Table of Contents
Table of
Authorities................................................................................. ii
Statement of the
Issues........................................................................... 1
Statement Regarding
the Addendum................................................... 2
Statement of
Jurisdiction........................................................................ 2
Statement of the
Case............................................................................. 3
Statement of Facts................................................................................... 4
1. Background................................................................................ 4
2. Proceedings
below................................................................... 17
District Court
Decision.......................................................................... 20
Summary of the
Argument................................................................... 23
Argument................................................................................................. 26
THE DISTRICT COURT COMMITTED REVERSIBLE
ERROR IN REFUSING TO ENFORCE THE PARTS
OF THE COMMISSION’S SUBPOENA SEEKING
PEDIGREE INFORMATION AND MCLANE CO.’S
REASONS FOR TERMINATING CERTAIN
TEST
TAKERS.............................................................................. 26
I. IPCS PCE Test Takers’ Names, Addresses,
Phone Numbers, and Social Security Numbers are
Relevant to the Commission’s Investigation Into
Whether McLane Co.’s Use of Its IPCS PCE Testing
Program Violated Title VII................................................ 26
II. The Commission is Not Required to Make A
Preliminary Showing That the Charge Under
Investigation Has Substantive Merit In Order
to be Entitled to Information Relevant to the
Commission’s
Investigation of That Charge................... 48
III. The Commission is Entitled to Information
Regarding Whether IPCS PCE Test Takers
Were Terminated Because They Failed to
Pass the Test........................................................................ 53
Conclusion............................................................................................... 56
Statement of
Related Cases................................................................. 56
Certificate of
Compliance
Addendum
Certificate of
Service
Table of
Authorities
Cases
Page(s)
B.K.B. v. Maui Police
Dept.,
276 F.3d 1091 (9th
Cir. 2002).............................................. 46, 47
Clady v. County of Los Angeles,
770 F.2d 1421 (9th
Cir. 1985).................................................... 20
Dukes v. Wal-Mart, Inc.,
603 F.3d 571 (9th
Cir. 2010)....................................................... 35
EEOC v. Cambridge Tile
Mfg. Co.,
590 F.2d 205 (6th
Cir. 1979)....................................................... 32
EEOC v. Children’s Hosp.
Med. Ctr. of N. Cal.,
719 F.2d 1426 (9th
Cir. 1983) ............................................. 27, 28
EEOC v. Dial Corp.,
469 F.3d 735 (8th
Cir. 2006)............................................... passim
EEOC v. Fed. Express Corp.,
558 F.3d 842, 844 (9th
Cir. 2009)...................................... passim
EEOC v. Gen. Elec. Co.,
532 F.2d 359 (4th
Cir. 1976)....................................................... 32
EEOC v. Karuk Tribe Hous.
Auth.,
260 F.3d 1071 (9th
Cir. 2001).............................................. 28, 51
EEOC v. Kronos, Inc.,
620 F.3d 287 (3d
Cir. 2010)................................................ passim
EEOC v. McLane Co.,
No. 12-615, Order
(D. Ariz. Apr. 4, 2012)................................. 16
EEOC v. McLane Co.,
No. 12-615, Order (D.
Ariz. Aug. 9, 2012)................................. 20
EEOC v. McLane Co.,
No. 12-2469, Order (D.
Ariz. Nov. 19, 2012)..................... passim
EEOC v. Recruit USA, Inc.,
939 F.2d 746 (9th
Cir. 1991)................................................ 32, 44
EEOC v. Shell Oil Co.,
466 U.S. 54 (1984)..................................................... 29,
49, 50, 52
EEOC v. United Parcel
Serv., Inc.,
587 F.3d 136 (2d
Cir. 2009)........................................................ 32
EEOC v. Waffle House, Inc.,
534 U.S. 279 (2002)...................................................................... 47
Gen. Tel. of the N.W.,
Inc. v. EEOC,
446 U.S. 318 (1980)...................................................................... 32
Int’l Bhd. of Teamsters v.
United States,
431 U.S. 324 (1977)......................................................... 30,
31, 35
Merritt v. Old Dominion
Freight Line, Inc.,
601 F.3d 289 (4th
Cir. 2010)....................................................... 34
Okla. Press Publ’g Co. v.
Walling,
327 U.S. 186 (1946)...................................................................... 28
Pottenger v. Potlatch
Corp.,
329 F.3d 740 (9th
Cir. 2003)....................................................... 30
Prudential Ins. Co. of Am. v. Lai,
42 F.3d 1299 (9th Cir.
1994)....................................................... 27
Rudebusch v. Hughes,
313 F.3d 506 (9th
Cir. 2002)....................................................... 35
Wal-Mart Stores, Inc. v.
Dukes,
131 S. Ct. 2541
(2011)................................................................. 35
Wood v. City of San Diego,
678 F.3d 1075 (9th
Cir. 2012).................................................... 30
United States v. Golden
Valley Elec. Ass’n,
689 F.3d 1108 (9th
Cir. 2012).................................................... 28
United States v. Morton
Salt Co.,
338 U.S. 632 (1950)...................................................................... 28
U.S. E.P.A. v. Aleyeska
Pipeline Serv. Co.,
836 F.2d 443 (9th
Cir. 1988)....................................................... 27
Univ. of Pa. v. EEOC,
493 U.S. 182 (1990)............................................................... 44,
52
Statutes
28 U.S.C. § 1291....................................................................................... 3
29 U.S.C. § 161................................................................................... 2,
27
42 U.S.C. § 2000e-2(k)(1)(A).................................................... 36,
40, 52
42 U.S.C. § 2000e-5(b)........................................................................... 26
42 U.S.C. § 2000e-8(a)........................................................................... 26
42 U.S.C. § 2000e-9........................................................................... 2,
27
Rules and Regulations
29 C.F.R. § 1601.12(a)-(b)..................................................................... 46
29 C.F.R. § 1607.2(A)............................................................................. 40
29 C.F.R. § 1607.2(B)............................................................................. 41
29 C.F.R. § 1607.4(D)............................................................................. 20
29 C.F.R. § 1607.14(A)........................................................................... 41
29 C.F.R. § 1607.14(C)(4)...................................................................... 42
Federal Rule of Civil Procedure 58(a)................................................... 3
Federal Rule of Civil Procedure 58(c)(2) .............................................. 3
Federal Rule of Appellate Procedure 4(a)(2)........................................ 3
Federal Rule of Appellate Procedure 4(a)(7)(A)(ii).............................. 3
Statement of the Issues
Damiana
Ochoa filed a charge with the U.S. Equal Employment Opportunity Commission
(“Commission”) alleging that her former employer, McLane Sunwest, a wholly
owned subsidiary of McLane Company, Inc. (“McLane Co.”), violated Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (Title VII), by
using a physical capacity strength test to discriminate against her on the
basis of her sex. Ochoa also alleged that the test is used company-wide. The
Commission attempted to investigate Ochoa’s charge, and to that end subpoenaed
information from McLane Co. that, in relevant part, would enable the Commission
to contact individuals who had been subjected to the test, and to better
understand why McLane Co. had terminated the employment of some test takers.
The district court refused to enforce the subpoena in part. The issues
presented by this appeal are:
I. Did the District Court commit reversible error in concluding that
contact information and other personally identifying information for test
takers was irrelevant to the Commission’s investigation?
II. Did the District Court commit reversible error in concluding that
the Commission could not have access to contact information and other personally
identifying information for test takers, unless and until the Commission made a
preliminary showing that the test in fact constituted systemic discrimination
in violation of Title VII?
III. Did the District Court err in refusing to enforce the part of the Commission’s
subpoena seeking information regarding the reasons McLane Co. decided to
terminate the employment of certain test takers?
Statement Regarding the Addendum
This
brief includes an attached Addendum, located after the Certificate of Compliance
and before the Certificate of Service. This Addendum contains verbatim copies,
with appropriate citation thereto, of each pertinent statute and regulation
referenced in this brief.
