Introduction

In its opening brief, the Commission argued that the district court erred in concluding that IPCS PCE test takers’ pedigree information—test takers’ names, contact information, and social security numbers—is irrelevant to the Commission’s investigation. Commission’s Opening Brief (“AtBr.”) 26-48. It is well settled that in Title VII investigations, the Commission is entitled to access virtually any evidence that might cast light on the allegations presented in the charge under investigation. The scope of judicial 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. AtBr.26-29

The sex discrimination allegation in Ochoa’s charge supports the Commission’s subpoena of the pedigree information sought here. The Ochoa charge supports the Commission investigating possible sex-based individual disparate treatment of Ochoa herself. More importantly for purposes of this appeal, the charge also supports an investigation into whether the company’s broad use of the IPCS PCE test constitutes systemic, pattern or practice sex discrimination, or disparate impact sex discrimination. AtBr.29-31, 33-38. McLane Co.’s acknowledged nationwide use of the test further supports this investigation into possible systemic or disparate impact discrimination. AtBr.31-33.

Indeed, for the Commission meaningfully to investigate Ochoa’s charge the Commission must be able to contact test takers and inquire into their actual experiences with the test. The information the Commission could receive from test takers regarding their experiences with the test is plainly relevant to the Commission’s investigation into whether the test constitutes a pattern or practice of sex discrimination or has an unlawful disparate impact on women. AtBr.34-38, 39-42.[1] The district court erred in ruling otherwise.

The district court also erred by imposing a long-rejected, heightened burden on the Commission to show that systemic sex discrimination actually existed at McLane Co. before even considering whether pedigree information is relevant to the investigation into whether there is in fact any systemic sex discrimination. AtBr.48-53. The district court further erred in failing to enforce the subpoena as to information McLane Co. possesses regarding its reasons for terminating test takers. AtBr.53-56. The district court offered no reasoning whatsoever for its refusal to order McLane Co. to produce such information, and McLane Co. does not challenge the Commission’s relevance argument on appeal. See McLaneBr.43-45.

In its response brief on appeal, McLane Co. does not fully respond to the Commission’s arguments. Instead, it attempts to defend the district court’s refusal to enforce the subpoena as to pedigree information with the conclusory assertion that the investigation must be limited to the artificially narrow question of possible disparate impact, and that the only information that the Commission needs to pursue that inquiry is information that McLane Co. deems relevant. However, as discussed more fully below, McLane Co.’s arguments are without legal or factual support.

More generally, McLane Co. attempts to impugn the Commission’s conduct of this and other, related investigations. See, e.g., McLaneBr.8-15 (statement of fact); McLaneBr.23 (claiming the Commission is “abusing its authority by seeking irrelevant information into wholly unrelated issues”). However, as explained in our opening brief, the Commission’s investigation into Ochoa’s Title VII charge, and specifically the request for test takers’ pedigree information, seeks information that is highly relevant to the allegations under investigation and that is well within the bounds of the Commission’s investigative authority. The Commission has not overstepped its authority, and McLane Co.’s accusations to the contrary are unavailing.

For example, McLane Co. asserts that the Commission reopened previously-closed charges—charges that alleged McLane Co. had discriminated against individuals through its use of the IPCS PCE testing program—and then closed those charges again, as an act of “seeming retaliat[ion]” for McLane Co.’s not providing the requested pedigree information. McLaneBr.12 n.4. To the contrary, however, it is routine, responsible, and entirely appropriate for the Commission to reexamine—through reopening and, where necessary, thereafter reclosing—previously-closed charges that could have some bearing on a charge being presently investigated. There has been no “retaliation,” seeming or otherwise.

McLane Co. also alleges that the “pattern” of the Commission’s investigation of the IPCS PCE testing program—first seeking to enforce an ADEA-based subpoena before seeking to enforce Ochoa’s Title VII-based subpoena—“reveals the overarching exceeding of authority” by the Commission. McLaneBr.40 n.20. This allegation is meritless. There is no impropriety in the Commission choosing to enforce one valid subpoena, issued under one statute, before seeking to enforce another subpoena issued under a different statute. McLane Co. has identified no authority supporting the proposition it suggests, because there is none.

These allegations are mere red herrings, designed to distract this Court from the true matter at hand—whether in this Title VII investigation, the Commission is entitled to test takers’ pedigree information and information regarding why McLane Co. terminated test takers. And this question is controlled by this Court’s decision in EEOC v. Federal Express Corp., 558 F.3d 842 (9th Cir. 2009), a decision McLane Co. fails even to cite in its brief. See McLaneBr. iv-vi (table of authorities).

