TABLE OF CONTENTS

Statement Regarding Oral Argument................................................................. i

Table of Authorities......................................................................................... iv

Statement of Jurisdiction.................................................................................. 1

Statement of the Issue....................................................................................... 2

Statement of the Case....................................................................................... 2

A. Course of Proceedings............................................................................ 2

B. Statement of Facts.................................................................................. 3

C. Proceedings and Disposition Below....................................................... 8

Standard of Review......................................................................................... 10

Summary of Argument................................................................................... 11

Argument........................................................................................................ 13

THE DISTRICT COURT PROPERLY ENFORCED THIS SUBPOENA AND THIS COURT SHOULD AFFIRM THAT ORDER ............................................ 13

A. The Charges Here Met Title VII’s Statutory Requirements

For a Valid Charge ........................................................................ 15

B. EEOC’s Authority to Investigate Charges of Discrimination

And Pursue Claims Based On Its Reasonable Investigation of Those

Charges Is Not Curtailed By The Issuance of a Right-to-Sue Notice,

The Filing of a Private Lawsuit, or Resolution of That Lawsuit .... 18

1. EEOC represents the broader interests of the public when it exercises its investigative and enforcement authority ..................................... 18

2. EEOC’s regulations, which are entitled to deference, permit EEOC to continue investigating a charge after the issuance of a right-to-sue notice.. 25

3. Hearst was wrongly decided and does not control this case.... 31

C. EEOC Established That the Subpoena Seeks Relevant Evidence .... 33

1. UP waived any relevancy argument........................................ 33

2. The subpoena seeks relevant evidence.................................... 35

Conclusion...................................................................................................... 39

Short Appendix

Certificate of Compliance

Certificate of Service

Table of Authorities

Page(s)

Cases

Auer v. Robbins, 519 U.S. 452 (1997) ............................................................ 26

Burwell v. Hobby Lobby Stores, Inc.,
___U.S. ___, 34 S. Ct. 2751 (2014)........................................................... 39

Chevron, USA v. Natural Resources Defense Council,
467 U.S. 837 (1984)............................................................................. 26, 27

Colby v. J.C. Penney Co.,
811 F.2d 1119 (7th Cir. 1987)................................................................... 31

Dow Chemical Co. v. Allen,
672 F.2d 1262 (7th Cir. 1982)................................................................... 10

EEOC v. A.E. Staley Manufacturing Co.,
711 F.2d 780 (7th Cir. 1983)..................................................................... 15

EEOC v. Bay Shipbuilding Corp,
668 F.2d 304 (7th Cir. 1981)....................................................................... 1

EEOC v. Caterpillar, Inc.,
409 F.3d 831 7th Cir. (2005)..................................................................... 21

EEOC v. Commercial Office Products Co.,
486 U.S. 107 (1988) (O’Connor, concurring)............................................ 31

EEOC v. Federal Express Corp.,
558 F.3d 842 (9th Cir. 2009).......................................... 9, 13-14, 29, 32, 39

EEOC v. General Electric Co.,
532 F.2d 359 (4th Cir. 1974)............................................................... 24, 36

EEOC v. Harris Chernin, Inc.,
10 F.3d 1286 (7th Cir. 1993)............................................................... 20, 21

EEOC v. Harvey L. Walner & Associates,
91 F.3d 963 (7th Cir. 1996)................................................................. 22, 23

EEOC v. Hearst Corp.,
103 F.3d 462 (5th Cir. 1997)................................................................ 31-33

EEOC v. Huttig Sash & Door Co.,
511 F.2d 453 (5th Cir. 1975)............................................................... 21, 33

EEOC v. Keco Industries, Inc.,,
639 F.3d 366 (7th Cir. 2011)............................................................... 25, 29

EEOC v. Konica Minolta Business Solutions, Inc.,
639 F.3d 366 (7th Cir. 2011)..................................................................... 36

EEOC v. Lockheed Martin Corp.,
116 F.3d 110 (4th Cir. 1997)..................................................................... 38

EEOC v. North Hills Passavant Hospital,
544 F.2d 644 (3rd Cir. 1976)..................................................................... 28