Statement of Jurisdiction
The Commission filed this Title VII subpoena enforcement action in the
United States District Court for the District of Arizona. The district court
had subject matter jurisdiction over this action pursuant to Section 710 of Title VII, 42 U.S.C. § 2000e-9, which
incorporates the investigatory powers of the National Labor Relations Board, as
codified at 29 U.S.C. § 161, including that statute’s grant of jurisdiction to
all United States district courts to enforce administrative subpoenas.
On November 19, 2012, the district court entered its final order in this
action, but did not subsequently enter final judgment on a separate document as
required by Federal Rule of Civil Procedure 58(a). See Excerpts of
Record (“ER”) 1 (Order), 138 (docket sheet). As such, the district court’s November
19, 2012, order became final and appealable 150 days later, on April 18, 2013,
by operation of Federal Rule of Civil Procedure 58(c)(2) and Federal Rule of
Appellate Procedure 4(a)(7)(A)(ii). The Commission filed its notice of appeal
from the district court’s November 19, 2012, order on January 17, 2013, which,
by operation of Federal Rule of Appellate Procedure 4(a)(2), is treated as if
it had been filed on the date of entry of the November 19, 2012, order. This
Court has jurisdiction over this appeal pursuant to 28 U.S.C.
§ 1291, which
provides the Circuit Courts of Appeals with jurisdiction over appeals from the
final decisions of United States District Courts.
Statement of the Case
The
Commission is seeking to enforce an administrative subpoena it has issued to
Respondent McLane Co. in regard to the Commission’s investigation into whether
McLane Co.’s use of a physical capacity strength test to make certain
employment-related decisions discriminates on the basis of sex in violation of
Title VII. ER 127-28. McLane Co. has refused to comply with parts of the
Commission’s subpoena. Specifically, it has refused to provide the names, last
known addresses, phone numbers, and social security numbers of employees and
applicants for employment who had been required to take the test, as well as the
reasons why McLane Co. had terminated the employment of employees who took the
test. ER 129.
On August 14, 2012, the Commission filed in the district court its
application for an order to show cause why the subpoena should not be enforced,
and on August 22, 2012, the court granted the application. District Court
Docket Numbers 1, 4. On November 16, 2012, the court held a show cause
hearing, and on November 19, 2012, issued an order enforcing the subpoena in
part, but also refusing to enforce the subpoena in regard to the aforementioned
categories of information. ER 1-11.
Statement of Facts
1.
Background
McLane
Co. is a national supply chain services company. ER 34-35. McLane Sunwest is
a grocery distribution center located in Goodyear, Arizona, and is a subsidiary
of McLane Co. Id., ER 24-25, 32-33.
Charging
party Damiana Ochoa was hired by McLane Sunwest on May 20, 2000, and was placed
in the position of Selector II/Mezzanine Selector. ER 49. McLane Sunwest
asserted that in that position, Ochoa was “required to perform various physical
tasks” such as “(1) pulling stacks of 25 empty totes to staging [sic] area
(which requires up to 145 lbs. of force); (2) lifting totes off stacks and
placing on [sic] roller belt; (3) pushing/pulling totes up or down the roller
belt; (4) stocking shelves; (5) and lifting/lowering/carrying sliding 40 lb.
wooden pallets.” Id.
On
January 7, 2008, Ochoa filed a charge alleging that McLane Sunwest had
discriminated against her on the basis of her sex (pregnancy) when it required
her to take a “physical capability strength test” upon her return from
maternity leave in late October 2007.
ER 46. Ochoa alleged that she took the required test on three
occasions—November 1, 2007; November 19, 2007; and December 28, 2007—and did
not pass any of these tests. Id.
On
January 11, 2008, the Commission notified McLane Sunwest of Ochoa’s charge, and
on April 25, 2008, McLane Sunwest offered its position statement on the
charge. ER 47-56. In its position statement, the company denied Ochoa’s
allegations and offered its interpretation of the situation. ER 48-56. McLane
Sunwest asserted that in late October 2007, Ochoa was ready to return to work
from her maternity leave “and take the required ‘Return to Work’ test.” ER 50.
McLane Sunwest also offered its version of the events surrounding Ochoa’s
testing and termination for failing the IPCS PCE test after three attempts. ER
51-52.
In
regard to this “return to work” test, the company asserted that “[i]n order to
ensure that employees are capable of safely performing their job, all newly
hired employees, and employees returning from an absence of thirty days or
more, are required to take the Industrial Physical Capability Strength Test.” ER
50. McLane Sunwest subsequently informed the Commission that this testing
policy also applies to employees who seek promotion to another position within
the company that is more physically demanding than the position the employee
currently holds (for example, an employee in a job rated as requiring “medium”
lifting who seeks a job with a “medium-heavy” lifting rating). ER 64. McLane Sunwest
stated that for all job positions at its Goodyear, Arizona facility that
required, as did Ochoa’s position, the employee to perform “physical tasks such
as lifting, pushing, carrying, pulling, or standing for long periods of time,” such
jobs are categorized as requiring “Medium,” “Medium-Heavy” or “Heavy” lifting,
based upon the job’s specific requirements. ER 59. This categorization is
performed by an independent ergonomic expert. ER 100. Ochoa’s job was in the
medium-heavy category. ER 51-52.
The
company stated that it has a policy requiring certain, but not all, individuals
who held or sought such physical jobs to undergo an Industrial Physical
Capability Strength Test, referred to as a “PCE” or an “IPCS test” (“IPCS PCE”)
ER 60-61, 100. McLane Sunwest asserted that the IPCS PCE testing is overseen
by Industrial Physical Capability Services, Inc., a company that “provide[s]
its standardized capability assessments to numerous industrial clients in the trucking,
distribution, airline, manufacturing and utility industries.” ER 50. The IPCS
PCE test is given to individuals at a clinic, where the test takers undergo a
“standardized test that is specific to their jobs” and a corresponding job task
analysis. ER 51.
The company
asserted that the IPCS PCE test is “performed on an isokinetic machine that
focuses on the major muscle groups of the shoulders and legs,” providing
resistance “equal to the force applied against the machine” by the test taker.
Id. The testing company then scores the test taker’s performance based
on what McLane Sunwest characterizes as a “validated mathematical model,” and
then sends the results to the employer. Id.
On
August 24, 2009, the Commission requested additional information pertaining to
McLane Sunwest’s use of the IPCS PCE test, including company policies regarding
the test; information on how test results are interpreted; validation studies
regarding the test; and a list of all job positions covered by the test. ER 57-59.
The Commission also sought information on all test takers, such as each test
taker’s name, gender, date of birth, date of hire, job position, reason for
taking the test, date and result (pass/fail) of the test, and last known home
address and telephone number. ER 58. The Commission also requested similar
information (minus test-related information) regarding all of the company’s
employees. ER 58-59.
On
November 13, 2009, McLane Sunwest responded to the Commission’s request, referring
in part back to its April 25, 2008, position statement and accompanying documents,
and providing additional information regarding its use of the IPCS PCE test. ER
60-67. McLane Sunwest did not, however, provide the requested “pedigree,” or
individual identifying and contact information for test takers and/or employees—i.e.,
their names, addresses, phone numbers, and social security numbers. Instead,
it offered data regarding test takers in its Goodyear, Arizona facility by
reference to a McLane Sunwest-created “Employee ID” number—a unique but
anonymous individual identifier. ER 27-28, 63-64. The company also identified
the gender of the test takers, but, again, only by reference to the McLane
Sunwest-created “Employee ID” number. ER 27-28, 63-64.
On
August 6, 2010, the Commission initiated a nationwide investigation into whether
the use by McLane Co.—the parent corporation of McLane Sunwest—of the IPCS PCE test
violated the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 626 et
seq. (“ADEA”), and informed McLane Co. of such investigation. ER 68-69.