Because the Commission’s request for this information is fully supported by the law of this Court and the Supreme Court, the district court’s ruling to the contrary constitutes reversible error.

Argument

I. IPCS PCE Test Takers’ Pedigree Information is Relevant to the Commission’s Investigation of Ochoa’s Title VII Claim.

It is well settled that “the scope of judicial inquiry in an EEOC . . . subpoena enforcement proceeding is quite narrow,” and that the Commission’s entitlement to access relevant information in the course of its investigation of a Title VII charge of discrimination is to be construed extremely broadly. EEOC v. Children’s Hosp. Med. Ctr. of N. Cal., 719 F.2d 1426, 1428 (9th Cir. 1983) (en banc); Fed. Express, 558 F.3d at 854. “‘[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,’” and relevance is “determined in terms of the investigation rather than in terms of evidentiary relevance.” Fed. Express, 558 F.3d at 854 (emphasis added) (citations omitted). This relevance standard is “‘not especially constraining’” and is 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)) (alteration in original; emphasis added).

In the Ochoa charge investigation, IPCS PCE test takers’ pedigree information falls squarely within the bounds of this extremely broad and generous definition of relevant information. Ochoa asserts that McLane Sunwest (a subsidiary of McLane Co.) required her to undergo a strength test before it would permit her to return to work from maternity leave; that the company gives the test to all newly hired employees as well as those returning to work from medical leaves of absence; that the company terminated her after she failed the test; and that she believed she had thereby been discriminated against on the basis of her sex (pregnancy) in violation of Title VII. Excerpts of Record (“ER”) 46. On its face, Ochoa’s charge alleges facts indicating that McLane Co. may have discriminated against Ochoa individually because of her sex; that, by virtue of McLane Co.’s use of the testing program on a broad scale, she was subjected to a pattern or practice of sex discrimination; and/or that she was the victim of sex discrimination because the testing program has a disparate impact on women. See AtBr.29-38.

It is well-established in this Court—particularly, by the Federal Express decision McLane Co. ignores in its brief—that when a charge brought by an individual alleges a pattern or practice of discrimination, a company-wide investigation—“beyond the alleged individual discrimination specifically committed against [the charging party]”—is appropriate. Fed. Express, 558 F.3d at 855. Moreover, McLane Co.’s use of the test nationwide in its grocery division—the division in which Ochoa worked—provides further support for the Commission’s nationwide pattern or practice or disparate impact investigation. See 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.”).

Pedigree information, which would permit the Commission to contact test takers regarding their individual experiences with the testing program, is highly relevant to this investigation into possible systemic (pattern-or-practice) or disparate impact discrimination. See AtBr.33-38. As the Supreme Court has explained, while statistics are “competent in proving employment discrimination . . . their usefulness depends on all the surrounding facts and circumstances.” Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 336 (1977); see also Rudebusch v. Hughes, 313 F.3d 506, 517 (9th Cir. 2002) (same). This Court and others agree. “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 EEOC v. Dial Corp., 469 F.3d 735, 741 (8th Cir. 2006) (“[S]tatistics combined with anecdotal examples of discrimination may establish a pattern or practice of regular, purposeful discrimination.”). Similarly, information from test takers regarding whether the test substantially deviates from how jobs were actually performed is relevant to the questions of whether the test had a disparate impact on women and, if so, whether it was justified as job related and consistent with business necessity (i.e., “valid”). Dial, 469 F.3d 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 to AtBr. at Addendum-2); 29 C.F.R. § 1607.2(A) (selection procedures with disparate impact are discriminatory unless validated) (attached to AtBr. at Addendum-7).[2]

McLane Co. presents several arguments to the contrary, but none has any merit. But it must first be noted, again, that McLane Co. has not offered any discussion regarding, and not even a single citation to, this Court’s controlling decision in EEOC v. Federal Express Corp. See generally McLaneBr.1-45 (no mention of Fed. Express). That decision provides the legal principles that form the foundation of the Commission’s argument on appeal, as it is controlling Ninth Circuit authority on the question of the Commission’s authority to access relevant information. See AtBr.26-29, 31, 33, 43, 47 (citing Fed. Express). Yet McLane Co. apparently believes it does not merit even a passing mention. Instead, McLane Co. attempts to defend the district court’s ruling through citation to nonbinding decisions from other jurisdictions and then asserting that “[t]he district court properly applied these [out-of-circuit] standards.” McLaneBr.23-24 (citing EEOC v. Ford Motor Credit Co., 26 F.3d 44 (6th Cir. 1994); EEOC v. United Air Lines, Inc., 287 F.3d 643 (7th Cir. 2002)).