EEOC v. Pemco Aeroplex, Inc.,
383 F.3d 1280 (11th Cir. 2004)................................................................. 22

EEOC v. Quad/Graphics, Inc.,
63 F.3d 642 (7th Cir. 1995)....................................................................... 10

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

EEOC v. Roadway Express, Inc.,
261 F.3d 634 (6th Cir. 2001)..................................................................... 36

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

EEOC v. Sidley Austin Brown & Wood,
315 F.3d 699 (7th Cir. 2002)....................................................................... 1

EEOC v. Temple Steel Co.,
814 F.2d 482 (7th Cir. 1987)................................................................ 13-14

EEOC v. United Airlines, Inc.,
287 F.3d 643 (7th Cir. 2002)............................................................... passim

EEOC v. Waffle House, Inc.,
534 U.S. 279 (2002)........................................................... 23-24, 28, 31, 33

EEOC v. Watkins Motor Lines, Inc.,
553 F.3d 593 (7th Cir. 2009)........................................................... 1, 17, 21

EEOC v. Union Pacific Railroad, Co.,
Misc. No. 13-mc-22 (E.D. Wisc.)................................................................... 6

Faas v. Sears Roebuck & Co.,
532 F.3d 633 (7th Cir. 2008)..................................................................... 35

Federal Trade Commission v. Texaco, Inc.,
532 F.3d 633 (7th Cir. 2008)..................................................................... 29

Frank Burks and Cornelius Jones v. Union Pacific Railroad, Co.,
2012 C. 8164 (N.D. Ill. 2014)...................................................................... 9

General Telephone Co. of the Northwest v. EEOC,
446 U.S. 318 (1980)............................................................................ passim

Humble v. Boeing Co.,
305 F.3d 1004 (9th Cir. 2002)................................................................... 35

Kamen v. Kemper Financial Services, Inc.,
500 U.S. 90 (1991)..................................................................................... 38

Mays v. Bowen,
837 f.2d 1362 (5^th Cir. 1988)........................................................................ 8

National Cable & Telecommunications Association v. Brand X Internet Services, 545 U.S. 967 (2005)................................................................................... 26

Occidental Life Insurance Co. of California v. EEOC,
432 U.S. 355 (1977)....................................................................... 20, 31, 32

United States v. Mead Corp.,
533 U.S. 218 (2001)................................................................................... 30

University of Pennsylvania v. EEOC,
493 U.S. 182 (1990)....................................................................... 14, 33, 37

Statutes

28 U.S.C. §1291............................................................................................... 2

28 U.S.C. §1345............................................................................................... 1

National Labor Relations Act,

.... 29 U.S.C. §161........................................................................................ 1, 3

Title VII of the Civil Rights Act of 1964,

... 42 U.S.C. § 2000e-5(a).............................................................................. 22

.... 42 U.S.C. § 2000e-5(b)........................................................................ 12, 14

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

.... 42 U.S.C. § 2000e-8 (c)................................................................................ 1

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

Other Authorities

29 C.F.R. §1601.10........................................................................................ 25

29 C.F.R. §1601.12(a), 29 C.F.R. § 1601.12(a).............................................. 14

29 C.F.R. §1601.16.......................................................................................... 1

29 C.F.R. §1601.19........................................................................................ 25

29 C.F.R. §1601.20........................................................................................ 25

29 C.F.R. §1601.21........................................................................................ 25

29 C.F.R. §1601.28(a)(3).............................................................. 25, 28, 29, 32

1 EEOC Compliance Manual §6.4 (June 2006).............................................. 25

STATEMENT OF JURISDICTION

The district court had jurisdiction under 42 U.S.C. §§2000e-5(f) and 2000e-8 (c), which authorize a district court to adjudicate subpoena enforcement actions filed by EEOC, and under 28 U.S.C. §1345, which creates subject matter jurisdiction for any suit filed by the United States or one of its agencies. See EEOC v. Watkins Motor Lines, Inc., 553 F.3d 593, 595 (7th Cir. 2009). EEOC is authorized to issue a subpoena requiring production of documents, 29 U.S.C. §161(1), and if the employer under investigation refuses to comply, EEOC may apply to a federal court for enforcement of the subpoena. 29 U.S.C. §161 (2), and 29 C.F.R. §1601.16; see also EEOC v. Bay Shipbldg. Corp, 668 F.2d 304, 308-09 (7th Cir. 1981) (EEOC has jurisdiction to bring an administrative subpoena enforcement proceeding in federal court). Pursuant to those provisions, on October 15, 2015, the district court entered an order granting EEOC’s application to enforce the subpoena.