In an accompanying request for information, the Commission asked McLane Co. to
provide more IPCS PCE test-related information, similar to what had been
previously requested from McLane Sunwest, but now on a national scale. ER 70-74.
On
November 9, 2010, in response to correspondence from McLane Sunwest, the
Commission stated that it had decided to broaden the scope of its investigation
into Ochoa’s charge, to include all McLane Co. facilities/locations
nationwide. ER 75. The Commission also presented McLane Sunwest with essentially
the same request for information it had presented to McLane Co. on August 6,
2010—minus the request for the date of birth of test takers, employees, and
applicants. ER 76-80. The Commission asked for information regarding test
takers, including, for the relevant time period from January 1, 2006, to the
present, each such individual’s name, social security number, last known home
address and telephone number, sex; medical condition, date of application, date
of hire or promotion, and job classification upon hiring or promotion, test
date, score, and result (pass/fail), positions held and sought at time of test,
reason test was administered, reason for termination, if applicable, and the
identities of persons involved in the decisionmaking process regarding hiring,
promotion, or termination based on the test results. Id. The
Commission also sought pedigree information for all applicants for jobs that
required the test, all employees who sought promotion to jobs that required the
test, and a list of all employees nationwide during the relevant period,
divided by facility or location. Id.
McLane
Sunwest responded to the Commission’s November 9, 2010, correspondence,
objecting to the expansion of this investigation. ER 81. While McLane Sunwest
provided some of the requested information, it again refused to provide the
individualized information regarding each test taker, employee, and applicant,
as well as the reasons why it terminated any test takers. ER 82-87.
Accordingly,
on February 15, 2011, the Commission issued a subpoena (number PHX-11-32) to
McLane Co. in regard to the Ochoa charge investigation, directing the company
to provide essentially the same information the Commission had requested of McLane
Co. on August 6, 2010, and of McLane Sunwest on November 9, 2010.
ER 89-96.
On
February 22, 2011, McLane Co. petitioned the Commission to revoke or modify the
subpoena.
ER 98. In its petition, McLane Co. reiterated its position that Ochoa had not
been subjected to discrimination, and offered a variety of reasons for why it
should be relieved from complying with the subpoena. ER 99. The company also claimed—without
any supporting evidence—that the Commission’s investigation into whether McLane
Co.’s use of the IPCS PCE test violates the ADEA was initiated by the Commission
“to avoid the statutory limit to investigate Ms. Ochoa’s charge under Title
VII.” ER 101. As to the subpoena’s request for individual information
regarding test takers, the company asserted that such information was
“unnecessary for validating the IPCS test.” ER 102. The company also
repeatedly asserted (again without any evidentiary support) that the
Commission’s request for individual information regarding test takers,
employees, and applicants was simply “a fishing expedition constituting an
abuse of process by the EEOC.” ER 102-10.
McLane
Sunwest did eventually produce what it described as “specific data regarding
the IPCS testing” at McLane Sunwest, in the form of “an excel file containing
the employees’ gender, test date, test reason, job class, job target, whether
the employee met the minimum requirements of the position he or she was testing
for, and the level he or she met.” ER 37. The company did not, however,
provide the pedigree information the Commission had requested for any test
takers, employees, or applicants. See id. (no mention of
providing the Commission with such information). In November 2011, the
Commission informed McLane Sunwest that it had “failed to provide any
data for [the company’s] facilities and locations nationwide,” and did not
provide “the test takers’ name, social security number, last known address and
phone number” and other requested information. ER 39 (emphasis in original).
McLane Sunwest replied that it had provided an “Employee ID” as a unique
identifier for each individual, but that it was “not clear” why the Commission
needed test takers’ names, social security numbers, last known addresses, phone
numbers or other personal identifiers in order to “analyze the validity and/or
impact” of the IPCS PCE test. ER 39-40.
On March
21, 2012, the Commission rejected McLane Co.’s petition to revoke or modify the
subpoena. ER 111-24. In its decision, the Commission noted that during the
course of its investigation into the Ochoa charge it had received other charges
against McLane Co., alleging that the company had subjected those charging
parties to discrimination on the basis of their gender, disability, and/or age
by requiring them to pass a physical test after a leave of absence from their
jobs at McLane Co. ER 112-13. The Commission observed that “[a]s part of the
investigation into Ms. Ochoa’s charge, the EEOC Investigator sought documents
relevant to allegations that [McLane Co.] policies and practices regarding physical
strength tests resulted in discrimination on the basis of sex, pregnancy, and
disability.” ER 113.
The
Commission noted that, although McLane Co. had provided data regarding the
gender and test results of employees who took the test in the company’s grocery
division, “it has failed to provide the names, social security numbers,
addresses and phone number[s] of employees and applicants” and had also failed
to provide information regarding the reasons for terminating test takers. ER
114-15.
The Commission
concluded that the information at issue was within the Commission’s
investigative authority to request and that the request was not unduly
burdensome or an abuse of process. ER 116-22. The Commission added that
McLane Co. had provided:
no explanation
or evidence for its allegations that the subpoena is issued solely to harass
[the company]. Ms. Ochoa’s charge challenges a nationwide policy, pattern, or
practice which effectively prohibits employment of individuals who, like Ms.
Ochoa, failed a physical strength test. Ms. Ochoa had worked as an employee
for eight years before the test effectively foreclosed her ability to return to
work. Given the gravity of the consequences of failing such tests, and [McLane
Co.’s] nationwide use of the tests, the Commission’s investigation is both
warranted and justified.
ER 122. The Commission further
concluded that it was entitled to obtain the requested test taker, employee,
and applicant information. ER 116-24. In particular, the Commission noted that
“[t]he employee and applicant lists are relevant to identifying witnesses,
comparative parties, and/or individuals who may have been subjected to
disparate impact or treatment by [McLane Co.].” ER 122.
On April
10, 2012, McLane Sunwest responded to the Commission’s determination rejecting
the petition. ER 31. The company provided the Commission with nationwide data
regarding test takers in its grocery division, in the same format as it had
previously provided such information regarding test takers in its Goodyear, Arizona
facility—by reference to a McLane Sunwest-created “Employee ID” for each test
taker but without providing such individuals’ names, last known addresses,
phone numbers, or social security numbers.
ER 32-33.
2.
Proceeding below
On August
14, 2012, after McLane Co. and McLane Sunwest failed to provide the test
takers’ individual identifying and contact information as requested in the
subpoena, the Commission initiated this subpoena enforcement action. ER 134-37.
The Commission stated to the court that while McLane Co. had produced some data
and documents, it had “failed to produce other pertinent information and that
failure has delayed and hampered the investigation.” ER 127-28. “More
specifically,” the Commission stated, McLane Co. had not provided “lists of
employees and applicants who have been terminated, demoted, or not hired
because they failed the IPCS test and has not provided the name, social
security number, last known address, phone number, medical condition,
information regarding position held, date and reason for termination” for IPCS
PCE test takers. ER 129.
The
Commission stated that individual contact and identifying information was
necessary to identify the women who had been subjected to an adverse employment
action because of their IPCS PCE test score. ER 130. The Commission also
stated that access to test takers’ social security numbers was relevant because
such information provides “unique identifiers which are necessary to more
accurately analyze and link data,” permitting the Commission to identify
individuals within a given database and clearly distinguish them from other
individuals within that same database. ER 131. The Commission noted that the
company that administers the IPCS PCE for McLane Co. does just that, using
social security numbers to identify and distinguish among test takers in its
database, as does McLane Co. itself, but that McLane Co. had “removed social
security numbers (as well as names and other identifying information) from the
data it has produced to the EEOC.” Id.; see also ER 23 (testing
company’s database includes test takers’ social security numbers); ER 20 (McLane
Co. records employees’ social security numbers in its PeopleSoft database).
