Statement of Related Cases

There are no prior or related appeals.

This is an action by the Equal Employment Opportunity Commission (“the EEOC” or “the Commission”) seeking enforcement of an administrative subpoena issued under, inter alia, the Americans with Disabilities Act of 1990, as amended, 42 U.S.C. § 12101 et seq. See Appendix, Vol. 1, at 9 (“1A:9”).[1] 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 in turn incorporates 29 U.S.C. § 161(2).

The district court entered an order partially enforcing the EEOC’s subpoena on April 4, 2018. 4A:1085–91. That order was final and resolved all claims as to all parties. Respondent–appellant Centura Health (“Centura” or “the company”) filed a notice of appeal on May 2, 2018. 1A:8; 4A:1092–94. Centura’s appeal is timely under Federal Rule of Appellate Procedure 4(a)(1)(B)(ii), (a)(2), (a)(7).[2] This Court has jurisdiction under 28 U.S.C. § 1291. See EEOC v. Citicorp Diners Club, Inc., 985 F.2d 1036, 1038 (10th Cir. 1993).

Statement of the Issue

Eleven current or former employees of Centura filed charges with the EEOC alleging that the company terminated or disciplined them because of their disabilities and/or failed to grant them reasonable accommodations for their disabilities. The company refused to provide the bulk of the information the EEOC requested when investigating the charges. As a result, the EEOC sought and obtained an order from the district court requiring the company to turn over certain information. Some of that information pertained to certain co-workers who, like the individuals who filed the charges, had been identified by the company as having a disability or had requested an accommodation for a medical condition. The question presented is whether the district court abused its discretion in concluding that the information pertaining to the co-workers is “relevant” to the eleven charges of discrimination within the meaning of 42 U.S.C. § 2000e-8(a).

The district court rulings on this issue appear at 3A:741–42, 4A:1053–54, and 4A:1089–90, and the EEOC’s arguments in the district court on this issue appear at 1A:22–30, 3A:719–23, and 4A:1073–83.

Statement of the Case

A. Statutory and Regulatory Background

The Americans with Disabilities Act of 1990 (“ADA”), as amended, prohibits certain employment practices that “discriminate against a qualified individual on the basis of disability.” 42 U.S.C. § 12112(a). The 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)(4).

Congress has “set[ ] forth an integrated, multistep enforcement procedure” to “enable[ ]” the EEOC to “detect and remedy instances of discrimination” under the ADA and Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., which generally prohibits employment discrimination based on race, sex, and certain other characteristics. EEOC v. Shell Oil Co., 466 U.S. 54, 62 (1984) (internal quotation marks omitted); see 42 U.S.C. § 12117(a) (all powers, remedies, and procedures set forth in specified provisions of Title VII, including 42 U.S.C. §§ 2000e‑5, 2000e-8, and 2000e-9, apply with respect to ADA claims). That process begins with the filing of an administrative “charge” alleging discrimination. A charge may be filed by or on behalf of a person claiming to be aggrieved, or by an EEOC Commissioner, and it need not identify whether the discrimination in question affected only one employee or was part of a broader pattern or practice of discrimination. See id. §§ 2000e-5(b), 2000e-6(e); 29 C.F.R. § 1601.12 (describing required contents of a charge of discrimination).

Once the EEOC receives a charge, the agency “shall make an investigation thereof” to determine whether 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 the employer has as long as, inter alia, the evidence is “relevant to the charge under investigation.” Id. § 2000e-8(a). 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 and ask a district court to enforce compliance with the subpoena. Id. § 2000e-9 (incorporating 29 U.S.C. § 161).

“A district court’s role in an EEOC subpoena enforcement proceeding . . . is a straightforward one.” McLane Co. v. EEOC, 137 S. Ct. 1159, 1165 (2017) (“McLane I”). As pertinent here, when a court assesses whether the materials that the EEOC seeks are “relevant to the charge under investigation,” 42 U.S.C. § 2000e-8(a), it must be “cognizant of the ‘generou[s]’ construction that courts have given the term ‘relevant.’” McLane I, 137 S. Ct. at 1165 (alteration in original) (quoting Shell Oil, 466 U.S. at 68–69). As the Supreme Court has emphasized, courts have granted the EEOC access to “virtually any material that might cast light on the allegations against the employer.” Id. (quoting Shell Oil, 466 U.S. at 69).

B. Factual and Procedural Background

1. The Charges

Centura Health is a health-care organization made up of over twenty facilities, including hospitals and senior residences. See, e.g., 1A:176. Between February 2011 and October 2014, eleven current or former Centura employees filed charges with the EEOC alleging, inter alia, violations of the ADA at five of the company’s facilities and in two of the company’s programs in Colorado.

As pertinent here, at least nine of the individuals who filed charges (“the charging parties”) alleged that Centura had terminated them—or refused to allow them to return to work after medical leave—because of their disabilities or because they requested accommodations for their disabilities. See 1A:38–42 (Tursi); 1A:50–51 (Cruz); 1A:58–61(Keen); 1A:114–15 (Wright); 1A:173 (Evans); 1A:219–25 (Porter); 2A:299–300 (Long); 2A:415–16 (Henderson); 2A:461 (Seifert); cf. 2A:351 (Bennett) (allegation of disability discrimination by a tenth charging party who was terminated, see 2A:356); 1A:71–72 (Rund) (allegation that an eleventh charging party was disciplined on the basis of her disability).

For example, Arlene Tursi, an emergency-room nurse who had worked for over ten years at one of Centura’s hospitals, 1A:38, asserted in her charge that the company had a policy under which employees taking a certain type of medical leave could return to their positions if they were still open at the end of the leave. 1A:39, 41. Tursi alleged that the company transferred a different nurse into her position on the very day she was scheduled to return to work after taking such medical leave. 1A:41. Tursi also claimed that, around the same time, Centura hired a less qualified applicant over Tursi for another emergency-room nurse position, and that Centura later rejected her applications for two other positions to which her manager recommended she apply and for which she was qualified. 1A:41.

Kathy Wright alleged that she had a similar experience. According to her charge, when she returned to work after a short-term disability leave, she requested several accommodations. She asserted that Centura denied some required accommodations, fired her two weeks after she returned to work, and then rejected her application for a different position for which she was qualified. 1A:114–15.