The district court’s order enforcing the subpoena is a final order that is ripe for review. See EEOC v. Sidley Austin Brown & Wood, 315 F.3d 699 (7th Cir. 2002). Union Pacific filed a timely notice of appeal on November 2, 2015. This Court has jurisdiction over this appeal under 28 U.S.C.

§1291.

STATEMENT OF THE ISSUE

Did the district court properly enforce EEOC’s administrative subpoena?

STATEMENT OF THE CASE

A. Course of Proceedings

This subpoena enforcement action arises from an ongoing investigation, initiated in response to two charges filed by former UP employees alleging that UP violated Title VII on the basis of race and in retaliation for opposing race discrimination. R.^{^[1]} 4-7 at 14-15. EEOC has not yet determined if it believes UP violated Title VII. Among the unanswered questions is whether UP has a practice of depriving entry-level Signal Helpers promotion to Assistant Signal Person (“ASP”) jobs on the basis of their race, black. UP provided EEOC with tables demonstrating that no black ASP applicants were promoted in the division in which the charging parties worked. R.4-3 at 7-9. EEOC sought, ultimately by subpoena, information that included the Skilled Craft Battery Test (“SCBT”) required for promotion to ASP jobs and detailed information about all UP Signal Helpers who requested promotion to ASP jobs. R.4 at 2. UP only partially complied with this request. It did not provide the requested SCBT data and refused to provide any of the information about Signal Helpers EEOC sought except for information directly related to the charging parties. Id. at 3. On March 28, 2013, EEOC filed a miscellaneous action to enforce the subpoena (SA-5) and on August 6, 2013, during a conference in chambers, UP agreed to produce all the outstanding information set forth in the subpoena. SA-10. UP provided the SCBT data but did not provide the company-wide data. EEOC’s investigation continued. UP refused to produce follow-up data explaining how UP generated and stored the promotion-related information already produced. R.4 at 7-8. The company also refused to provide additional testing data, computer and software information, and the details about other UP Signal Helpers who sought promotion to ASP jobs that EEOC had requested. Id.

EEOC brought this subpoena enforcement action pursuant to section 710 of Title VII, which provides that section 11 of the National Labor Relations Act, 29 U.S.C. §161, applies to all investigations conducted by EEOC. 42 U.S.C. § 2000e-9. The district court enforced the subpoena.

B. Statement of Facts

On January 3, 2011, Frank Burks and Cornelius L. Jones Jr., both black, began working at UP as Signal Helpers. R.3-4 at 3. Burks stated that he applied for promotion to ASP in October 2011. R.3-4 at 9. Jones stated that he first applied for promotion to ASP in May 2011, contacted his union when he did not receive a response, and reapplied in June 2011. Id. After again receiving no response, he reapplied once more in September 2011. Id. Burks and Jones both stated that UP did not respond to any of their applications. Id. On October 10, 2011, UP terminated Burks and Jones. R.4-1 at 2; R.4-2 at 2. On October 31, 2011, and November 4, 2011, respectively, Burks and Jones filed with EEOC charges alleging that UP discriminated against them on the basis of race, black, when it denied them the opportunity to take a test for promotion to ASP jobs and terminated their employment.^{^[2]} Id.