The
Commission added that while the data thus far produced by McLane Co. included
“‘employee identification numbers,’ these numbers were recently created by
McLane to respond to the EEOC’s subpoena and the EEOC cannot confirm whether
they are truly unique.” ER 131-32. The Commission further noted that the use
of social security numbers “as a unique identifier allows for accurate
identification of individuals who have taken the IPCS PCE on more than one
occasion reliably in a way that an employee identification number may not,” noting
an error relating to what McLane Co. called “de-duplication”—the process by
which “certain duplicate entries [in the data] were eliminated.” ER 132; see
also ER 125 (McLane Co.’s letter to the Commission regarding the
de-duplication error). The Commission further noted that social security
numbers would help “ensure that individuals within the multiple data sources
can be uniquely identified and their data linked across multiple sources.” ER
132.
The
Commission also noted that McLane Co. had not shown how “compilation of
information such as the contact and identifying information for putative class
members will add a burdensome cost to its normal operating costs,” as McLane
Co. had stated that “compilation and production of the information requested
would impose a ‘significant monetary expense’ on it, but it does not provide a
specific estimate of the cost nor does it compare this cost to its normal
operating expenses.” ER 133. “Moreover,” the Commission added, “it was more
burdensome for McLane to withhold social security numbers, names, and other
identifying information from the IPCS data, than to produce that information.”
Id.
In its
reply memorandum, the Commission explained that “[i]n the instant Title VII
investigation, . . . not only is the EEOC investigating more than a statistical
basis for possible discrimination, but the statistical evidence indicates McLane’s
application of the PCE violates the four-fifths rule with regard to
gender.” ER 16.
The Commission also noted that McLane Co. had “repeatedly state[d]” that it
has agreed to provide nationwide data regarding test takers in its grocery division”
and therefore it was “undisputed in this proceeding that EEOC should receive
nationwide data regarding the grocery division.” ER 17.
District Court Decision
On
November 19, 2012, the court issued its order refusing to enforce the part of
the subpoena seeking IPCS PCE test takers’ pedigree information and McLane Co.’s
reasons for deciding to terminate any test takers. ER 1. After noting that
McLane Co. had not argued that the subpoena’s issuance was procedurally
defective, the court recognized that there was “little dispute that Ochoa is an
‘aggrieved party’ within the meaning of [Title VII] and that the charge gives
the E.E.O.C. jurisdiction to investigate [whether] the IPCS PCE discriminates
on the basis of gender.” ER 5-6.
The court
turned to the relevance of the Commission’s request for information regarding Ochoa’s
sex discrimination claim, observing that the Ochoa charge “alleges that the IPCS
PCE systematically discriminates on the basis of gender, as evidenced by her
three unsuccessful attempts to pass.” ER 8-9. The court rejected McLane Co.’s
argument that the Commission’s request generally was overbroad, approving the
Commission’s subpoena for nationwide [non-pedigree] data from the company’s
grocery division. ER 9. The court concluded that “[g]iven the allegation in
the Ochoa charge that the IPCS test itself discriminates on the basis of gender
and that test is administered nationwide for the grocery division, nationwide
data is necessary.” Id. Thus, the court ordered McLane Co. to provide,
on a nationwide basis, each test taker’s sex; test score; date of testing;
position applied for or reason the test was taken; passing score for the
position requiring the test; and whether the test taker suffered an adverse
action within ninety days of taking the test. ER 9-10.
However,
the court refused to require that McLane Co. provide IPCS PCE test takers’
names, last known addresses, phone numbers, or social security numbers, instead
permitting the company to provide the ordered information by resort to a unique
identification number for each test taking employee or applicant that McLane
Co. itself created and applied. The court declared that pedigree information “is
not relevant at this stage to a determination of whether the IPCS PCE
systematically discriminates on the basis of gender” or “represents a tool of
[gender] discrimination in the aggregate.” ER 8. The court also stated that the
Commission had “provided nothing . . . to allay the concerns raised by McLane
that such data has been requested as a means for trolling for possible
complainants” and that “an administrative subpoena may not be so broad as to be
in the nature of a ‘fishing expedition.’” ER 8-9. The court noted that McLane
Co.’s providing the Commission with test takers’ genders would permit the
Commission “to determine whether the IPCS PCE systematically discriminates on
the basis of gender,” and added that if it does, “[a]t that point, pedigree
information may become relevant to an investigation and the EEOC may find it
necessary to seek such information.” Id.
Further,
despite acknowledging that the Commission had also subpoenaed McLane Co.’s
reasoning for terminating any test takers, the district court did not
specifically address the Commission’s request for this information, and offered
no explanation for not compelling McLane Co. to produce this information. See
generally ER 1-11 (no analysis of information regarding McLane Co.’s
reasons for terminating test takers).
Summary of the Argument
The district court erred in concluding that test takers’ pedigree
information fails to meet this Court’s and the Supreme Court’s
well-established, extremely broad standard of information relevant to a
Commission investigation into a Title VII charge of discrimination. It is well
settled that in its investigations, the Commission is entitled to access
virtually any evidence that might cast light on the allegations presented in the
charge under investigation. It is equally well settled that the scope of a
court’s review of a Commission administrative subpoena is extremely narrow,
compelling enforcement of the subpoena so long as the information sought is relevant
to any lawful purpose of the agency.
In order for the Commission to investigate whether a broadly implemented
company policy and practice, such as McLane Co.’s use of the IPCS PCE test, discriminates
unlawfully against women throughout the company nationwide, the Commission must
be able to contact the individuals to whom the policy has actually been
applied. The district court’s conclusion that IPCS PCE test takers’ individual
identifying and contact information is categorically irrelevant to the question
of whether the test is discriminatory in intent or effect is inconsistent with
the settled law of this circuit. For example, this Court has recognized the importance
of anecdotal evidence to determining whether a testing program (such as the
IPCS PCE test) violates Title VII. As such, the district court’s refusal to
compel McLane Co. to provide the Commission with the information it needs in
order to contact these individuals regarding their experiences with McLane
Co.’s IPCS PCE test constituted reversible error. The court’s ruling is also
inconsistent with this Court’s long established rules regarding the extremely
limited scope of judicial inquiry into the question of whether an
administrative subpoena should be enforced.
The district court also erred when it refused to enforce the Commission’s
subpoena regarding test takers’ pedigree information absent a preliminary
showing by the Commission that the IPCS PCE test in fact systematically
discriminates against women. The court’s imposition on the Commission of such
a merits-showing requirement runs directly counter to Supreme Court precedent that
unequivocally rejects that as a condition precedent to the Commission’s ability
to investigate a charge.
Finally,
the district court’s failure to enforce the subpoena as to McLane Co.’s reasons
for terminating the employment of test takers also constituted reversible
error. In an investigation such as this, where the Commission is attempting to
determine whether the employer’s policy of terminating the employment of employees
who fail to pass a physical capability test violates Title VII, the company’s
reasons for terminating test takers is unquestionably relevant information. The
court offered no explanation for why it failed to order McLane Co. to provide
the Commission with this information, and McLane Co. itself failed meaningfully
to argue that it was irrelevant.
Argument
THE DISTRICT COURT COMMITTED REVERSIBLE ERROR IN
REFUSING TO ENFORCE THE PARTS OF THE COMMISSION’S SUBPOENA SEEKING PEDIGREE
INFORMATION AND MCLANE CO.’S REASONS FOR TERMINATING CERTAIN TEST TAKERS.
I. IPCS PCE Test Takers’ Names, Addresses, Phone
Numbers, and Social Security Numbers are Relevant to the Commission’s Investigation
Into Whether McLane Co.’s Use of Its IPCS PCE Testing Program Violated Title
VII.