In addition, most of the charging parties, including Kathy Wright, alleged that Centura had unlawfully failed to provide them a reasonable accommodation. See 1A:50–51 (Cruz); 1A:71–72 (Rund); 1A:114–15 (Wright); 1A:173 (Evans); 1A:219–25 (Porter); 2A:299–300 (Long). Sue Evans, for example, claimed in her charge that when Centura transferred her to a different program, it failed to provide her the accommodations it had provided in her former position. 1A:173. Evans alleged that the company then fired her for poor performance that was caused partly by the company’s failure to continue to provide her the accommodations she needed. 1A:173.

As another example, TeriAnn Porter stated in her charge that Centura had criticized or disciplined her various times for behaviors caused by her disability or the medication prescribed for her disability. 1A:221–22, 224. According to Porter, Centura denied her reasonable accommodations, including the accommodation of being required to perform only the duties listed in her job description. 1A:221–25. Porter alleged that she was ultimately fired because of her disability. 1A:221, 225.

2. The EEOC’s Investigation

The EEOC began the process of investigating these charges after it received them. For example, the agency received Tursi’s charge in February 2011 and sent Centura a request for information relevant to her charge that July. 3A:641–42. The EEOC received Cruz’s charge in August 2011 and sent Centura a request for information relevant to her charge the following month. 3A:643–44. Centura consistently refused to produce significant portions of the information that the Commission requested. See, e.g., 3A:668–71, ¶¶ 4.kk–4.ss.

At issue in this appeal is an administrative subpoena that the EEOC issued in December 2014 to obtain numerous pieces of information that the agency had requested but that the company had refused to provide. 3A:590–98. The subpoena, which was expressly based on the eleven charges referenced above, 3A:592, sought, among other things, the personnel and medical files of the eleven charging parties, 3A:592–93, items 2–3.

In addition, as relevant here, items 9 and 18(e) of the subpoena sought specified information about each employee who worked at the same facilities as the eleven charging parties and who, respectively, (1) requested an accommodation due to a medical condition between August 2009 and 2014, 3A:593–94, item 9; or (2) was identified as disabled during that period, 3A:597, item 18(e).[3] In particular, items 9 and 18(e) requested the names and contact information of the individuals in question. 3A:593–94, item 9(a)–(e) & (r)–(u); 3A:597, item 18(e)(1)–(6) & (13)–(16). In addition, item 9 (concerning employees who requested accommodations) principally requested (1) specified information about the individuals’ accommodation requests, including the results of the requests; and (2) specified information about any separation from employment. 3A:593, item 9(j)–(o). Item 18(e) (concerning individuals identified as disabled) principally requested (1) the type of medical condition at issue; and (2) specified information about any discipline or separation from employment. 3A:597, item 18(e)(7), (9)–(12).

The Commission denied Centura’s petition to modify or revoke the subpoena. 3A:600–03, 605–33.

3. District Court Proceedings

The EEOC subsequently filed this subpoena-enforcement action. 1A:1–2. The district court issued an order enforcing the subpoena in part and referring the remainder to a magistrate judge for further proceedings. 3A:738–43. In that order, the district court explained that the company did not challenge many portions of the subpoena, such as the requests for the personnel and medical files of the eleven charging parties. The court thus ordered the company to provide that information to the EEOC. 3A:740–41.

The district court explained that Centura did challenge certain other parts of the subpoena, including items 9 and 18(e). 3A:741; 3A:593–97. The court noted that Centura attacked these and certain other portions of the subpoena on only two grounds—(1) that the information the EEOC sought was not “relevant” to the eleven charges within the meaning of 42 U.S.C. § 2000e-8(a); and (2) that complying with those parts of the subpoena would impose an “undue burden” on the company. 3A:739–40.

The district court determined that the information in dispute is “relevant” to the charges the EEOC is investigating, “particularly given the number of ADA charges the EEOC has received and the widespread geographic distribution of those charges.” 3A:741–42. In reaching that conclusion, the court explained that “courts have generously construed the term ‘relevant’ and have afforded the Commission access to virtually any material that might cast light on the allegations against the employer.” 3A:742 (quoting Shell Oil, 466 U.S. at 68–69). The court was unable, however, to resolve the “undue burden” question. The court therefore referred that issue to a magistrate judge. 3A:742–43.

Over the next nine months, the parties conferred with each other and with the magistrate judge repeatedly in an effort to narrow the issues. Several times, in order to expedite the subpoena-enforcement litigation and reduce the burden on the company, the EEOC agreed to reduce the scope of the information it was seeking. 3A:825, 839; 4A:963. Most relevant here, the EEOC agreed that, of the portions of the subpoena that Centura was challenging, the agency would continue to seek enforcement of only items 9 and 18(e). 4A:963.

To facilitate these discussions, the magistrate judge ordered Centura to give the Commission certain information about a specified electronic database in which Centura stored information about its employees. 3A:744. Using that information, the EEOC identified 880 employees of particular interest to the agency because they (1) had requested a reasonable accommodation; (2) had been identified as disabled and then were disciplined or fired; or (3) had taken medical leave and then were disciplined or fired. 4A:839.

Ultimately, the parties were unable to reach agreement on the materials that the company would provide to the EEOC. 4A:1044–45. The magistrate judge then granted in large part the EEOC’s application to enforce items 9 and 18(e) of the subpoena, the only items that remained at issue. 4A:1044. Specifically, the magistrate judge ordered the company to provide the EEOC with any information responsive to those two items that is either available in electronically searchable sources or that pertains to any of the 880 employees of interest that the agency identified. 4A:1059–60. The magistrate judge noted that “the only types of documents specified in items 9 and 18(e) (and thus compelled here) are accommodation, disciplinary, and separation documents,” explaining that items 9 and 18(e) “do not request the medical files [or] entire personnel files” for all employees falling within the scope of those items. 4A:1059–60.

The magistrate judge concluded that turning over the materials in question would not impose an undue burden on Centura. 4A:1050–52. The judge also noted that Centura’s central contention was that the information in subpoena items 9 and 18(e) is not relevant to the eleven charges, but he noted that the district court had already ruled on the relevance question. 4A:1053–54. The magistrate judge further explained that “items 9 and 18(e) seek information regarding other employees at the same facilities as the individual charging parties, during largely the same time period in which the individual charges alleged discrimination.” 4A:1054. “How Centura treated other employees who requested accommodations (or were identified as having a disability) at the same facilities,” the judge explained, “is directly relevant to whether Centura discriminated against the charging parties on the basis of disability.” 4A:1054.