On December 18, 2011, UP responded to EEOC’s notification that the charges had been filed. R.4-3 at 2-9. Melissa Schop, UP’s EEO manager, sent to EEOC a letter labeled as UP’s position statement. Id. at 2. Attached to UP’s position statement were exhibits B and C, tables UP created that listed Signal Helpers working in 2011 in Burks’s and Jones’s district. Id. at 7-9. Eighteen Signal Helpers are listed as having applied for promotion: Eleven white, six black, and one Hispanic. Id.^{^[3]} Of the eleven white applicants, ten passed the test and were given the promotion; one failed the test and was denied the promotion. Id. The one Hispanic individual who applied passed the test and was promoted. Id. at 8. The two charging parties, both black, are the only individuals listed as having applied for promotion but not having taken the SCBT. Id. And none of the four black applicants who took the test was promoted. Id. No information on UP’s tables explains why UP did not promote these black applicants. Id. In contrast, UP’s table states that the reason the one white applicant was not promoted was because he failed the test. Id.

On March 12, 2012, EEOC sent UP its first Request for Information (“RFI”) seeking, among other things, a copy of the SCBT used by UP to promote Signal Helpers to ASP jobs and company-wide information about persons who sought the ASP position during the relevant period.^{^[4]} R.4 at 4. After UP refused to comply with this and other EEOC investigative requests, EEOC issued a subpoena (“First Subpoena”). Id. at 2. UP petitioned administratively to revoke that subpoena in part and, when that was unsuccessful, continued its refusal to comply, requiring EEOC to file for enforcement and leading to the parties’ first legal battle in this case, EEOC v. Union Pacific R.R. Co., Misc. No. 13-mc -22 (E.D. Wisc.) (Adelman) (“First Action”). SA-5. UP enlisted Aon Corporation, the creator of the SCBT, to join it in opposing the First Action and filed an unsuccessful motion to dismiss. SA-2-3.

UP initially objected to producing the information requested by the First Subpoena on the grounds that EEOC allegedly lost its authority to continue investigating the Burks and Jones charges when it issued right to sue notices in July 2012 and when Burks and Jones filed their own lawsuit. R.4 at 3-4. It also argued that the information sought was not relevant to EEOC’s investigation of those charges. Id. at 4. Thereafter, however, UP provided the collective bargaining provisions relevant to promotion and testing and the applications for ASP jobs for each employee listed in UP’s position statement. Id. And during a court conference on August 6, 2013, UP stated that its only objection to the subpoena was premised on confidentiality issues with Aon regarding the SCBT information. SA-7-10. Those issues were then resolved and counsel for UP stated it would produce identification information, including test results, for all individuals seeking ASP jobs at UP who took the SCBT test during the relevant time. Id. at 10. (UP’s counsel states that she “will produce [items in response to Item 4] in the next few days”). UP never provided EEOC with the company-wide information it stated it would “produce . . . in the next few days.” Id.

EEOC sent UP a second Request for Information on January 28, 2014, seeking, among other things, further details about UP’s electronic systems that were queried to obtain the information UP had provided, additional testing and computer information, and details about Signal Helpers company-wide who were similarly-situated with charging parties.^{^[5]} R.4-5 at 2-4. UP refused to provide the requested information and EEOC issued a subpoena for that information on May 15, 2014 (“Second Subpoena”) – the subpoena that is at issue in the present action (“Second Action”). R.4-7 at 10-13.

UP petitioned administratively to revoke or modify the Second Subpoena on May 23, 2014. R. 4-7 at 1-8. It made the same arguments in its petition that it had made to Judge Adelman with respect to the First Subpoena: that EEOC relinquished its authority to continue investigating the charges when Burks and Jones requested that EEOC issue right to sue notices and then filed their own lawsuit; and that the information sought is not relevant to EEOC’s investigation of those charges. Id. UP’s petition did not say why the information sought is irrelevant other than to argue that it is improper for EEOC to seek class-wide information based on individual charges. Id. EEOC denied UP’s petition on June 30, 2014.^{^[6]} R.4-8 at 18.