McLane Co. also attempts to defend the district court’s ruling through use of self-serving proclamations, such as that it has already provided “extensive information to the EEOC that is arguably relevant,” suggesting that, therefore, it does not need to provide pedigree or other relevant information the Commission is requesting. McLaneBr.23, 35. Of course, the Commission’s entitlement to access relevant material is not limited merely because the respondent has already turned over other pertinent information. Rather, the operative inquiry is whether the additional information sought is “relevant.” See, e.g. Fed. Express, 558 F.3d at 854.

Another fundamental error at the heart of McLane Co.’s argument is its repeated insistence that “Ochoa’s charge alleges only a neutrally applied Evaluation” and “alleges only a disparate impact claim . . . that is susceptible to statistical analysis without the need for individualized treatment-related anecdotes.” McLaneBr.19-20, 22, 27-28, 30. McLane Co. similarly asserts that the Commission is attempting to establish relevance by “floating various theories of discrimination” “with no connection whatsoever to the facts actually alleged in the charge.” McLaneBr.25-26. McLane Co. is simply incorrect. As already emphasized, Ochoa’s charge alleges facts that suggest McLane Co. may have subjected her to individual disparate treatment, pattern or practice discrimination, and/or disparate impact discrimination. See AtBr.29-33. Further, even if the charge did allege only disparate impact, the Commission’s investigation would not be limited to a mere statistical analysis of possible disparate impact. See AtBr.39-42.

McLane Co. asserts that the Commission waived its arguments regarding how the Ochoa charge presents factual allegations that could support an investigation into possible individual disparate treatment, pattern or practice discrimination, or disparate impact discrimination. McLane Co. claims this is because the Commission argued below “almost exclusively” that pedigree information was relevant to Ochoa’s claim under the Americans with Disabilities Act (“ADA”), and then “abandoned its previous rationale” by failing to appeal from the district court’s adverse ruling regarding the ADA investigation. McLaneBr.24-25. McLane Co. similarly argues that the Commission waived the argument that it is actually investigating possible disparate treatment and/or systemic, pattern or practice discrimination. McLaneBr.26. These assertions are meritless.

The Commission presented these arguments to the district court. In its opening memorandum, the Commission argued that Ochoa alleged in her charge that McLane Co. “violated Title VII and the ADA by discriminating against her on the basis of sex and disability . . . by requiring her to pass a physical capacity exam.” ER 127. The Commission unequivocally stated that it was investigating Ochoa’s allegation of “sex” discrimination “in violation of Title VII.” Commission’s Supplemental Excerpts of Record (“Comm’nSER”) 9. In its reply memorandum, the Commission stated “the Ochoa charge alleges systemic discrimination based on sex” and “the Title VII/ADA investigation extends beyond disparate impact to disparate treatment.” Comm’nSER 5-6; see also Shell Oil, 466 U.S. at 67-71 (Title VII pattern or practice claims are claims of systemic discrimination). The Commission argued that Ochoa’s charge alleged “a policy” of sex discrimination, and that in the Title VII investigation the Commission was “investigating more than a statistical basis for possible discrimination.” Comm’nSER 7.

At the hearing, the Commission argued that it needed to contact test takers “to look at things like the validity of this test” by “talk[ing] to people who actually perform these functions at their job to see if in fact this is the type of test that would measure what they do,” as well as to ask other questions that “help[] us figure out the whole picture of the story and what’s going on.”[3] Comm’nSER 2-3; see also Dukes, 603 F.3d at 610 (recognizing role of circumstantial and anecdotal evidence of discrimination in Title VII pattern or practice cases “to bolster statistical proof by bringing ‘the cold numbers convincingly to life’”) (citations omitted). The Commission further stated that its investigation also encompassed possible defenses to a disparate impact claim. Comm’nSER 3. There was no waiver of these arguments.[4]

McLane Co. next misguidedly suggests that the Commission is “inaccurately” describing the “record” regarding the IPCS PCE test, because in McLane Co.’s opinion the “record evidence” “actually shows” the test is required for all physically demanding positions, and the Commission did not “argue” “individualized, selective application of the policy based on gender.” See McLaneBr.27; see also McLaneBr.30 (claiming the Commission’s position is inconsistent because it acknowledges the testing policy is applied nationwide, yet suggesting that the policy is applied “selectively”). McLane Co.’s assertion is both factually incorrect and irrelevant.