The district court overruled Centura’s objections to the magistrate judge’s decision, and it ordered Centura to comply with the magistrate judge’s order within 30 days. 4A:1085–91. “Even generously construing” Centura’s objections as a motion to reconsider the court’s prior ruling on the relevance issue, the court “found that it lacks merit.” 4A:1089. The court explained that Centura erred to the extent that it sought reconsideration based on an email it had received from the EEOC explaining that the agency sought to use the disputed information to “gain an understanding of Centura’s practices and procedures regarding the provision of reasonable accommodation.” 4A:1088; 3A:751–52. The court explained that “[p]ractices and procedures are as relevant to investigation of an individual charge as they are to a pattern-or-practice charge.” 4A:1090.

Although the district court ordered Centura to turn over the information covered by its order within 30 days (by May 4, 2018), and although Centura did not obtain a stay of that order, the company has not provided the EEOC with the information.

Summary of Argument

This appeal concerns an investigation by the EEOC into eleven charges filed by Centura’s current or former employees alleging that the company discriminated against them on the basis of disability. In order to facilitate the EEOC’s investigation into the charges, the agency sought and obtained an order from the district court requiring Centura to turn over certain information about other employees at the same facilities as the charging parties who were identified as disabled or who requested accommodations for medical conditions. The district court did not abuse its discretion when it concluded that this information is “relevant” to the eleven charges within the meaning of 42 U.S.C. § 2000e-8(a).

The Supreme Court has repeatedly explained that courts should “generously construe[]” the statutory term “relevant” and grant the EEOC access to “virtually any material that might cast light on the allegations against the employer.” EEOC v. Shell Oil Co., 466 U.S. 54, 68 (1984); see also McLane I, 137 S. Ct. at 1165, 1169. Consistent with this mandate, courts of appeals have held that information about an employer’s general practices with respect to its employees is, in general, “relevant” to a charge alleging that an employer discriminated against an individual employee. At the same time, under this Court’s decisions in EEOC v. Burlington Northern Santa Fe Railroad, 669 F.3d 1154 (10th Cir. 2012), and EEOC v. TriCore Reference Laboratories, 849 F.3d 929 (10th Cir. 2017), a district court does not abuse its discretion if it finds that general-practices evidence is not relevant to an ADA charge when the charge alleges only a “single discriminatory act, . . . , by itself,” and the EEOC fails to “allege[] anything [else] to suggest a pattern or practice of discrimination.” TriCore, 849 F.3d at 939.

Under these standards, the district court acted well within its discretion in determining that the general-practices information it ordered produced is relevant to the eleven disability-discrimination charges filed against Centura. Unlike in Burlington Northern and TriCore, where this Court held that district courts acted within their discretion in concluding that general-practices evidence was not relevant to the investigation of one or two individual disability-discrimination charges, the EEOC here received eleven charges alleging similar ADA violations by Centura, and the district court ruled that the information that the EEOC seeks is relevant to those charges. Furthermore, the EEOC’s request for information at issue here was tailored to the charges, requesting only information about other employees who worked at the same facilities as the charging parties and who were identified as disabled or who requested accommodations for medical conditions. Under the applicable deferential standard of review, this Court should affirm the district court’s judgment.

The information that the district court ordered the company to produce is also relevant to the eleven charges the EEOC is investigating because the information may provide comparator evidence that will help the Commission decide whether it has reasonable cause to believe that Centura unlawfully discriminated against the charging parties based on their disabilities. This comparator-evidence rationale for obtaining the information in dispute offers an independent basis for concluding that the district court’s relevance determination was not an abuse of discretion.

Argument

I. Standard of Review

This Court reviews a district court decision determining whether to enforce an EEOC subpoena for abuse of discretion. McLane I, 137 S. Ct. at 1167–68. “A district court abuses its discretion where it commits a legal error or relies on clearly erroneous factual findings, or there is no rational basis in the evidence for its ruling.” McBride v. Peak Wellness Center, Inc., 688 F.3d 698, 703 (10th Cir. 2012) (quoting Trentadue v. FBI, 572 F.3d 794, 806 (10th Cir. 2009)).

II. The district court acted well within its discretion in concluding that the information in question is “relevant” to the eleven charges the EEOC is investigating.

When the EEOC investigates a charge of disability discrimination filed against an employer, it is entitled to obtain “any evidence” from the employer as long as, inter alia, the evidence “is relevant to the charge under investigation.” 42 U.S.C. §§ 2000e-8(a), 12117(a). The Supreme Court has explained that the EEOC’s “authority to seek and obtain evidence” is “broad,” thereby “‘enabl[ing] the [agency] to make informed decisions at each stage of the enforcement process.’” McLane I, 137 S. Ct. at 1164, 1169 (quoting University of Pa. v. EEOC, 493 U.S. 182, 191 (1990)).

The statutory “relevance” requirement applicable in evaluating EEOC subpoenas “is not especially constraining.” EEOC v. Shell Oil Co., 466 U.S. 54, 68 (1984). Indeed, in Shell Oil, the Supreme Court explained that although the relevance requirement should not be interpreted in a way that renders it a “nullity,” the term “relevant” should be “generously construed” to afford the EEOC “access to virtually any material that might cast light on the allegations against the employer.” Id. at 68. In 2017, the Supreme Court reaffirmed that understanding of “relevance” in McLane I, 137 S. Ct. at 1165, 1169. “At the investigative stage, the EEOC is trying to determine only whether ‘reasonable cause’ exists ‘to believe that the charge is true.’” EEOC v. McLane Co., Inc., 857 F.3d 813, 815 (9th Cir. 2017) (“McLane II”) (quoting 42 U.S.C. § 2000e-5(b)). Accordingly, “the relevance standard in this context sweeps more broadly than it would at trial.” Id.; see also McLane I, 137 S. Ct. at 1168; EEOC v. Randstad, 685 F.3d 433, 448 (4th Cir. 2012).

