only on individual charges.” Id. But that is quite different, Centura Health reasoned, from a case where the EEOC’s subpoena was rooted in “eleven charges of disability discrimination, most alleging a failure to accommodate across a handful of an employer’s facilities.” Id. at 1209.

So too here the subpoena is based not on an individual charge, but a Commissioner charge alleging discrimination against a class of “all employees” allegedly affected by a policy, R.1-2 at p. 1. And as in Centura Health, the EEOC seeks data limited to those facilities where the policy applies, and thus the allegedly aggrieved individuals work. See 933 F.3d at 1208. Thus, the EEOC’s position here is fully compatible with the Tenth Circuit’s precedents.

Nor does ENA’s position find support in the magistrate judge’s report and recommendation in EEOC v. Austal USA, LLC, No. 1:17-mc-0006-WS-MU, 2017 U.S. Dist. LEXIS 133302 (S.D. Ala. Aug. 18, 2017). Austal, like Burlington Northern and TriCore, involved an individual charge that contained no allegations of class discrimination. Austal, 2017 U.S. Dist. LEXIS 133302, at *2. The magistrate judge rejected the EEOC’s attempt to get data about employees other than the charging party, but it noted that if “the EEOC desires to conduct a broader pattern-or-practice investigation, it is empowered to file a Commissioner’s charge.” Id. at *30-31. Here, the EEOC took the very approach that the Austal judge suggested. Thus, Austal, much like Burlington Northern, actually supports the EEOC’s position, not ENA’s.

II. ENA fails to refute the argument that companywide data might cast light on the allegations in the charge, even assuming the charge is directed only to Northport.

In its opening brief, the EEOC argued that even assuming arguendo that the charge is properly understood as being directed only at the Northport facility, nationwide information would still be “relevant” within the meaning of 42 U.S.C. § 2000e-8(a) because such data “might cast light on the allegations” concerning the Northport facility, Shell Oil, 466 U.S. at 68-69; see also EEOC Br. at 22-32. ENA responds, in conclusory fashion, that the “nationwide data sought would be entirely unhelpful in assessing the disability-related unlawful discriminatory practices alleged in the Commissioner Charge.” ENA Br. at 18. ENA is wrong.

As the EEOC explained, there are at least two ways in which companywide data could be critical to the Commission’s investigation of the Northport-specific information. See EEOC Br. at 24-25. First, companywide data would provide important context and comparative information. Second, if the EEOC finds reasonable cause to believe that ENA has committed ADA violations at its Northport facility, the Commission would be unable to engage in meaningful conciliation without companywide data. Id. at 25; see also generally 42 U.S.C. § 2000e-5(b).

With respect to context and comparative information, in its opening brief, the EEOC articulated the ways in which companywide data may shed light on the charge as limited to Northport, see EEOC Br. at 24-29, and ENA offers no rebuttal to these points. Moreover, in EEOC v. Associated Dry Goods Corp., 449 U.S. 590 (1981), the Supreme Court noted that “information about an employer’s general practices may certainly be relevant to individual charges of discrimination[.]” Id. at 604; see also Blue Bell Boots, Inc. v. EEOC, 418 F.2d 355, 358 (6th Cir. 1969) (“[A]n employer’s ‘pattern of action’ [is] relevant to the Commission’s determination of whether there is reasonable cause to believe that the employer has practiced [a certain type of] discrimination[.]”) (citation omitted) (cited favorably in Shell Oil, 466 U.S. at 69 n.20). If an employer’s “general practices” may be relevant to an individual charge, as Associated Dry Goods made clear, 449 U.S. at 604, it follows a fortiori that such practices may also cast light on a charge alleging class discrimination at a single facility.