Title
VII authorizes the Commission to investigate charges alleging that an employer
is engaged in discrimination in violation of the statute. 42 U.S.C. § 2000e-5(b) (attached at Addendum-3);
EEOC v. Fed. Express Corp., 558 F.3d 842, 844, 849 (9th Cir. 2009)
(citations omitted). Under its congressionally-conferred investigatory powers,
the Commission “shall at all reasonable times have access to, for the purposes
of examination, and the right to copy any evidence of any person being investigated
or proceeded against that relates to unlawful employment practices covered by
[Title VII] and is relevant to the charge under investigation.” 42 U.S.C. § 2000e-8(a) (attached at Addendum-4).
To ensure Commission access to this information, the statute gives the
Commission the authority to issue a subpoena seeking such information, and to
seek enforcement of such a subpoena in the district courts. 42 U.S.C. §
2000e-9 (attached at Addendum-8) (providing the Commission with the
investigatory powers provided by statute to the National Labor Relations Board
at 29 U.S.C. § 161 (attached at Addendum-1)).
This
Court has long recognized that “the scope of judicial inquiry in an EEOC or any
other agency subpoena enforcement proceeding is quite narrow.”
EEOC v. Children’s Hosp. Med. Ctr. of N. Cal., 719 F.2d 1426, 1428 (9th
Cir. 1983) (en banc), overruled on other grounds as
recognized in Prudential Ins. Co. of Am. v. Lai,
42 F.3d 1299 (9th Cir. 1994). “The critical questions are: (1) whether Congress has
granted the authority to investigate; (2) whether procedural requirements have
been followed; and (3) whether the evidence is relevant and material to the
investigation.” Id. (citations omitted). “If these factors are shown
by the agency, the subpoena should be enforced unless the party being
investigated proves the inquiry is unreasonable because it is overbroad or
unduly burdensome.”
Id. (citing Okla. Press Publ’g Co. v. Walling, 327 U.S. 186, 217
(1946)).
This
Court defines “relevance” and “materiality” for this purpose extremely broadly.
“‘[C]ourts must enforce administrative subpoenas unless the evidence
sought in the subpoena is plainly incompetent or irrelevant to any lawful
purpose of the agency.’” Fed. Express, 558 F.3d at 854 (emphasis added)
(quoting EEOC v. Karuk Tribe Hous. Auth., 260 F.3d 1071, 1076 (9th Cir.
2001)). Moreover, “[r]elevancy is determined in terms of the investigation
rather than in terms of evidentiary relevance.” Id. (citing Children’s
Hosp., 719 F.2d at 1428, as emphasizing that in this context, relevance is
determined in relation “to the investigation” (emphasis in original)). This
Court has further described this relevance requirement as “‘not especially
constraining’” and to be “‘generously construed’ to ‘afford[] the Commission
access to virtually any material that might cast light on the
allegations against the employer.’” Id. (quoting in part EEOC v.
Shell Oil Co., 466 U.S. 54, 68-69 (1984) (alterations in original;
emphasis added). Given this extremely broad standard, the information the
Commission sought in its subpoena—IPCS PCE test takers’ names, contact
information, and social security numbers—is relevant to the Commission’s
investigation into whether McLane Co.’s use of the test constituted sex
discrimination in violation of Title VII.
In her
charge of discrimination, Ochoa asserts that when her doctor released her to
return to work following her maternity leave, McLane Sunwest required her to
undergo a physical capability strength test before it would permit her to
return to work. ER 46. Ochoa further asserted that the company gives the test
to all newly hired employees as well as those returning to work from a medical
leave of absence, and that she believed she had been discriminated against on
the basis of her sex (pregnancy) in violation of Title VII when the company
terminated her after she failed the test. Id. On its face, Ochoa’s
charge alleges facts that could, depending on the particular information uncovered
during the Commission’s investigation of the charge, constitute individual sex-based
disparate treatment (if the test was applied to her in a discriminatory manner).
See, e.g., Wood v. City of San Diego, 678 F.3d 1075, 1081 (9th
Cir. 2012) (“Disparate treatment occurs ‘when an employer has treated a
particular person less favorably than others because of a protected trait.’”).
The charge allegations also support an investigation into whether McLane Co.
purposefully used the test generally against female workers in a discriminatory
manner–i.e., into a possible pattern or practice of intentional sex
discrimination. See, e.g., Int’l Bhd. of Teamsters v. United States,
431 U.S. 324, 336 & n.16 (1977) (defining pattern-or-practice
discrimination as when intentional discrimination is the employer’s “standard
operating procedure rather than the unusual practice,” and requiring evidence
of “more than the mere occurrence of isolated or ‘accidental’ or sporadic
discriminatory acts”). The charge likewise would support an investigation into
whether the test has a disproportionate, if unintentional, adverse effect on
women workers. See, e.g., Pottenger v. Potlatch Corp., 329 F.3d
740, 749 (9th Cir. 2003) (“A disparate impact claim challenges ‘employment
practices that are facially neutral in their treatment of different groups but
that in fact fall more harshly on one group than another and cannot be
justified by business necessity.’”) (quoting in part Teamsters, 431 U.S.
at 335 n.15).
Further,
it is uncontested that McLane Co. revealed during the course of the Commission’s
investigation into its use of the IPCS PCE test that McLane Sunwest is a grocery
division subsidiary of McLane Co., and that McLane Co. applies the IPCS PCE
nationwide in its grocery division. After the Commission became aware of these
facts, it expanded its investigation into McLane Sunwest’s use of the IPCS PCE test
to include McLane Co.’s entire grocery division, nationwide.
ER 75; see also EEOC v. Kronos, Inc., 620 F.3d 287, 298 (3d Cir.
2010) (“An employer’s nationwide use of a practice under investigation supports
a subpoena for nationwide data on that practice.”) (citing EEOC v. United
Parcel Serv., Inc., 587 F.3d 136, 139 (2d Cir. 2009)). As courts have
routinely recognized, and neither McLane Co. nor the district court disputed,
“[o]nce the EEOC begins an investigation, it is not required to ignore facts that
support additional claims of discrimination if it uncovers such information
during the course of a reasonable investigation of the charge.” Kronos,
620 F.3d at 297 (citing Gen. Tel. of the N.W., Inc. v. EEOC, 446 U.S.
318, 331 (1980); EEOC v. Cambridge Tile Mfg. Co., 590 F.2d 205, 206 (6th
Cir. 1979); EEOC v. Gen. Elec. Co., 532 F.2d 359, 364-65 (4th Cir. 1976)).
“Rather, the EEOC has the power to investigate ‘a broader picture of
discrimination which unfolds in the course of a reasonable investigation of a
specific charge.’” Id. (quoting in part Cambridge Tile, 590 F.2d
at 206); see also EEOC v. Recruit USA, Inc., 939 F.2d 746, 756
(9th Cir. 1991) (finding “persuasive” the Sixth Circuit’s reasoning in Cambridge
Tile on this point).
Accordingly,
given the contents of Ochoa’s charge and facts the Commission uncovered as it
investigated the charge, the Commission was entitled to information relating to
whether McLane Co.’s use of the IPCS PCE test nationwide in its grocery
division may have resulted in instances of individual disparate treatment,
systemic disparate treatment, or disparate impact on the basis of sex in
violation of Title VII. The Commission was thus entitled to subpoena
information relevant to any of these possible theories of liability. As such,
it cannot reasonably be said that test takers’ pedigree information was so
devoid of investigatory relevance that it is “plainly incompetent or irrelevant
to any lawful purpose of the agency,” and fell outside that
extremely broad category of “virtually any material” that “might cast
light on the allegations against the employer.” Fed. Express, 558 F.3d
at 854 (emphasis added) (citations omitted). Pedigree information is highly
relevant to an investigation into possible sex discrimination, manifest either
as individual disparate treatment, a pattern-or-practice, or disparate impact.
The district court’s ruling to the contrary constitutes reversible error.