As explained earlier on pages 5–7, this case involves eleven charges filed by current or former Centura employees alleging, inter alia, that the company discriminated against them by firing or disciplining them because of their disabilities and/or by refusing to grant them reasonable accommodations required by the ADA.[4] At issue is the district court’s decision to partially enforce items 9 and 18(e) of the EEOC’s subpoena.^{^[5]} As described in more detail supra on pages 8–9, items 9 and 18(e) requested specified types of information about all employees working in the same facilities as the charging parties between August 2009 and 2014 who (1) requested an accommodation due to a medical condition; or (2) were identified as disabled. 3A:593–94, ¶ 9, 3A:597, ¶ 18(e). Principally, items 9 and 18(e) requested identifying information for such employees and certain information about any discipline or separation from employment. Id. Item 9 also requested documentation concerning any requests for accommodations, including the results of any such requests. 3A:593–94, ¶ 9. In order to avoid imposing an undue burden on Centura, the district court modified the subpoena in part, directing Centura to produce information identified in items 9 and 18(e) only if it appeared in electronically searchable databases or pertained to certain employees of interest that the EEOC had previously identified. 4A:1053, 1059–60; see supra pp. 10–12.^{^[6]}

The district court did not abuse its discretion in concluding that the information the EEOC sought in items 9 and 18(e) of the subpoena is relevant to the eleven charges of discrimination against Centura that the EEOC is investigating. That information is relevant for at least two reasons, each of which independently supports the district court’s ruling. First, the information sought “might cast light” on whether Centura has—or does not have—a pattern, practice, or policy of unlawfully discriminating against individuals with disabilities, including the eleven charging parties. Shell Oil, 466 U.S. at 68. Second, and relatedly, the information may allow the EEOC to identify “comparators,” thereby assisting the EEOC in its efforts to determine whether the employment actions at issue here were taken on the basis of disability.

A. The disputed information is relevant to the eleven charges because it might cast light on whether Centura has a pattern, practice, or policy of unlawfully discriminating against individuals with disabilities.

1. It is well established that evidence of a pattern, practice, or policy of unlawfully discriminating against individuals on the basis of disability or some other protected characteristic can be used at trial to help prove that any given individual was subjected to such unlawful discrimination. In McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), for example, the Supreme Court held that an individual seeking to prove that his employer took an employment action against him based on his race may rely, at least in part, on his employer’s “general policy and practice with respect to minority employment.” Id. at 804. The Court explained that “statistics as to [the employer’s] employment policy and practice may be helpful to a determination of whether [the company’s challenged employment action] . . . conformed to a general pattern of discrimination against blacks.” Id.; see also, e.g., Young v. United Parcel Serv., Inc., 135 S. Ct. 1338, 1355 (2015) (quoting McDonnell Douglas’s language about the probativeness of the employer’s “general policy and practice”); EEOC v. Associated Dry Goods Corp., 449 U.S. 590, 604 (1981) (“Statistics and other information about an employer’s general practices may certainly be relevant to individual charges of discrimination . . . .”); Jones v. United Parcel Serv., Inc., 502 F.3d 1176, 1188–89 (10th Cir. 2007) (holding that the employer’s allegedly discriminatory policy was relevant to the plaintiff’s individual ADA claims).

A fortiori, except in the circumstances noted below on pages 23–26, evidence about an employer’s general practices is relevant to individual charges of discrimination under the “‘generou[s]’ construction” of the relevance standard applicable when the EEOC investigates charges of discrimination, 42 U.S.C. § 2000e-8(a). McLane I, 137 S. Ct. at 1165 (alteration in original) (quoting Shell Oil, 466 U.S. at 68–69). Many courts of appeals evaluating EEOC subpoenas in Title VII and ADA cases have accordingly required employers to produce general-practice information concerning employees who did not file charges. As the Seventh Circuit explained in EEOC v. Konica Minolta Business Solutions U.S.A., Inc., 639 F.3d 366 (7th Cir. 2011), “information concerning whether an employer discriminated against other members of the same class for the purposes of hiring or job classification may cast light on whether an individual person suffered discrimination,” and the EEOC is “authorized to consider . . . the overall conditions in the workplace.” Id. at 369 (individual Title VII charge alleging race discrimination); see also infra p. 24 (discussing Konica Minolta).

The Ninth Circuit’s recent decision in McLane II underscores the relevance of general-practice information concerning other employees. The charging party there claimed that her employer had discriminated against her on the basis of sex in violation of Title VII. When she returned from maternity leave, the company refused to permit her to return to her former position, allegedly because she failed a physical strength test. McLane II, 857 F.3d at 814–15. While investigating her charge, the EEOC subpoenaed identifying information for all employees who had taken the test. Id. at 815. The Ninth Circuit held the subpoena should be enforced. The court ruled that identifying the other employees would allow the EEOC to contact them, and contacting them

“might cast light” on the allegations against [the employer]—whether positively or negatively. To take but one example, the EEOC might learn through such conversations that other female employees have been subjected to adverse employment actions after failing the test when similarly situated male employees have not. Or it might learn the opposite. Either way, the EEOC will be better able to assess whether . . . [the employer’s] use of the strength test discriminates on the basis of sex.

Id. at 815–16 (quoting Shell Oil, 466 U.S. at 69).

Similarly, Blue Bell Boots, Inc. v. EEOC, 418 F.2d 355 (6th Cir. 1969)—which the Supreme Court approvingly cited in Shell Oil, 466 U.S. at 68–69 & n.20—rejected an employer’s contention that “the evidence sought by the Commission is not relevant to the charges under investigation because ‘it extends to records concerning every employee in every category of employment.’” Blue Bell Boots, 418 F.2d at 358 (quoting the employer). The Sixth Circuit explained that “[w]e consider an employer’s ‘pattern of action’ relevant to the Commission’s determination of whether there is reasonable cause to believe that the employer has practiced racial discrimination.” Id.; see also Circle K Corp. v. EEOC, 501 F.2d 1052, 1055 (10th Cir. 1974) (information about all employees and applicants was relevant to the individual charge of national-origin discrimination).