Regarding the EEOC’s ability to engage in meaningful conciliation efforts if it does discover ADA violations at Northport, there are at least two ways in which Northport-specific data is likely to be inadequate. First, in Mach Mining, LLC v. EEOC, 575 U.S. 480 (2015), the Supreme Court held that, during conciliation, the EEOC must, among other things, “describe[] both what the employer has done and which employees (or what class of employees) have suffered as a result.” Id. at 494 (emphasis added). But without knowing how ENA’s attendance policy applies at facilities other than Northport, the EEOC will be unable to accurately describe “which employees” have been affected, id., particularly given that employees at the Northport facility represent a small fraction of ENA’s total workforce, see R.6-3 at p. 3; EEOC Br. at 29.

Second, and relatedly, if the EEOC discovers that the no-fault attendance policy in effect at Northport has resulted in disability discrimination, one of the Commission’s chief objectives in any conciliation effort would be to work with ENA to revise its attendance policy to make the policy ADA compliant. See generally, e.g., 42 U.S.C. § 2000e-5(b) (requiring the EEOC, if it finds “reasonable cause to believe that the charge is true,” to “endeavor to eliminate any such alleged unlawful employment practice” (emphasis added)); Blue Bell Boots, 418 F.2d at 358 (“[E]vidence concerning employment practices other than those specifically charged by complainants may properly be considered by the Commission in framing a remedy,” as “the Commission may, in the public interest, provide relief which goes beyond the limited interests of the charging parties.”). But unless the Commission knows whether the same policy applies in facilities other than Northport and, if so, how, it would be attempting to conciliate with only partial, and thus deficient, data. For these reasons, ENA is incorrect that the companywide data the subpoena seeks would be “entirely unhelpful” in assessing the charge’s allegations. ENA Br. at 18. Such information would be not only helpful, but perhaps essential to the EEOC’s ability to meet its duties of investigation and conciliation under 42 U.S.C. § 2000e-5(b).

III. ENA’s passing assertions that the subpoena is “too indefinite, unreasonably burdensome, and has a clear illegitimate purpose,” do not support an alternative ground for affirmance.

Next, ENA advances as alternative grounds for affirmance that the subpoena is “too indefinite, unreasonably burdensome, and has a clear illegitimate purpose.” ENA Br. at 9, 11. ENA’s argument in this regard is flawed for many reasons.

A. ENA’s conclusory assertions that the subpoena is “too indefinite” and “clear[ly] illegitimate” should be deemed waived, and in any event they lack merit.

ENA denounces the EEOC’s subpoena as “too indefinite” and “clear[ly] illegitimate,” id., but fails to offer a single justification for such accusations. As this Court has explained, “[a] passing reference to an issue in a brief is not enough, and the failure to make arguments and cite authorities in support of an issue waives it.” Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316, 1319 (11th Cir. 2012). That principle should apply here.

In any event, far from having an “illegitimate purpose,” the subpoena here serves a core function of the EEOC. As the Supreme Court observed in Shell Oil, Congress made clear in Title VII “that Commissioners could file and the Commission could investigate [charges of systemic discrimination]” because “Congress was aware that employment discrimination was a ‘complex and pervasive’ problem” that required “thoroughgoing remedies” and “unrelenting broad-scale action against patterns or practices of discrimination.” 466 U.S. at 69-70 (citations and brackets omitted). As a result, Shell Oil explained, “it is crucial that the Commission’s ability to investigate charges of systemic discrimination not be impaired.” Id. at 69. And yet, ENA would have this Court hold that the Commissioner charge here, which is directed at employment practices that the company maintains in all its facilities, and may well result in widespread disability discrimination, see, e.g., Holly, 492 F.3d at 1263, is “clear[ly] illegitimate,” ENA Br. at 9. This argument should be rejected out of hand.

Further, ENA’s conclusory statement that the subpoena is “too indefinite” is belied by its actions in this very case. In another part of its brief, ENA acknowledges that it “complied with the subpoena, as limited by the district court, and provided the EEOC with the requested information regarding attendance-related terminations at the Northport facility.” ENA Br. at 3. The subpoena seeks the same data, but for ENA’s other United States facilities. Thus, ENA’s claim of “indefinite[ness]” is disingenuous, ENA Br. at 9, 11, as it knows precisely what the subpoena requests.