This is an investigation to determine whether the test in fact is discriminatory, not litigation over the substantive merit of the charge. As such there is no “record evidence” “establishing” that the test is or is not selectively enforced. At this phase, the Commission is an impartial investigator; it neither alleges nor asserts discrimination. The point of the investigation is to determine whether or not there is merit to Ochoa’s charge.

McLane Co.’s assertion that the test cannot be challenged under individual disparate treatment or pattern or practice theories because it is required for “all” physically demanding positions similarly misses the point. Simply having a policy that requires everyone to take the test does not establish that all persons are actually equally treated under that policy. See Merritt v. Old Dominion Freight Line, Inc., 601 F.3d 289, 296-97 (4th Cir. 2010) (employer asserted uniform application of test; evidence showed selective enforcement).[5] The fact that the charge alleges that the test is given to “all employees” hardly forecloses the question of whether “all employees” are treated equally in regard to the company’s administration of the test and its use of the test results. That is exactly the purpose of the investigation—to seek information in order to answer these sorts of questions raised by Ochoa’s charge.

McLane Co. claims that the Commission “misunderstands the nature” of the IPCS PCE test—what the company once again characterizes as “a purely objective Evaluation” that “is not designed to mimic job duties”—and that this Court therefore should reject the Commission’s relevance argument. McLaneBr.32-33. But this only reveals McLane Co.’s own fundamental misunderstanding of both the purpose of a charge investigation and the relevance of pedigree information to this investigation. Based on Ochoa’s charge, the Commission is entitled to investigate whether or not McLane Co.’s use of the test violates Title VII as alleged. The Commission is entitled to make its own determination on that point, based on relevant evidence; the Commission is not required to accept at face value the company’s claim that the test is lawful.

Even if McLane Co. is correct that the test is not administered in a discriminatory manner, McLane Co. concedes that the charge supports investigating whether the test has a disparate impact on women. Accordingly, the Commission is entitled to contact test takers and discuss their experiences with the test and how, in their experience, the test correlates to actual job performance or duties, because such information is relevant to the question of whether the test is “valid.” See AtBr.39-43.

McLane Co. asserts that the Commission’s explanation for how pedigree information is relevant to whether the IPCS PCE test has an unlawful disparate impact on women was not argued below. McLaneBr.31. This, too, is incorrect. The Commission argued below that the investigation encompassed a possible Title VII disparate impact violation, and one reason the Commission sought such information was in order to determine whether the test was “valid.” See supra, at 13-15. “Validity” relates to the Commission’s guidelines for assessing whether, when an employer’s selection procedure (such as the IPCS PCE testing program) has a disparate impact on a protected group, it is nevertheless lawful under Title VII. See AtBr.39-42. Moreover, McLane Co. agrees that the Commission raised the issue of validity at the hearing. [6] See McLaneBr.31 & n.14.

Further, McLane Co.’s assertion that the test is not designed to “mimic job duties” raises fundamental questions about the legitimacy of McLane Co.’s use of the test in employment decisions, and further demonstrates the relevance of test takers’ pedigree information to Ochoa’s allegations. To avoid liability for a proven disparate impact, the employer must establish that the policy at issue is job related and consistent with business necessity. See 42 U.S.C. § 2000e-2(k)(1)(A)(i) (attached to AtBr. at Addendum A-2). In discussing the job-relatedness of employment tests in the context of Title VII disparate impact claims, the Supreme Court recognized that “[w]hat Congress has forbidden is giving these devices and mechanisms controlling force unless they are demonstrably a reasonable measure of job performance. . . . What Congress has commanded is that any tests used must measure the person for the job and not the person in the abstract.” Albemarle Paper Co. v. Moody, 422 U.S. 405, 426 (1975) (quoting Griggs v. Duke Power Co., 401 U.S. 424, 436 (1971)). “[D]iscriminatory tests are impermissible unless shown . . . to be ‘predictive of or significantly correlated with important elements of work behavior which comprise or are relevant to the job or jobs for which candidates are being evaluated.’” Id. at 431 (citing 29 C.F.R. § 1607.4(C) (Commission’s validation guidelines)). McLane’s admission that the test is not designed to reflect actual job duties simply underscores the need for the Commission to talk to certain actual test takers to better understand how or whether the test is job-related for the particular jobs at issue, and how or whether it is a business necessity with respect to such jobs.