C. Proceedings and Disposition Below

UP continued to refuse to comply with the subpoena and on September 25, 2014, EEOC filed this application for an order enforcing the subpoena. In response, UP filed a motion to dismiss. R.7. UP once again argued that the Commission lost its investigatory authority due to the issuance of the right-to-sue notices and Burks’s and Jones’s filing of a lawsuit. R.4-8 at 8. Additionally, UP argued that the Commission’s investigatory authority was lost when on July 7, 2014, the district court granted UP summary judgment in that lawsuit and dismissed the case. R.3-4 at 19 (Frank Burks and Cornelius Jones v. Union Pacific R.R. Co., 2012 C. 8164 (N.D. Ill. 2014)). UP also asserted that the information sought was not relevant to the charges filed. Id. at 13.

On May 1, 2015, the district court denied UP’s motion to dismiss (R.13) and after this Court dismissed UP’s appeal of that order for lack of jurisdiction (R.22), the district court ultimately granted EEOC’s application (R.24). Recognizing a split in the circuits, the court found “more persuasive” the court’s reasoning in EEOC v. Federal Express Corp., 558 F.3d 842, 854 (9th Cir. 2009), and “conclude[d] that the issuance of right-to-sue notices, complainants’ civil suit, and the judgment in favor of Union Pacific do not divest EEOC of authority to continue its investigation.” R.13 at 3-4. The court pointed to the lack of statutory or regulatory support for the contrary result urged by UP and noted EEOC’s broad authority to vindicate the public’s interest, not merely the interest of the charging parties, citing to Supreme Court and this Court’s authoritative precedent. Id. at 4-6. Finally, the court found that the subpoena is relevant to the charges being investigated. Noting that EEOC learned in its investigation that none of the ten persons promoted to the positions charging parties sought were black, the district court held that this information “justified [EEOC] . . . seeking evidence related to a pattern or practice of discrimination despite the fact that the charges do not specifically allege a pattern or practice.”^{^[7]} Id. at 6-7.

STANDARD OF REVIEW

This Court reviews deferentially a district court’s decision to enforce a subpoena. A determination by the district court that the documents sought by an EEOC subpoena are relevant to a legitimate agency purpose cannot be overturned absent a showing that the factual determinations on which it is based are clearly erroneous or that the ruling itself constitutes an abuse of discretion. EEOC v. United Air Lines, 287 F.3d 643, 649 (7th Cir. 2002) (quoting Dow Chem. Co. v. Allen, 672 F.2d 1262, 1267 (7th Cir. 1982)); see also EEOC v. Quad/Graphics, Inc., 63 F.3d 642, 645 (7th Cir. 1995) (quoting same). Errors of law that do not depend on the district court’s factual findings, including questions of jurisdiction, are reviewed de novo. United Air Lines, 287 F.3d at 649 (reviewing de novo employer’s assertion that international treaty divested EEOC of authority).

SUMMARY OF ARGUMENT

The district court properly enforced EEOC’s administrative subpoena seeking information from UP in an investigation rooted in Burks’s and Jones’s charges alleging discrimination in promotion to ASP jobs on the basis of race. As UP admits, the scope of judicial inquiry in a subpoena enforcement action is quite narrow. A district court may not consider the merits of the underlying charge. Instead, a court must determine whether: 1) there is a valid charge (meaning that it satisfies the statute’s requirements for what a charge must contain); 2) EEOC is authorized to investigate; 3) the procedural requirements have been met; and, 4) the evidence sought is relevant to the investigation. If so, the court must enforce the subpoena unless the employer proves that the inquiry is overbroad or unduly burdensome.

The district court properly applied this standard in enforcing EEOC’s subpoena. UP does not dispute that Burks’s and Jones’s charges satisfy Title VII’s requirements for a valid charge. Nor does UP dispute that EEOC satisfied all procedural requirements for issuance of the subpoena. UP argues instead that these valid charges were converted into “invalid charges” when the charging parties obtained right-to-sue notices and proceeded in district court through a private action. By this, UP appears to mean both that Title VII prohibits an EEOC investigation from continuing after a charging party files suit and that Title VII prohibits EEOC from filing a lawsuit after the charging parties have initiated litigation. Both assertions are incorrect.