Courts of appeals have required employers to give the EEOC general-practice evidence about co-workers not just in Title VII cases, but also in ADA cases. Indeed, in EEOC v. United Parcel Services, Inc., 859 F.3d 375 (6th Cir. 2017), the Sixth Circuit noted that it had previously allowed the EEOC to obtain evidence of “patterns” of discrimination in cases alleging race discrimination and explained that it “s[aw] no reason to hold differently with respect to discrimination on the basis of disability.” Id. at 378. Granting the EEOC access to such general-practice evidence in ADA cases is also consistent with decisions of this and other courts holding that the EEOC may obtain information about an ADA charging party’s co-workers when such evidence could bear on the charges under investigation. See, e.g., EEOC v. Dillon Cos., 310 F.3d 1271, 1274–77 (10th Cir. 2002) (enforcing EEOC subpoena seeking information about employees in other positions to assist the agency in determining whether one of those positions should have been offered as a reasonable accommodation); Randstad, 685 F.3d at 450 (enforcing EEOC subpoena seeking information about other positions and employees to assist the agency in evaluating whether a particular job requirement was necessary).

Under this well-established precedent, it was not an abuse of discretion for the district court to conclude that the information at issue in this appeal is “relevant” to the eleven charges under investigation for purposes of 42 U.S.C. § 2000e-8(a). That information—basic information about other individuals who were employed at the same facilities as the charging parties and were identified as disabled, including information about any accommodation requests and any discipline or separation from employment, see supra pp. 8–9—will help the EEOC determine whether Centura engaged in any unlawful patterns or practices when it acted on requests for accommodations or fired or disciplined individuals with disabilities. Such general-practice evidence then could be used to bolster—or undermine—the eleven charges under investigation here, which similarly allege that Centura denied the charging parties reasonable accommodations and/or fired or disciplined them because of their disabilities.

To be sure, in EEOC v. Burlington Northern Santa Fe Railroad, this Court held that although “[a]ny act of discrimination could be part of a pattern or practice of discrimination, . . . not every charge of discrimination warrants a pattern or practice investigation.” 669 F.3d 1154, 1157–58 (10th Cir. 2012). At issue in Burlington Northern was a district court decision declining to enforce an EEOC subpoena grounded on just two individual charges alleging discrimination based on perceived disability in Colorado.^{^[7]} Id. at 1155–56. The subpoena required the production of all of the employer’s computerized or machine-readable files from a particular period that contained electronic data about or affecting any current or former employees “throughout the United States.” Id. This Court ruled that the district court did not abuse its discretion in concluding that this “incredibly broad request” for nationwide information was not relevant to the two individual charges “filed by two men who applied for the same type of job in the same state.” Id. at 1157–59.

Significantly, however, Burlington Northern noted that enforcement of the EEOC’s subpoena might have been appropriate had the subpoena been limited to information about the company’s employees in Colorado, like the agency’s subpoena in this case. Id. at 1158. The Court reached that conclusion in the course of distinguishing Konica Minolta, discussed above. Burlington Northern explained that “while [Konica Minolta] permitted the EEOC to conduct what amounted to a pattern or practice investigation based on an individual allegation of racial discrimination,” the EEOC in that case had “sought information pertaining to other offices in [a limited geographic] area,” and “racial discrimination is by definition class discrimination.” Id. at 1158. Here, as in Konica Minolta, the EEOC’s subpoena covers a limited geographic area—only facilities at which the charging parties worked, all of which are located in Colorado. See supra p. 5. In addition, as in Konica Minolta, the type of disability discrimination alleged here is also “class discrimination”: the eleven charging parties alleged that they were subject to adverse treatment on account of their status as individuals with disabilities.

This Court’s subsequent decision in EEOC v. TriCore Reference Laboratories, 849 F.3d 929 (10th Cir. 2017) (“TriCore”), provides further support for the district court’s relevance determination here. In TriCore, the EEOC received a single charge alleging that an individual had been denied an accommodation and then fired because of her pregnancy and her disability. Id. at 934. The employer responded that it had not violated the ADA because it had offered a reasonable accommodation: the opportunity to apply for other positions in the company. Id. The employer’s response “led the EEOC to suspect” that the employer had a “companywide policy and/or practice” of refusing to provide reassignment as a reasonable accommodation, although the employer’s response itself provided no indication that any such policy or practice existed. Id. at 934 (quoting appendix), 939. The Commission subpoenaed, inter alia, a list of employees during a specified period who requested an accommodation for a disability, and it argued that such information was relevant to “determin[ing] whether [the employer] had a pattern or practice of violating the ADA.” Id. at 934, 937. The TriCore district court viewed the relevance question as a “close call,” but it ultimately held that this information was not relevant to the charge under investigation. Id. at 935 (quoting appendix).

This Court held that the district court did not abuse its discretion in declining to compel the production of this information. In reaching that conclusion, the Court emphasized that “[a] plaintiff may state a claim of company-wide discrimination by showing that an employer has a pattern or practice of discrimination.” Id. at 937. The Court noted, however, that there, as in Burlington Northern, the EEOC’s subpoena “referenced only the individual charge and did not mention ‘any other charging party, an additional charge . . . , or anything else’ that might suggest the EEOC was investigating an additional charge that [the employer] had a pattern or practice of discrimination.” Id. at 938–39 (quoting Burlington Northern, 669 F.3d at 1157). Indeed, the TriCore Court explained, the EEOC had “not alleged anything to suggest a pattern or practice of discrimination” beyond the employer’s failure to accommodate the charging party. Id. at 939 (emphasis added). Because Burlington Northern had held that “a single discriminatory act does not, by itself, warrant a broader pattern-or-practice investigation,” TriCore concluded that “the district court did not abuse its discretion in finding [that the employer’s] alleged violation of the ADA—without more—was insufficient to warrant the EEOC’s expanded investigation.” Id.

Here, unlike in TriCore and Burlington Northern, the EEOC grounded its subpoena in eleven charges of disability discrimination filed against the same employer. Most of the charging parties alleged that they were fired or disciplined because of their disabilities, and most also alleged that they were denied accommodations mandated by the ADA. See supra pp. 5–7. Collectively, these eleven charges “suggest a pattern or practice of discrimination” and thus warranted an expanded investigation into the employer’s practices at the same facilities that employed the charging parties. See TriCore, 849 F.3d at 939. Moreover, unlike in TriCore and Burlington Northern, the question in this appeal is whether a district court abused its discretion in concluding that specified information is relevant to the charges under investigation. Particularly under that deferential standard of review, the district court’s ruling should be affirmed.