B. ENA has not come close to satisfying its burden of showing that compliance with the subpoena would be unduly burdensome.

Finally, ENA asserts that the Commission’s subpoena “unduly burdens” it “and reveals nothing about the compliance of any attendance procedures with the ADA.” ENA Br. at 16; see also id. at 18 (claiming that the subpoena “burdens [ENA] without advancing the EEOC’s investigatory purpose”). This argument, which is scattered throughout ENA’s brief but is never developed, misses the mark.

As an initial matter, ENA bears the burden of demonstrating that the subpoena is unduly burdensome. See, e.g., EEOC v. Maryland Cup Corp., 785 F.2d 471, 476 (4th Cir. 1986) (collecting cases); EEOC v. Quad/Graphics, Inc., 63 F.3d 642, 648 (7th Cir. 1995). The Supreme Court has explained that this inquiry “turns on the nature of the materials sought and the difficulty the employer will face in producing them.” McLane Co., 137 S. Ct. at 1168. ENA has not even argued, much less proven, that it will be “difficult[]” to produce the data that the subpoena seeks. Id. In fact, ENA’s ready production of responsive materials from the Northport facility, upon being directed to do so by the district court, suggests that it would face little difficulty in making similar productions from each of its six other facilities. Regardless, as the Seventh Circuit has explained, “[c]onclusory allegations of burdensomeness are insufficient.” EEOC v. United Air Lines, Inc., 287 F.3d 643, 653 (7th Cir. 2002) (cited with approval in EEOC v. Royal Caribbean Cruises, Ltd., 771 F.3d 757, 763 (11th Cir. 2014)). And yet, conclusory assertions of burden are all that ENA advances here.

Moreover, ENA is incorrect that the information the EEOC’s subpoena seeks would “reveal[] nothing” about ENA’s ADA compliance, and would not “advanc[e] the EEOC’s investigatory purpose.” ENA Br. at 16, 18. The subpoena seeks, for instance, identifying information for any employee ENA discharged from any of its locations “for attendance infractions,” as well as records reflecting such employees’ phone numbers and addresses, “and [the] reason and date of discharge.” R.1-16 at p. 3. These requests aim to obtain, among other things, contact information for potentially aggrieved employees, as well as their employment records, so that the EEOC may interview them and corroborate their stories based on ENA’s personnel files. EEOC investigations are commonly structured in this manner. See generally, e.g., McLane Co., 137 S. Ct. at 1165 (observing that the EEOC’s subpoena sought “the names, Social Security numbers, last known addresses, and telephone numbers of the employees who had been asked to take the [allegedly discriminatory physical] evaluation”). Such an approach is—in the EEOC’s experience—one of the best ways to determine whether company policies or practices result in discrimination, and specifically as to whom. Thus, ENA’s compliance with the subpoena would indeed allow the EEOC to proceed with its systemic investigation and fulfill its statutory mandate to remedy unlawful disability discrimination.

CONCLUSION

For the foregoing reasons and for the reasons identified in the EEOC’s opening brief, the order of the district court should be reversed.

Respectfully submitted,

CHRISTOPHER LAGE

Deputy General Counsel

JENNIfer s. goldstein

Associate General Counsel

anne noel occhialino

Acting Assistant General Counsel

/s/ Philip M. Kovnat

PHILIP M. KOVNAT

Attorney, Appellate Litigation Services

Office of General Counsel

Equal Employment Opportunity Commission

131 M St. NE, Fifth Floor

Washington, DC 20507

(202) 921-2702

philip.kovnat@eeoc.gov

April 1, 2022

[1] This Court may take judicial notice of publicly available docket entries in other cases. See, e.g., Lobo v. Celebrity Cruises, Inc., 704 F.3d 882, 892-93 (11th Cir. 2013).