As for
the possibility of disparate treatment, courts have recognized that an
employer’s use of a strength test as the basis for making employment-related
decisions may be used to perpetrate individual disparate treatment on the basis
of sex. For example, the Fourth Circuit held in Merritt v. Old
Dominion Freight Line, Inc., that a jury could have concluded that the
employer subjected the plaintiff to individual disparate treatment in violation
of Title VII when the employer required her to take a physical ability test,
and then terminated her employment for failing that test. 601 F.3d 289
(4th Cir. 2010). The court reached that conclusion based in part on evidence
that despite the employer’s assertion that it applied the test uniformly and
neutrally—just as McLane Co. asserts here regarding the IPCS PCE test—the
employer in fact used the test “selectively, excusing injured male employees
from taking it” (the plaintiff had a temporary injury but was not so excused).
Id. at 296-97.
Information
from individual IPCS PCE test takers would also be highly relevant to whether
the test constitutes a pattern or practice of sex discrimination. It is well
established that anecdotal evidence—which can only be secured from individual
test takers themselves, but not from the raw, numerical data provided by the
employer—is relevant to determining whether a pattern or practice of
discrimination is present. “Circumstantial and anecdotal evidence of
discrimination is commonly used in Title VII ‘pattern or practice’ cases to
bolster statistical proof by bringing ‘the cold numbers convincingly to life.’”
Dukes v. Wal-Mart, Inc., 603 F.3d 571, 610 (9th Cir. 2010) (en banc)
(citations omitted), reversed on other grounds, Wal-Mart Stores, Inc.
v. Dukes, 131 S. Ct. 2541 (2011); see also Teamsters, 431
U.S. at 339 (recognizing, in the context of a Title VII pattern or practice
suit, that while statistics are “competent in proving employment discrimination . . .
their usefulness depends on all the surrounding facts and circumstances”); Rudebusch
v. Hughes, 313 F.3d 506, 517 (9th Cir. 2002) (same) (citations omitted).
For
example, in EEOC v. Dial Corp., the Commission filed suit challenging
the employer’s use of a preemployment strength test, claiming that the
company’s use of the test screened out women from consideration for jobs and
constituted a pattern or practice of sex discrimination in violation of Title
VII. 469 F.3d 735, 738-39 (8th Cir. 2006). A jury rendered a verdict in favor
of the Commission, and the employer appealed. Id. at 740-41. The
Commission had presented evidence of the statistical disparity in hiring
between men and women, and also presented anecdotal evidence of the experiences
of women who took the test (such as men and women receiving similar comments on
their test forms, but only the men receiving offers of employment), as well as
expert evidence that showed how the test was inconsistent with how the jobs
were actually performed. Id. at 739-40, 741-42. The Eighth Circuit
affirmed the district court’s ruling upholding the jury’s verdict, recognizing
that “statistics combined with anecdotal examples of discrimination may
establish a pattern or practice of regular, purposeful discrimination.” Id.
at 741. The court also recognized that the evidence regarding how the
preemployment strength test substantially deviated from how jobs were actually
performed was evidence that the factfinder could take into account in determining
whether the test had a disparate impact on women but was nevertheless lawful as
job related and consistent with business necessity, and also went to whether
the test was valid. Id. at 742-43; see also 42 U.S.C. § 2000e-2(k)(1)(A)
(Title VII’s affirmative defense to a disparate impact claim) (attached at
Addendum-2).
This is just
the type of information that the Commission seeks to uncover here. Given the
well-recognized importance individual anecdotal and circumstantial evidence can
play in determining whether a pattern or practice of discrimination is present,
such evidence certainly might cast light on whether or not McLane Co.’s use of
the IPCS PCE test was such an unlawful pattern or practice. Contacting IPCS
PCE test takers would permit the Commission to seek information regarding each
test taker’s individual experience with the test itself; how the test corresponded
with their actual job duties; whether McLane Co.’s description of their job
duties is consistent with their actual experience; and other similar test- and
job-related information. See Kronos, 620 F.3d at 298 (“The EEOC is
entitled to information that ‘may provide a useful context’ for evaluating
employment practices under investigation, in particular when such information
constitutes comparison data.”) (citations omitted). In fact, without the
ability to contact applicants and employees who were subjected to IPCS PCE
testing and inquire into their experiences with taking the test, the Commission
may not be able to determine whether any apparent gender-based disparities
displayed by the raw data provided by McLane Co. are in fact due to gender. To
determine whether there was some other complicating factor for a particular IPCS
PCE test taker at the time the test was administered that led to a failing
score, the Commission would need to communicate with the test takers directly.
As such, it cannot reasonably be said that pedigree information was plainly
incompetent or irrelevant to any lawful purpose of the agency, such that
the Commission was not entitled to this information.
Similarly,
IPCS PCE test takers’ social security numbers can play an important role in the
Commission’s investigation. Test takers’ social security numbers provide unique
identifiers which can aid the Commission in its examination of the IPCS PCE
test, by serving to identify individuals within a given database (test takers,
employees who sought promotion, employees who returned from leave of absence,
new applicants, etc.) and clearly distinguish them from other individuals
within that same database. The company that administers the IPCS PCE for
McLane Co. includes test takers’ social security numbers in its database of
test takers, and McLane Co. itself includes social security numbers in its
employee database. ER 20, 23. As such, the Commission’s ability to
cross-reference and link information from different databases would be greatly
enhanced by access to test takers’ social security numbers.
While
the data thus far produced by McLane Co. included “employee ID numbers” that
McLane Co. created specifically in response to this investigation, the
Commission cannot independently confirm whether these numbers are truly unique
for each individual, or if they are duplicative or otherwise unreliable. The
use of social security numbers as unique identifiers allows for accurate
identification of individuals who have taken the IPCS PCE test on more than one
occasion, in a way that an employee identification number may not. McLane Co.
has already disclosed one error that it created in its handling of the raw test
taker data, relating to what it called “de-duplication”—the process by which “certain
duplicate entries [in the data] were eliminated.” ER 125. Commission access
to test takers’ social security numbers would enable the Commission
independently to identify any such errors—rather than leaving the Commission at
the mercy of McLane Co. to identify such errors for it, as has been the case
thus far in the investigation.
Moreover,
even if the Commission’s investigation is narrowly focused (which it is not) on
the single question of whether McLane Co.’s use of the IPCS PCE test has a disparate
impact on women, the Commission would still need—and be entitled—to contact
individual test takers to reach a conclusion on that question, in order to
assess the validity of the test itself. Under Title VII, an employer may
defend the use of an employment test or other selection device that has a
disparate impact on a protected class by showing that it is job-related and
consistent with business necessity. See 42 U.S.C. § 2000e-2(k)(1)(A)
(Title VII’s affirmative defense to a disparate impact claim) (attached at
Addendum-2). A “validity study of an employment test can be sufficient to
prove business necessity.” Dial, 469 F.3d at 742.
The
Commission’s Uniform Guidelines on Employee Selection Procedures, 29 C.F.R. §
1607.1 et seq., are to “be applied by the Equal Employment Opportunity
Commission in the enforcement of [T]itle VII of the Civil Right s Act of 1964.”
29 C.F.R. § 1607.2(A) (attached at Addendum-7). The guidelines provide that
“[t]he use of any selection procedure which has an adverse impact on the
hiring, promotion, or other employment or membership opportunities of members
of any race, sex, or ethnic group will be considered to be discriminatory and
inconsistent with these guidelines, unless the procedure has been validated in
accordance with these guidelines.” 29 C.F.R. § 1607.2(A) (attached at
Addendum-7); see also § 1607.2(B) (“These guidelines apply to tests and
other selection procedures which are used as a basis for any employment
decision.” (attached at Addendum-7)).
Properly determining the validity of employment selection tests such
as the IPCS PCE test depends in part on examining information regarding how the
job for which the test is required is actually performed. Validation studies
should be based upon a review of the actual job for which the job test is to be
used, and “[a]ny method of job analysis may be used if it provides the
information required for the specific validation strategy used.” 29 C.F.R. §
1607.14(A) (emphasis added) (attached at Addendum-9). “Any” method of job
analysis necessarily includes comparing the information an employer provides
the Commission in connection with its investigation of an allegedly illegal job
test against information provided to the Commission by actual test takers
regarding their experiences with the test and how the test compares to their
actual experiences performing their job.