2. Centura notes that the EEOC has “repeatedly admit[ted] that it wishes to investigate whether Centura is engaged in a pattern or practice of discrimination.” Brief for Respondent–Appellant (“Br.”) 24. Centura is quite right, but as the district court explained, there is nothing improper about that admission. To the contrary, for all of the reasons identified above, the EEOC was entitled to the general-practice evidence it sought here because that evidence is directly relevant to the eleven charges under investigation. That such evidence could also potentially be relevant to a hypothetical charge expressly alleging a pattern or practice of discrimination does not render it irrelevant to the eleven charges under investigation. See, e.g., EEOC v. UPMC, 471 F. App’x 96, 100 (3d Cir. 2012); 4A:1054–55, 1090.

Centura’s related attempt to brand the EEOC’s subpoena an improper “fishing expedition,” e.g., Br. 25, rests on a misunderstanding of the relationship between the information the EEOC seeks and the eleven charges under investigation. Rather than casting a wide net that will necessarily sweep in information with no bearing on the eleven charges in question, the challenged portion of the EEOC’s subpoena is narrowly tailored to capture only information about certain general practices at the charging parties’ facilities during the timeframe at issue in the eleven charges—the company’s practices terminating or disciplining individuals with disabilities and its practices responding to requests for accommodations for medical conditions, see supra pp. 7–9. Under the well-established precedent discussed above on pages 19–23, such general-practices information is directly “relevant” to the eleven charges under investigation because it could support—or undermine—the disability-discrimination and reasonable-accommodation allegations of the charging parties. In any case, an employer’s mere assertion that an EEOC investigation amounts to a fishing investigation does not render a related subpoena request unlawful, and it certainly does not render a district court decision enforcing the subpoena an abuse of discretion.

Centura notes that it received a letter from the EEOC in 2012 stating that the investigation into one of the charges “may include like and related allegations by other aggrieved individuals involving bases and/or issues not directly affecting the Charging Party, as well as those like and related issues not alleged in the charge,” 3A:909 (emphasis omitted). See Br. 28. By its terms, however, that letter merely described how the investigation into one of the charges “may” play out, and the letter clearly has no bearing on whether the particular information that the EEOC later subpoenaed is relevant to the eleven charges of discrimination the agency is investigating. 3A:909.

Centura argues that “where there is no pattern or practice charge, a pattern or practice investigation is not justified by the fact that, if a pattern or practice of discrimination could be uncovered, it might support the prosecution of individual claims.” Br. 14; see also, e.g., Br. 27, 32–33, 35; cf. Br. 22. As an initial matter, although Centura repeatedly refers to “pattern or practice charges,” e.g., Br. 1, 4, 14, 24, it bears emphasizing that the Commission does not require a charge to specify whether the alleged discrimination affected only a single individual or was part of a broader pattern or practice of discrimination. See 29 C.F.R. § 1601.12(b) (charge need only “describe generally the action or practices complained of”); see also Shell Oil, 466 U.S. at 67 & n.19 (statute “expressly delegates to the EEOC responsibility to determine the form and content of charges of discrimination”). There is no separate “pattern-or-practice” charge form, nor is there a “pattern-or-practice” box to check on the standard EEOC charge form. See, e.g., 1A:38 (charge form used by one of the charging parties here). Moreover, the same administrative procedures apply to all types of charges, including charges that do expressly allege a broader pattern or practice of discrimination. See 42 U.S.C. §§ 2000e-5(b), 2000e-6(e).

Nor is Centura correct to the extent that it contends that the EEOC may not rely on a general-practices rationale for obtaining evidence unless the charge at issue expressly alleged a pattern or practice of discrimination. Quite to the contrary, the precedent discussed above makes clear that general-practices evidence is generally relevant to charges of discrimination concerning individual employees, regardless of whether the charges expressly alleged a pattern or practice of discrimination. See supra pp. 19–23; see also, e.g., EEOC v. Schwan’s Home Serv., 644 F.3d 742, 748 (8th Cir. 2011) (“Because the EEOC’s investigation into [the charging party’s] charge of individual gender discrimination revealed potential systemic gender discrimination, the EEOC had the authority to subpoena information relevant to systemic gender discrimination even absent a valid systemic charge . . . .”). A contrary holding would significantly impair the EEOC’s ability to investigate charges of discrimination, given that charging parties may not always be aware of whether the discrimination they allege is part of a broader pattern or practice of discrimination, cf. EEOC v. Kronos Inc., 620 F.3d 287, 300 (3d Cir. 2010), and yet such general-practices information plainly bears on the allegations of discrimination concerning the individual.

As a narrow exception to the rule that general-practices evidence is relevant to charges of discrimination concerning individual employees, TriCore explained that, under Burlington Northern, “a single discriminatory act does not, by itself, warrant a broader pattern-or-practice investigation.” 849 F.3d at 939 (emphasis added); see also Burlington Northern, 669 F.3d at 1157–58 (explaining “not every charge of discrimination warrants a pattern or practice investigation” (emphasis added)). As explained more fully on pages 7–9 and 19–23, however, the subpoena here was based on eleven charges of disability discrimination, charges that collectively justified the Commission’s request for information about Centura’s general practices. At a bare minimum, the district court’s conclusion to this effect was not an abuse of discretion.

Centura contends that if pattern-or-practice evidence can be relevant to charges that do not expressly allege a pattern or practice of discrimination, there was no need for Congress to amend Title VII in 1972 to authorize the EEOC to investigate “charges of a pattern or practice of discrimination,” 42 U.S.C. § 2000e-6(e). Br. 18, 31–32, 35–36. But Congress added § 2000e-6(e) at the same time that it added § 2000e-6(c) and (d), which transferred to the EEOC the Attorney General’s authority to bring suits alleging a pattern or practice by employers. See Equal Employment Opportunity Act of 1972, Pub. L. No. 92-261, § 5, 86 Stat. 103, 107; see generally Gen. Tel. Co. v. EEOC, 446 U.S. 318, 328 (1980). Given this context, it is plain that Congress added § 2000e-6(e) to make clear that the EEOC may investigate charges alleging a pattern or practice of discrimination, and to specify that such charges should be processed in accordance with the procedures applicable to all other types of charges. See Shell Oil, 466 U.S. at 69–70 & n.24.