McLane Co. next attempts to factually distinguish the Dial and Dukes decisions from this matter. McLaneBr.33-34. However, the relevance of these cases is not whether they present factually identical circumstances to the employment practice under investigation here (which, of course, would itself be a premature inquiry given that Ochoa’s charge is still being investigated). Instead, they stand for the proposition that anecdotal information from test takers is relevant to a pattern or practice claim, and therefore that test takers’ pedigree information—by which the Commission could seek such anecdotal information—is relevant to the pattern or practice claim under investigation here. See AtBr.34-36.

McLane Co. also takes issue with the Commission’s argument that its authority to investigate under the individual disparate treatment, pattern or practice, or disparate impact theories of discrimination not only is based on the factual allegation in Ochoa’s Title VII charge, but is also supported by McLane Co.’s acknowledgement that it uses the testing program nationwide. McLaneBr.35-36, see also AtBr.29-33. Yet it is settled law—and McLane Co. does not dispute—that if the Commission is investigating a charge and uncovers evidence that supports additional claims of discrimination, it is not required to ignore those facts. See AtBr.32; McLaneBr.35; see also supra, at 8. Instead of acknowledging this obvious implication of its admission of nationwide use, McLane Co. responds with distortion, asserting that because the Commission has failed to present any other “fact” supporting these three theories of discrimination, the investigation is “a nationwide fishing expedition based on pure speculation,” and the Commission is arguing for “unconstrained authority to troll for other potential violations based on nothing more than pure speculation.” McLaneBr.35-36.

McLane Co.’s assertion is, again, simply incorrect. The Commission has not taken any such position, and McLane Co.’s inflammatory claim does nothing to alter the simple fact that Ochoa’s charge and the company’s admission that it uses the test nationwide each support the Commission’s nationwide investigation.[7]

In a footnote, McLane Co. asserts that the pedigree information requested by the Commission “implicates the privacy interests of 14,004 individuals, which should warrant some showing of why such information is necessary,” and that there is “no assurance that such personal information will remain safe and uncompromised.” McLaneBr.37 n.17. Amazingly, McLane Co. points to the Commission having actually contacted a small handful of individuals “who have not requested to even talk with the EEOC” as support for its concern. Id. As much as McLane Co. may view the Commission’s speaking with potential witnesses to an alleged discriminatory practice as cause for alarm, it is instead rather routine. (Indeed, it is exactly what happens in charge investigations, and thus no basis for refusing to provide pedigree information.)[8] Moreover, McLane points to no authority (understandably, since we are aware of none) supporting the proposition that vague privacy concerns can preclude the Commission from obtaining otherwise relevant information. See id. To the contrary, it is well recognized that Title VII itself contains ample protections for maintaining the security and confidentiality of information the Commission uncovers during the course of its investigations. See 42 U.S.C. § 2000e-8(e) (Title VII’s confidentiality provision regarding investigations); Univ. of Pa. v. EEOC, 493 U.S. 182, 192-93 (1990) (addressing same).

McLane Co. next disputes the Commission’s explanation for why test takers’ social security numbers are relevant. Its arguments are unavailing. McLane Co. asserts that the Commission does not need test takers’ social security numbers because the company already provided “unique numbers” distinguishing among test takers. McLaneBr.38. However, the question is, again, not what McLane Co. thinks the Commission needs to complete its investigation, but whether the information sought satisfies this Court’s extremely broad definition of relevance. See Univ. of Pa., 493 U.S. at 194 (rejecting requirement that the Commission show a “specific reason for disclosure” beyond a showing of relevance). In addition, there are questions as to whether or not McLane Co.’s “unique numbers” are accurate identifiers in the first place, see AtBr.39, and the company does not dispute that test takers’ social security numbers would in fact serve to accurately identify unique individuals among test takers, thereby eliminating errors relating to duplicate entries, see McLaneBr.38.

Perhaps most critically, however, McLane Co. does not even address the relevance of this information, instead arguing that, in its opinion, the Commission does not need the information. See McLaneBr.38. As such, McLane Co. tacitly concedes that this information is in fact relevant.