When
assessing the validity of a test measuring a job-related ability, such as the
strength of the test taker, “the manner and setting of the [test] and its level
and complexity should closely approximate the work situation.” 29 C.F.R. §
1607.14(C)(4) (attached at Addendum-9). “As the content of the [test] less
resembles a work behavior, or the setting and manner of the administration of
the [test] less resemble the work situation, the less likely the [test] is to
be content valid, and the greater the need for other evidence of validity.” Id.
As discussed by the Eighth Circuit in Dial, information that can be used
to compare an employer’s test that is claimed to assess an individual’s ability
to perform a job with the actual performance requirements for the job in
question, is important information for determining whether or not such test is
lawful or in violation of Title VII under a disparate impact theory of
liability. 469 F.3d at 741-43. As the actual experiences of actual test
takers is indisputably relevant to the question of whether an employment test
sufficiently corresponds to the job for which the test is offered to render the
test valid, information that would permit the Commission to contact test takers
so that it can attempt to collect such information is also relevant to that
investigation.
Moreover,
McLane Co.’s assertion that such information is not necessary because it has
provided, or will provide, the Commission with other information
regarding whether the test is valid, misses the point. As described above, the
Commission is entitled to pedigree information so long as it meets this Court’s
extremely generous relevance standard. Fed. Express, 558 F.3d at 854
(emphasis added) (citations omitted). This standard does not limit the
Commission’s investigative authority to merely “any evidence that the employer
chooses to divulge,” for, plainly, such an interpretation would render the Commission’s
investigative authority, and Title VII’s administrative process, a complete
nullity. Simply put, whether or not McLane Co. has disclosed other, different information
that it deems relevant to the matter under investigation does not define
whether the information sought by the Commission is relevant to the
investigation.
Despite McLane
Co.’s attempts to dictate the scope of the Commission’s investigation, it is
the Commission that has control over its investigation and the Commission that
is entitled to determine what evidence it needs to complete its statutorily-authorized
investigation. This Court has “rejected attempts by employers to cabin EEOC
investigations” by endeavoring to “straitjacket the EEOC into an artificially
narrow survey” of information relevant to the charge at hand. Recruit
USA, 939 F.2d at 756. “‘Clearly, an alleged perpetrator of discrimination
cannot be allowed to pick and choose the evidence which may be necessary for an
agency investigation.’” Id. at 756-57 (quoting Univ. of Pa. v. EEOC,
493 U.S. 182, 193 (1990)).
Here,
for example, McLane Co. has attempted to limit the Commission’s investigation
into its IPCS PCE testing practices by attempting to narrowly—and
incorrectly—define the Commission’s investigation in terms of a single possible
theory of liability (disparate impact). See ER 42 (n.11), 43 (McLane
Co.’s assertions that Ochoa did not allege disparate treatment because she
“admits the IPCS PCE was required of all applicants and people returning from a
leave of absence in excess of thirty days,” and that “[n]o one, not even the
EEOC, suggests that the IPCS PCE was applied discriminatorily, as opposed to
neutrally. As such, disparate impact is the only relevant inquiry”). But McLane
Co.’s statement is factually incorrect; it ignores the Commission’s decision to
deny the company’s petition to revoke or modify the subpoena, where the
Commission clearly and unequivocally stated that the information requested in
the subpoena is “relevant to identifying witnesses, comparative parties, and/or
individuals who may have been subjected to disparate impact or treatment
by [McLane Co.].” ER 120 (emphasis added).
Moreover,
McLane Co.’s argument reveals a misunderstanding of the Commission’s basic
investigative authority. When a charge of discrimination is filed, it is the
Commission—not the respondent employer—that interprets the scope of the charge
and the investigation. Consistent with this approach, at least one court of
appeals has unequivocally rejected an employer’s attempt to limit the scope of
the Commission’s investigation based on the respondent’s asserted
interpretation of a charge. In Kronos, the Third Circuit flatly
rejected the respondent’s attempt to limit the Commission’s investigation to a
single theory of liability based on the purported sole legal theory for
discrimination supposedly alleged by the charging party in her charge, as
asserted by the respondent to the charge. 620 F.3d at 300. The court
concluded that the charge “does not contain a legal theory, nor was [the
charging party] required to assert one.” Id. (citing 29 C.F.R. §1601.12(a)-(b)
(Commission’s charge filing requirements, which makes no mention of requiring a
charge to contain a legal theory of discrimination) (attached at Addendum-6); cf.
B.K.B. v. Maui Police Dept., 276 F.3d 1091, 1100 (9th Cir. 2002) (“’[T]he
crucial element of a charge of discrimination is the factual statement
contained therein.’”) (citation omitted).
Recognizing
the reality that “the individuals who draft charges are often ‘not well vested
in the art of legal description,’” the court noted that the scope of charges is
to be liberally construed. Kronos, 620 F.3d at 300 (citations
omitted). The court went on to conclude that “[i]t is entirely possible that
[the charging party] was not fully aware of the extent to which [the employer]
relied upon the test in evaluating her application, and thus did not perceive
the potential impact the test had on [the employer’s] decision not to hire
her. In any event, it is up to the EEOC, not [the charging party], to
investigate whether and under what legal theories discrimination might have
occurred.” Kronos, 620 F.3d at 300.
This
Court similarly has recognized that the language a charging party uses in a
charge is to be construed generously given the limitations on most charging
parties’ understanding of the law. See B.K.B., 276 F.3d at 1100 (“We
construe the language of EEOC charges ‘with utmost liberality since they are
made by those unschooled in the technicalities of formal pleading.’”) (citation
omitted). And, perhaps most importantly, the ultimate conclusion in Kronos
that it is the Commission that has ultimate control over the charge and how it
is interpreted and, thus, investigated, is also consistent with this Court’s
and the Supreme Court’s recognition that “[o]nce a charge is filed, . . . under
the statute the EEOC is in command of the process.” Fed. Express, 558
F.3d at 852 (quoting EEOC v. Waffle House, Inc., 534 U.S. 279, 291
(2002)).
Abiding
by this Court’s settled authority and liberally construing Ochoa’s sex
discrimination charge, there can be no real dispute that the Commission is
entitled to investigate whether McLane Co.’s use of the IPCS PCE test violates
Title VII under an individual disparate treatment, pattern or practice, or
disparate impact theory of liability. McLane Co.’s attempts to limit the
investigation to a single theory of liability are without support in law or
fact. The pedigree information sought is relevant to a reasonable investigation
of Ochoa’s charge of sex discrimination, and the district court thus erred in
refusing to enforce the Commission’s subpoena seeking this information.
II. The Commission is Not Required to Make A Preliminary
Showing That the Charge Under Investigation Has Substantive Merit In Order to
be Entitled to Information Relevant to the Commission’s Investigation of That Charge.
The district
court ruled in part that IPCS PCE test takers’ “pedigree information may
become relevant to an investigation and the EEOC may find it necessary to seek
such information,” but only if and when the Commission had examined the test
taker data and concluded that “the IPCS PCE systematically discriminates on the
basis of gender.” ER 9 (emphasis added). As such, the court required the
Commission to show that McLane Co.’s use of the IPCS PCE test in fact constitutes
systemic sex discrimination in violation of Title VII, as a condition precedent
to the Commission’s possibly—and only possibly—being permitted to access test
takers’ pedigree information. Such a precondition on the Commission’s ability
to access relevant information puts the proverbial cart before the horse, and is
directly at odds with the precedent of the Supreme Court and this Court.