Nothing in Title VII, Supreme Court or Seventh Circuit precedent, or Title VII’s legislative history prohibits EEOC from continuing its investigation or from filing its own enforcement action after a charging party has filed suit. EEOC can, at a minimum, file its own suit seeking relief for victims excluded from the private action, seeking broader relief than that awarded in any private action, or alleging new violations discovered during the course of a reasonable investigation. All of these options, however, require under Title VII that EEOC first complete an investigation, find reasonable cause, and attempt conciliation before filing suit. The Commission’s own regulations also explicitly permit EEOC to continue processing a charge after issuing a right-to-sue notice when doing so effectuates the purposes of Title VII.

UP failed to develop any substantive argument in its opening brief about why the information requested by the subpoena is not relevant. Instead it merely restates that EEOC’s investigations are strictly limited to the four corners of the charge regardless of any other discrimination uncovered.

The Supreme Court has recognized that “courts have generously construed the term ‘relevant’ and have afforded the Commission access to virtually any material that might cast light on the allegations against the employer.” EEOC v. Shell Oil, 466 U.S. 54, 68-69 (1984) (internal citation omitted). EEOC’s investigation uncovered information suggesting that the adverse actions alleged in the charges may evidence a deeper pattern of discrimination. The subpoena was tailored to obtain further information to determine whether the race discrimination alleged by the charging parties extended to others who sought the same promotion during the same time frame. For that reason, it satisfies this generous legal standard.

ARGUMENT

THE DISTRICT COURT PROPERLY ENFORCED THE SUBPOENA AND THIS COURT SHOULD AFFIRM THAT ORDER.

UP concedes, as it must, that the role of the court is “sharply limited” in an administrative subpoena enforcement action. EEOC v. Temple Steel Co., 814 F.2d 482, 485 (7th Cir. 1987); UP br. at 13. “As long as the investigation is within the agency’s authority, the subpoena is not too indefinite and the information sought is reasonably relevant, the district court must enforce an administrative subpoena.” United Air Lines, 287 F.3d at 649 (quoting Temple Steel, 814 F.2d at 485). See also EEOC v. Federal Exp., 558 F.3d 842, 849 (9th Cir. 2009) (“unless jurisdiction is ‘plainly lacking,’ the court should enforce the subpoena.”) (internal citations omitted).

This limited level of review is consistent with the broad authority that Title VII provides to EEOC to carry out its Congressional mandate to investigate charges of discrimination. EEOC “exists to advance the public interest in preventing and remedying employment discrimination,” General Telephone Co. of the Northwest v. EEOC, 446 U.S. 318, 331 (1980), and its authority to investigate discrimination charges is crucial to that goal. Title VII directs the EEOC to investigate charges of discrimination, determine whether there is reasonable cause to believe charges are true, and conciliate reasonable cause charges. 42 U.S.C. §2000e-5(b). If conciliation fails, EEOC may file its own enforcement action. 42 U.S.C. §2000e-5(f)(1). “To enable the Commission to make informed decisions at each stage of the enforcement process,” Congress imbued EEOC with “a broad right of access to relevant evidence.” University of Penn. v. EEOC, 493 U.S. 182, 191 (1990). See also Shell Oil Co., 466 U.S. at 68-69 (1984) (Title VII’s statutory language and legislative history entitle EEOC to “virtually any material that might cast light on the allegations against the employer”).

UP, ignoring this precedent, disagrees. According to UP, because EEOC does not have “‘unconstrained’” or “‘plenary power’” to investigate, that necessarily means that EEOC’s subpoena power is not “broad.” UP br. at 17-18 (internal quotations omitted). Although UP is correct that EEOC’s power of investigation may begin only with the filing of a charge, “[t]his Circuit has long recognized that EEOC has broad investigatory powers to investigate violations of Title VII.” EEOC v. A.E. Staley Mfg. Co., 711 F.2d 780, 783 (7th Cir. 1983) (string citation omitted).

As the district court properly concluded, there is no support for that position. See, e.g., R.13 at 4-6. (“Title VII invests the EEOC with broad authority to investigate valid charges of discrimination . . . and to bring a lawsuit based on that investigation . . . [and such a lawsuit] ‘is not confined to the specific allegations in the charge’”) (internal citation omitted).