McLane Co. also claims that the Commission inappropriately highlighted an “irrelevant error” in the data McLane Co. provided to the Commission.[9] McLaneBr.38-39. However, McLane Co. fails to appreciate that this “irrelevant error”—related to someone eliminating cumulative or duplicative entries in the data McLane Co. provided to the Commission—shows precisely why test takers’ social security numbers are relevant. This information will enable the Commission to independently assess the data, and provide the Commission with a means by which to identify errors in the data without having to simply wait for McLane Co. to bring any such errors to the Commission’s attention.[10] See AtBr.38-39.

II. The Commission is Not Required to Make A Preliminary Showing of Systemic Discrimination In Order to be Entitled to Relevant Information.

The district court erred not only in ruling that the pedigree information sought was not relevant, but also in requiring the Commission to first determine that “the IPCS PCE systematically discriminates on the basis of gender,” before the court would even consider whether this information was relevant. ER 9. In so ruling, the court required that the Commission establish the existence of discrimination before the Commission could have access to information that itself bears on that very question. As such, the court’s ruling is not only illogical, but runs directly contrary to Supreme Court and Ninth Circuit precedent. See AtBr.48-53.

It has long been recognized that courts are 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. In Shell Oil, the Court recognized that requiring prior factual support showing the likelihood that a violation had occurred 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.” 466 U.S. at 71 (emphasis in original). “[T]he 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).

Subsequently, the Supreme Court reaffirmed this basic principle in University of Pennsylvania, where the Court stated that when asked to enforce Commission subpoenas, courts should determine the relevance of the requested material without regard to “‘whether the charge of discrimination is ‘well founded’ or ‘verifiable.’” 493 U.S. at 191 (quoting in part Shell Oil, 466 U.S. at 72 n.26). There is no support for the notion that in a subpoena enforcement action, courts should determine the evidentiary foundation of the charge as a condition precedent to enforcement of the subpoena. To the contrary, the Supreme Court made clear that “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.” Shell Oil, 466 U.S. at 71-72 & n.26.

In its response, McLane Co. does not make an explicit attempt to dispute this authority or the well-established rule that a court may not condition the Commission’s access to relevant information on an a priori demonstration of the merits of the charge under investigation. See McLaneBr.41-43. Instead, McLane Co. defends this aspect of the district court’s ruling by asserting that the court “properly required some showing of relevance” to support the Commission’s request for information.[11] McLaneBr.42 (emphasis in original).

McLane Co.’s thinly veiled attempt to support the court’s improper legal standard fails to appreciate the bright-line distinction between demonstrating the relevance of the information sought and demonstrating the existence of an actual violation of the statute—a showing the Commission is not required to make in order to have its subpoena enforced. As argued above, the Commission has satisfied the extremely broad standard for relevance in regard to pedigree information. See supra, at 6-10. It is uncontested that a court cannot require the Commission to determine whether the allegedly unlawful conduct under investigation is in fact unlawful as a condition precedent to accessing relevant information. This is exactly what the district court did here, and in so doing the court committed reversible error.

III. The District Court Erred in Refusing to Enforce the Subpoena as to Information Regarding Why Test Takers Were Terminated.

When, as here, the Commission is investigating a company’s practice of conditioning employment on individuals’ ability to pass a strength test, and individuals who took the test are subsequently terminated, information as to what reasons the company offered for the terminations is, of course, relevant to such an investigation. For example, this information can assist the Commission in determining whether McLane Co. actually terminated all test takers who failed to pass the test and whose continued employment required a passing score, as opposed to terminating women but excusing men who failed to pass the test. See AtBr.54-55. In fact, McLane Co. has not disputed the relevance of this information to the Commission’s investigation and agrees that the district court did not address this issue in its ruling. See McLaneBr.43-45.

Instead, McLane Co. presents a novel argument—that the district court’s undue burden ruling in the Commission’s prior, separate ADEA subpoena enforcement action against McLane Co. controls the question of undue burden in the present Title VII action. See McLaneBr.43-45. McLane Co. is incorrect.

First, McLane Co. failed to present this argument to the district court, and therefore has waived the argument for purposes of appeal. See Galvin v. Hay, 374 F.3d 739, 749 (9th Cir. 2004) (issue preclusion is subject to waiver); ER 43-45 (McLane Co.’s arguments below regarding undue burden, making no mention of issue preclusion).