By clarifying that the EEOC may investigate and act on charges expressly alleging patterns and practices of discrimination, Congress in no way evinced an intent to limit the type of evidence that the EEOC may obtain when investigating other types of charges. Quite to the contrary, as Shell Oil explained, “[i]n 1972, Congress undoubtedly was aware of the manner in which courts were construing the concept of ‘relevance’ and implicitly endorsed it by leaving intact the statutory definition of the Commission’s investigative authority.” 466 U.S. at 69. Significantly, in that same discussion, Shell Oil approvingly cited the Sixth Circuit’s pre-1972 decision in Blue Bell Boots, which, as explained above, held that “an 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 racial discrimination” with respect to charges concerning individuals, 418 F.2d at 358. See Shell Oil, 466 U.S. at 69 & n.20.

Finally, Centura urges this Court to rely on what it calls “recent legislative history.” Br. 23–24. Specifically, the company quotes from four sentences of an article by journalist Patrick Dorrian about a House subcommittee hearing held in 2017. Br. 23–24. Two of those sentences allegedly describe statements by the subcommittee chair, and the other two purportedly recount statements by a witness testifying on behalf of the Equal Employment Advisory Council, which Dorrian describes as an “employer advocate.” Compare Br. 23–24, with Patrick Dorrian, “Time for the EEOC to Move in a New Direction?” Labor & Emp’t on Bloomberg Law, May 24, 2017, available at https://www.bna.com/time-eeoc-move-n73014451441 (also describing statements of a witness supporting the EEOC’s approach).

As explained above, Congress enacted the statutory provisions at issue in this appeal in 1964 and amended them in 1972. Statements by a single legislator and a single lobbyist made during a hearing forty-five years later do not constitute meaningful legislative history, particularly where the hearing did not lead to any statutory amendments or even a proposed bill. See, e.g., Mich. United Conservation Clubs v. Lujan, 949 F.2d 202, 209 (6th Cir. 1991) (relying on “the many decisions that have stressed that the post-enactment statement of a member of Congress is not part of the legislative history of a statute”); Cont’l Can Co. v. Chicago Truck Drivers Union (Indep.) Pension Fund, 916 F.2d 1154, 1157 (7th Cir. 1990) (similar). Instead, as Shell Oil held, the pertinent legislative history indicates congressional endorsement of the same “relevance” standard that the district court properly applied in this case.

B. The disputed information is relevant to the eleven charges because it may allow the EEOC to identify pertinent “comparators.”

1. Although this Court need not reach the question if it affirms the district court’s decision based on the general-practice rationale just discussed, the Court can also affirm the district court’s decision on an independent basis—that the disputed information is relevant to the eleven charges under investigation because it may provide the EEOC with useful “comparator” evidence.

It is well established that an individual asserting a disparate-treatment discrimination claim may rely upon “comparator evidence” to prove her case. TriCore, 849 F.3d at 941. Such an individual may compare the experiences of (1) other individuals similarly situated to herself in all relevant respects, including the protected characteristic; and (2) other individuals similarly situated to herself in all relevant respects other than the protected characteristic. See id. Any differential treatment of the two groups is highly probative of unlawful disparate treatment based on the protected characteristic. See id.; see also, e.g., Young, 135 S. Ct. at 1344–45, 1354–55; Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80–81 (1998).

In accordance with these principles, this Court and many other courts have held that the EEOC may obtain comparator evidence when conducting its investigations, explaining that such evidence can be “relevant” to a charge alleging disparate treatment within the meaning of 42 U.S.C. § 2000e-8(a). In TriCore, for example, as already noted, a pregnant employee with a disability filed a charge with the EEOC alleging that she was discriminated against on the basis of sex and disability when she was denied an accommodation and then fired. 849 F.3d at 934. The EEOC issued a subpoena requiring her employer to turn over, inter alia, a list of employees who were pregnant during a specified time frame, together with information about whether such employees had requested or received an accommodation. Id. at 935.

The TriCore Court determined that this request for information about other pregnant employees “may seek information that is potentially relevant to [the charging party’s individual] charge” within the meaning of § 2000e-8(a). Id. at 941. The Court explained:

For instance, evidence that other non-disabled, pregnant employees were granted accommodations may tend to prove that [the charging party] was denied an accommodation on the basis of her disability. Also, as suggested in Young, possible evidence that [the employer] accommodated nonpregnant employees, but not pregnant employees, might be relevant to show that a proffered reason for [the charging party’s] termination was pretextual.

TriCore, 849 F.3d at 941–42. Nevertheless, this Court affirmed the district court’s order refusing to enforce the subpoena because the EEOC had failed to advance these relevance arguments in the district court, and the agency’s subpoena was overbroad in that it sought information about pregnant employees who had never sought an accommodation. Id. at 942; see also, e.g., EEOC v. Univ. of N.M., 504 F.2d 1296, 1298–99, 1305–06 (10th Cir. 1974) (upholding subpoena requesting personnel files of other employees in order to help the EEOC locate appropriate comparators).

As in these cases, the disputed information at issue in this appeal is “relevant” to the eleven charges under investigation because such information may provide the EEOC with useful comparators when evaluating the charging parties’ ADA claims. For example, information about whether other individuals identified as disabled and employed at the same facilities as the charging parties were disciplined or fired under circumstances similar to those alleged by the charging parties could tend to support—or undermine—the charging parties’ contentions that they were disciplined or fired because of their disabilities. Similarly, information about whether Centura granted or denied accommodation requests by other individuals with disabilities could inform the agency’s assessment of whether Centura denied the charging parties’ requests for accommodations on the basis of disability and whether the accommodations requested were feasible. The district court’s order partially enforcing the EEOC’s subpoena was thus well within its discretion.

2. Centura argues that the EEOC’s comparator rationale for obtaining the information in question “contradicts the obvious and admitted purpose of the requests, which was to discover other ADA violations.” Br. 15. But the evidence that the EEOC seeks in the course of a given investigation may be relevant for more than one reason, and the EEOC consistently explained in district court that the evidence here was relevant based on general-practice and comparator theories. See, e.g., 4A:1078–80 (noting that “[t]hese are not mutually exclusive purposes”); see also, e.g., 1A: 27–29; 4A:1075–76.