The Supreme
Court long ago rejected the notion that the Commission’s access to relevant
information in an investigation may be conditioned on a preliminary showing
that the allegations in the charge have substantive merit. In Shell Oil,
the Court addressed a challenge to the Commission’s investigation of a charge
lodged by an EEOC Commissioner. 466 U.S. at 57-61. The court of appeals had reversed
the district court’s enforcement of the Commission’s subpoena, ruling in part
that the Commission was not entitled to the requested information because the
Commissioner’s charge failed to present “a ‘statement of the circumstances’ of
the alleged statutory violations ‘supported by some factual or statistical
basis.’” Id. at 60-61.
Recognizing
the great breadth of information to which the Commission was entitled in its
investigations and that “it is crucial that the Commission’s ability to
investigate charges of systemic discrimination not be impaired,” id. at
68-69, the Supreme Court flatly rejected the court of appeals’ overly restrictive
approach. First, the Court ruled that the Commission was not required to present
to the respondent employer “some portion of the statistical data on which its
allegations of systemic discrimination are founded” as part of the requisite
notice of the charge. 466 U.S. at 71. Acknowledging the absurdity of such a
requirement, the Court stated that this approach would “in effect, oblige the
Commissioner to substantiate his allegations before the EEOC initiates
an investigation, the purpose of which is to determine whether there is reason
to believe those allegations are true.” Id. (emphasis in original). The
Court further reasoned that “the Commission may insist that the employer
disgorge any evidence relevant to the allegations of discrimination contained
in the charge, regardless of the strength of the evidentiary foundation for
those allegations.” Id. at 71-72 (emphasis added).
Most
importantly, the Court observed that there was no statutory support for the
notion that in a subpoena enforcement action, courts should determine the evidentiary
verity or foundation of the charge as a condition precedent to enforcement of
the subpoena, and “any effort by the court to assess the likelihood that the
Commission would be able to prove the claims made in the charge would be
reversible error.” Id. at 71-72 & n.26.
Consistent
with Shell Oil, this Court has never conditioned the Commission’s
ability to access relevant information sought during an investigation on
whether or not the Commission could make a preliminary showing that the
respondent employer had in fact violated Title VII as alleged in the charge
under investigation. In Karuk Tribe, this Court observed that “courts
should not refuse to enforce an administrative subpoena when confronted by a
fact-based claim regarding coverage or compliance with the law,” as the
extremely narrow scope of judicial inquiry into whether to enforce a Commission
subpoena requires that “courts must enforce administrative subpoenas unless
‘the evidence sought by the subpoena [is] plainly incompetent or irrelevant’ to
‘any lawful purpose’ of the agency.” 260 F.3d at 1076 (citations omitted).
Courts are simply not permitted to determine the Commission’s entitlement to
relevant evidence based on a preliminary assessment of the ultimate substantive
merit of the charge under investigation.
This,
however, is exactly the standard imposed by the district court here. The
district court effectively ruled that the Commission must make a preliminary
evidentiary showing indicating the existence of systemic sex discrimination in
violation of Title VII, before IPCS PCE test takers’ pedigree
information might become “relevant” and available to the Commission. ER 9.
This ruling is directly contrary to Shell Oil and Karuk Tribe
and, as an effort to condition subpoena enforcement on whether the Commission
can present evidence showing that the charge has substantive merit, constitutes
“reversible error.”
Shell Oil, 466 U.S. at 72 n.26: cf. Univ. of Pa., 493 U.S. at 194
(holding, in the context of rejecting the employer’s claimed confidentiality
privilege, that “we agree with the EEOC that the adoption of a requirement that
the Commission demonstrate a ‘specific reason for disclosure’ [of subpoenaed
information] . . . beyond a showing of relevance, would place a substantial
litigation-producing obstacle in the way of the Commission’s efforts to
investigate and remedy alleged discrimination”).
III. The Commission is Entitled to Information Regarding
Whether IPCS PCE Test Takers Were Terminated Because They Failed to Pass the Test.
The
district court acknowledged in its Order that one category of information at
issue in this subpoena enforcement action was IPCS PCE test takers’ “reason for
termination (in connection with test results or not)”—that is, if McLane Co.
terminated the employment of any test takers, information regarding the
company’s reason for its terminating those individuals’ employment. ER 3.
However, the district court failed to enforce the subpoena regarding this
plainly relevant category of information, and failed to explain its rationale
for why the subpoena should not have been enforced as to this information. McLane
Co. did not even develop an argument below that this information was not
relevant. As such, the district court committed reversible error when it
failed to direct McLane Co. to disclose this information to the Commission.
Just as with IPCS PCE test takers’ pedigree information, information
about the reasons McLane Co. had for terminating the employment of test takers falls
squarely within this Court’s extremely broad standard for relevance. One of
the most significant adverse actions an employer may take against an employee
is a termination. When, as here, the Commission is investigating a company’s conditioning
employment—either new or, in some instances, continuing—on the individual’s
ability to pass a physical capacity strength test, information as to what
reasons the company offered for terminating the employment of people who took
the test is, of course, relevant to such an investigation.
For example, this information can assist the Commission in identifying
whether McLane Co. actually terminated all test takers who failed to pass the
test because they failed to pass the test, as opposed to terminating only women
who failed the test while excusing men who failed the test from termination. See
Dial, 469 F.3d at 742 (where employer required applicants to undergo a
preemployment strength test, evidence that employer’s comments on test forms
were similar for both sexes but only men received offers of employment suggested
a pattern or practice of sex discrimination). Given that Ochoa alleged that
she was terminated for failing to pass the IPCS PCE test, and the company has stated
that individuals who could not pass the test for the job they held or sought
could not keep or be hired for such jobs, the relevance of the company’s
reasons for terminating test takers should be obvious.
Moreover, McLane Co. did not even develop an argument below that this
information was not relevant to the Commission’s investigation. Instead, the
company simply asserted that the request was overbroad as to certain individual
test takers who were terminated for reasons other than their score on the IPCS
PCE test, providing as an example the hypothetical scenario where someone who
took the IPCS PCE test and was hired, but was later terminated for stealing. ER
43-45. However, McLane Co. ignores the simple fact that, as this Court stated
in Federal Express, in rejecting the employer’s overbreadth argument,
“[t]he subpoena need not request only evidence that is specifically relevant to
proving discrimination; the requested information need only be ‘relevant and
material to the investigation.’” 558 F.3d at 855 (emphasis in original)
(citation omitted). Simply put, even if some of the company’s termination
decisions were made for reasons other than an IPCS PCE test score, this would
not render the company’s reasons for why it terminated test takers irrelevant
to the Commission’s investigation.
Conclusion
For
the aforementioned reasons, the Commission respectfully requests that this
Court reverse the district court’s ruling denying enforcement of the Commission’s
subpoena seeking IPCS PCE test takers’ pedigree information and McLane Co.’s
reasons for terminating test takers, and remand for enforcement of the subpoena
as to this information.
Statement of Related Cases
At
the time this brief is being filed, one related case is pending before this
Court. EEOC v. McLane Corp., No. 12-17440 (9th Cir.), involves the
Commission’s attempt to enforce a separate administrative subpoena issued in
connection with investigation into whether McLane Co.’s use of the IPCS PCE
test violates the ADEA. However, on May 31, 2013, the Commission moved the
Court to voluntarily dismiss that separate appeal, on terms agreed to by the
parties. The Court’s dismissal of that separate appeal will not resolve any of
the issues presented in the instant appeal.
Respectfully submitted,
P. DAVID LOPEZ
General Counsel
LORRAINE
C. DAVIS
Acting Associate General Counsel
DANIEL
T. VAIL
Acting
Assistant General Counsel
s/
James M. Tucker
JAMES M. TUCKER
Attorney
U.S. EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION
131
M St. NE, Rm. 5NW10P
Washington,
D.C. 20507
(202)
663-4870
James.Tucker@EEOC.gov
Chapter 7.
Labor-Management Relations (Refs & Annos) 
§ 161.
Investigatory powers of Board