Second, issue preclusion cannot apply because in the separate ADEA action the district court did not rule on whether providing information regarding the reasons IPCS PCE test takers had been terminated would cause McLane Co. an undue burden. Issue preclusion requires “(1) the issue at stake must be identical to the one alleged in the prior litigation; (2) the issue must have been actually litigated in the prior litigation; and (3) the determination of the issue in the prior litigation must have been a critical and necessary part of the judgment in the earlier action.” Clark v. Bear Stearns & Co., 966 F.2d 1318, 1320-21 (9th Cir. 1992). At the beginning of its Order in the ADEA action, the district court stated that, at an earlier hearing, the Commission had “withdrawn a number of the requests that were made in its initial subpoena,” and that “[t]he motions and hearing focused on requests for [IPCS PCE test results], along with pedigree information and contact information for employees and applicants who had taken this exam. For that reason, this Order is limited to ruling on those requests.” EEOC v. McLane Co., No. 12-615, Order, at 1 (D. Ariz. Apr. 4, 2012). Accordingly, the Commission’s request for the reasons why McLane Co. terminated test takers—the request now at issue in this Title VII action—had been withdrawn in the ADEA action. The question of whether providing the Commission with that information would create an undue burden was not actually litigated and played no role in the judgment in the ADEA action.

Moreover, when the court did address the issue of undue burden in the ADEA action, it ordered McLane Co. to provide the Commission with information as to whether any employee who took the test had suffered any adverse employment action—termination, demotion, etc.—within ninety days of taking the test. Id. at 9-10. The court also concluded that McLane Co. would be unduly burdened if it had to indicate whether such adverse action was “triggered” by the employee failing the test, because McLane Co.’s “human resources database does not capture whether an adverse employment action was in fact triggered by failing the test.” Id. at 10. However, in the present Title VII action, the Commission is not requesting this same “triggering” information; rather, we are requesting the reasons certain McLane Co. employees (test takers) were terminated.

Further, McLane Co. did not make this same “triggering” argument regarding its “human resources” database to the district court here. Instead, McLane Co. argued below that this information is “not included in the IPCS database”—the database the testing company itself maintains regarding tests administered by the testing company. ER 44-45 (emphasis added). McLane Co. did not argue below that the reasons for why it terminated test takers is information that is not included in its PeopleSoft human resources database. See id.

As such, the information at issue and arguments presented by McLane Co. in the present Title VII action regarding whether it would suffer an undue burden if compelled to provide the Commission with information as to why test takers had been terminated, are distinct from the information at issue and arguments the company presented in the ADEA action.

Despite acknowledging that the court did not rule on this issue in this Title VII action, McLane Co. confusingly argues that “the District Court’s determination of undue burden is correct and should be affirmed.” McLaneBr.43-44. However, McLane Co. acknowledges that in the instant Title VII action the district court issued no ruling whatsoever as to this particular information request. McLaneBr.43; see also ER 1-11 (Title VII Order). Simply, there is no “determination of undue burden” that can be “affirmed.”

Conclusion

For these reasons, the Commission respectfully requests that this Court reverse the district court’s ruling refusing to enforce the Commission’s subpoena regarding 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.

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

[1] In fact, the relevance of test takers’ actual experiences with the test to the question of whether the testing program has a disparate impact on women had been made even more clear on appeal, given McLane Co.’s argument that the test “is not designed to mimic job duties” but instead just measures overall strength in shoulders and legs. McLane Co.’s Answering Brief (“McLaneBr.”) 32 (emphasis in original). This contention raises significant questions as to whether the test is lawful. See 29 C.F.R. § 1607.14(C)(4) (attached to AtBr. at Addendum-9) (when assessing the validity of a test measuring a job-related ability, such as strength, “the manner and setting of the [test] and its level and complexity should closely approximate the work situation,” and (“[a]s 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”).

[2] McLane Co. complains that the Commission believes the Ochoa charge entitles it to “troll for victims of some sort of individualized disparate treatment,” and offers as support a selective, incomplete quotation from the Commission’s opening brief regarding how Ochoa’s factual allegation in her charge would support, among other things, an investigation into possible individual disparate treatment. See McLaneBr.36-37. However, in the complete quoted sentence, the Commission stated that the charge supported investigation into “instances of individual disparate treatment, systemic disparate treatment, or disparate impact.” AtBr.32-33. “[I]nstances,” in the plural, referred to these three types of possible violations, not multiple instances of individual disparate treatment. The Commission has not taken the position here that the factual allegation in Ochoa’s charge, on its own, is sufficient to permit the Commission to investigate McLane Co. nationwide for other possible instances of purely individual (non-pattern-or-practice) disparate treatment.