Centura also contends that the comparator rationale cannot justify the EEOC’s request for information about individuals with disabilities because “a comparator would, by definition, be a similarly situated non-disabled person.” Br. 15. But it is well established that courts evaluating comparator evidence may also consider the experiences of similarly situated individuals who share the protected characteristic in question—here, disability. See, e.g., Young, 135 S. Ct. at 1344–45, 1354–55; Oncale, 523 U.S. at 80–81. Consideration of such evidence assists in evaluating whether such individuals received the same treatment as the plaintiff, supporting an inference of discrimination based on the protected characteristic, or whether instead such individuals were treated more favorably than the plaintiff, undermining an inference of discrimination based on the protected characteristic.

Accordingly, comparator evidence concerning similarly situated employees who share the charging party’s protected characteristic is “relevant” within the meaning of § 2000e-8(a). See, e.g., McLane II, 857 F.3d at 815–16 (holding that comparator evidence about the experiences of males and females was relevant to the EEOC’s investigation of an individual sex-discrimination claim). Indeed, such comparator evidence is relevant regardless of whether the EEOC has also subpoenaed comparator evidence concerning similarly situated employees who do not share the charging party’s protected characteristic. In TriCore, for example, this Court concluded that evidence concerning accommodation requests of other pregnant employees may be “relevant” to the charging party’s claim that she was denied an accommodation based on her pregnancy. 849 F.3d at 941–42. Significantly, the Court reached that conclusion without mentioning whether the EEOC also had access to comparator evidence concerning non-pregnant employees, demonstrating that such a consideration was not pertinent to its analysis.

Moreover, by requesting information about only individuals with disabilities and not also initially requesting information about similarly situated individuals without disabilities, the EEOC has lessened the burden imposed on Centura. Indeed, depending on what the EEOC discovers when it reviews the disputed information about other individuals with disabilities, there may be no need for the EEOC to seek and obtain information on similarly situated individuals without disabilities. Cf. EEOC v. Fed. Express Corp., 558 F.3d 842, 855 (9th Cir. 2009) (affirming a district court order enforcing an EEOC subpoena that was limited in nature and contemplated the possibility of broader future requests, explaining that “by requesting [the limited information in question], [the Commission] has refrained from imposing on [the respondent] an overbroad request”); EEOC v. Lockheed Martin Corp., 116 F.3d 110, 114 (4th Cir. 1997) (holding that the agency could, as a first step, subpoena information about the computerized personnel files that the company kept). At a bare minimum, the district court did not abuse its discretion in ordering that the comparator evidence in question be produced.

Conclusion

For the reasons stated above, this Court should affirm the district court’s order partially enforcing the Commission’s subpoena.

[1] Citations in this brief to the appendix take the form “1A:9,” where the first number is the volume number, and any numbers following the colon are page numbers.

[2] The district court should have set out the judgment in a separate document, see Fed. R. Civ. P. 58(a), but it did not do so. By operation of Federal Rule of Civil Procedure 58(c)(2)(B), judgment was therefore deemed entered in September 2018, after Centura filed its notice of appeal. Under Federal Rule of Appellate Procedure 4(a)(2) and (a)(7), however, Centura’s notice of appeal was effective when filed. See Constien v. United States, 628 F.3d 1207, 1211–12 (10th Cir. 2010).

[3] Item 9 named eleven Centura entities, 3A:594, and item 18(e) incorporated the same entities by reference, 3A:597. Some of the entries, however, are duplicative because the charging parties sometimes used different names for the same entities. For example, “Porter Memorial Hospital,” “Porter Hospital,” and “Porter Adventist Hospital” all refer to one hospital: Porter Adventist Hospital in Denver.

After eliminating the duplicates and distinguishing between facilities and programs, the list specifies five facilities (Porter Adventist Hospital in Denver, St. Anthony Hospital in Lakewood, St. Mary–Corwin Hospital in Pueblo, St. Thomas More Hospital in Canon City, and Centura’s headquarters in Englewood) and two programs (the ask-a-nurse program and the health-at-home program). Regardless of the precise number of facilities and programs, it is undisputed that the only entities covered by items 9 and 18(e) are entities at which the charging parties worked. Compare, e.g., 3A:592 with 3A:593; see also 4A:1054 (decision of magistrate judge).

[4] Centura argues that the eleven charges are different from one another in various respects. See Br. 10, 26. Centura’s argument, however, relies solely on a document Centura drafted titled “The Charges,” which describes not the charges, but the company’s version of the events underlying the charges. See Br. 5–10 (discussing the charges and relying exclusively on “The Charges,” 3A:703–06, which in turn relies not on the charges themselves, but rather on the position statements that Centura gave the EEOC in response to the charges).

[5] As noted supra on page 9, the district court also ordered Centura to turn over certain other information to the EEOC, and Centura did not object in district court to producing that information (notwithstanding its failure to voluntarily turn over the information prior to the filing of the subpoena-enforcement action). Centura’s opening brief in this Court likewise mounts a limited challenge to the district court’s decision, contesting only the directive to turn over part of the information described in items 9 and 18(e) of the subpoena. Br. 1, 11–13, 26, 29–30.

[6] Although Centura was required to look through the hard-copy files of the employees of interest, the company was not ordered to produce information about each of those employees. Centura had to produce information only with respect to those employees who (1) requested an accommodation due to a medical condition; or (2) were identified as disabled. See 3A:593–94, ¶ 9; 3A:597, ¶ 18(e); 4A:1059, 1090.

[7] In Burlington Northern, the Commission had asked the district court and this Court to consider in addition four other charges it had subsequently received alleging discrimination by the same employer in other states. This Court refused to consider the other four charges because the EEOC first informed the employer that it was relying on these other charges in the district court and because the agency did not give the district court copies of these other charges. 669 F.3d at 1157. Thus, to the extent that Centura’s brief creates the impression that Burlington Northern held that an EEOC investigation of “an apparent pattern or practice” could not be based on six individual charges, Br. 21, that impression is inaccurate. Burlington Northern held only that the district court did not abuse its discretion in concluding that a nationwide pattern-or-practice investigation could not be based on the two particular charges at issue in that case. 669 F.3d at 1157–59.