[3] While McLane Co. included hearing transcript pages 16 and 18 in its supplemental excerpts of record, it failed to include page 17—the page where the Commission offers a number of reasons for why pedigree information is relevant to this investigation, and which helps to show that the Commission did not waive this argument below. See McLane Co.’s Supplemental Excerpts of Record (“McLaneSER”) 11-12 (omitting transcript page 17); Comm’nSER 3 (hearing transcript page 17). It also failed to include the memoranda pages cited above where the Commission raised these arguments in the district court.

[4] Moreover, while the Commission was seeking to enforce the subpoena as to both Ochoa’s Title VII and ADA allegations, the Commission’s subsequent decision not to further pursue enforcement of the ADA component of that subpoena (which the district court refused to enforce on different grounds than those relied upon in its Title VII ruling) in no way bars it from continuing to seek enforcement of the Title VII component. McLane Co. has offered no authority to the contrary.

[5] McLane Co. asserts that Merritt is distinguishable because in that case, there was “substantial evidence” “challenging both the existence of the ‘neutral policy’ and the consistency in its application.” McLaneBr.33. In fact, McLane Co.’s argument reinforces the Commission’s position, as McLane Co. implicitly agrees that Merritt recognizes that anecdotal evidence from actual test takers is relevant to whether an employer’s use of a claimed neutral and evenhandedly applied strength test in fact violates Title VII.

[6] McLane Co. states validity was mentioned by the Commission at the hearing after the district court expressed concerns regarding the ADA investigation, thereby suggesting that validity was not discussed in the context of the Title VII investigation. See McLaneBr.31 n.14. However, validity was discussed in the context of the district court’s inquiring into what individualized information the Commission would receive from McLane Co. regarding Ochoa’s sex discrimination charge. McLaneSER 10-12. The court stated “McLane is going to give you at least the gender information of the individual test-takers,” and then shortly thereafter, without any intervening discussion of the ADA claim or investigation, the Commission presented argument on why it nevertheless needed to contact individual test takers, including to determine the test’s validity. McLaneSER 10-11.

[7] McLane Co. also asserts that the Commission does not need nationwide test-taker pedigree information to investigate whether Ochoa was subjected to “individualized disparate treatment.” McLaneBr.29. However, McLane Co. misunderstands that regardless of whether the Commission is also investigating whether Ochoa was subjected to individual disparate treatment, the Commission is entitled to nationwide pedigree information in connection with its investigation into whether she was subjected to systemic pattern or practice discrimination, or disparate impact discrimination. See AtBr.29-33.

[8] McLane Co. did not present this argument below.

[9] On appeal, McLane Co. complains incorrectly that the Commission “accused” it of causing this error without any factual basis for said accusation. McLaneBr.38 n.18. In correspondence to the Commission, McLane Co. stated “[w]hen McLane Sunwest originally collected data from [the testing company], certain duplicate entries were eliminated.” ER 125. The company’s statement, framed in the passive voice, suggests that at the time it took possession of the data from the testing company, it eliminated the duplicates. The Commission acknowledges, however, that the passivity of the statement also leaves it open to McLane Co.’s interpretation. Nevertheless, the issue of who caused the error—McLane Co. or the testing company—is beside the point. The error’s occurrence in the first place shows why the Commission needs an independent means for verifying the test-taker data provided by McLane Co.— such as by use of test takers’ social security numbers.

[10] The Commission agrees with McLane Co. that at the present time, the Commission would not need social security numbers to cross-link McLane Co.’s PeopleSoft database and the testing company’s test-taker database, as the Commission is not presently in possession of those databases. McLaneBr.38. This fact does not, however, diminish the relevance of test takers’ social security numbers to the Commission’s investigation, as described above.

[11] McLane Co. offers no Ninth Circuit or Supreme Court authority in support of its argument, instead relying solely on the Sixth Circuit’s decision in Ford Motor Credit. However, that decision provides no support. In Ford Motor Credit, the Sixth Circuit permitted the Commission to access a broad range of information relating to whether the respondent employer had discriminated against women in promotions, agreeing with the Commission that comparative information is “absolutely essential to a determination of discrimination.” 26 F.3d at 47. The court did narrow the temporal scope of comparative information the Commission was permitted to access, but also permitted the Commission “to petition the district court for access to additional material” subject to demonstration that “such documents are relevant, based on findings emanating from the earlier, more restricted search.” Id. at 48. That is, if the information the Commission initially accessed indicated that other evidence would also be relevant, the Commission was entitled to access that other information. The court did not condition access to additional information on a preliminary showing of the merit of the charge under investigation—only a showing that the additional information was relevant.