A. The Charges Here Met Title VII’s Statutory Requirements

For a Valid Charge

A valid charge is a condition precedent for EEOC’s issuance of a subpoena. The Supreme Court has explicitly defined a “valid charge” as one “that meets the requirements set forth in § 706(b).” Shell Oil, 466 U.S. at 65; accord United Air Lines, 287 F.3d at 650, n.2. Section 706(b) requires that a charge be in writing, under oath or affirmation, and include a clear and concise statement of facts. Whether a charge satisfies these factors “is determined from the face of the charge, not from extrinsic evidence.” United Air Lines, 287 F.3d at 630.

Here, although UP repeatedly characterizes the underlying charges as “invalid,” it tellingly does not deny that both Burks’s and Jones’s charges satisfy the requirements of 42 U.S.C. §2000e-5(b). Nor could it. Both charges were made in writing under oath and both contained the information specified in 29 C.F.R. §1601.12(a).^{^[8]} Thus, despite its characterization, UP does not in fact dispute that the subpoena is based on valid charges as defined by the statute. Nor does UP assert that EEOC failed to satisfy the procedural requirements for issuance of the subpoena. Instead, ignoring the statutory language and governing regulations, UP argues that the charges are “invalid” based on the unsupportable premise that a district court’s resolution of a private discrimination claim in favor of an employer converts the underlying valid EEOC charges into invalid ones.

In its brief, rather than discussing this premise to its argument, UP argues what is not in dispute: EEOC’s investigations cannot be grounded on an invalid charge. That is beyond peradventure. However, what UP does not discuss is the basis for its assertion that the at-issue charges were invalidated by a court order brought in a different action by private litigants. The question is not whether EEOC can pursue an investigation on an invalid charge; the question is whether the at-issue charges are invalid charges. They are not.

There is no support for UP’s argument that a valid charge that triggers EEOC’s investigative authority is transformed into an invalid charge, thereby eradicating EEOC’s authority, by subsequent events having nothing to do with whether the charge satisfies the requirements of section 706(b). Indeed, such an argument contradicts existing precedent. This Court has held that once a valid charge is filed and EEOC’s authority to investigate is triggered, a “court cannot rewrite history” by going back and relabeling, as if a valid charge was not filed. Watkins Motor Lines, 553 F.3d at 597 (a claimant’s withdrawal of a charge does not negate the charge’s validity).

UP’s attempt to find support in this Court’s decision in United Air Lines is unavailing. Similar to UP in this case, the respondent in United Air Lines argued that the underlying charge was invalid based on external evidence. This Court rejected the argument. The validity of a charge is determined from the face of the charge, the Court explained, and held that United’s failure to “point to any infirmities in the charge” was fatal to its claim. United Air Lines, 287 F.3d at 650-51. Just like United Air Lines, UP points to no infirmities on the face of the charges. UP’s argument that the charges were invalid despite meeting Title VII’s statutory and regulatory requirements cannot be squared with section 706, Shell Oil or this Court’s jurisprudence and should be rejected.

B. EEOC’s Authority to Investigate Charges of Discrimination

And Pursue Claims Based On Its Reasonable Investigation of Those Charges Is Not Curtailed By The Issuance of a Right-to-Sue Notice, the Filing of a Private Lawsuit, or Resolution of That Lawsuit.

1. EEOC represents the broader interests of the public

when it exercises its investigative and enforcement authority.

UP misstates the scope of EEOC’s investigative and enforcement authority. UP takes the position that any discrimination EEOC discovers during a reasonable investigation that is outside of the parameters of the specific allegations in the charge is necessarily disconnected or “unfastened from a valid charge.” UP br. at 16. For this reason, according to UP, EEOC lacks the authority to investigate discrimination it uncovers if the discrimination goes beyond the precise allegations in the charge. UP contends further that even if EEOC reasonably discovers discriminatory practices related to the charge’s allegations, EEOC loses its authority to pursue and vindicate that discrimination if a right-to-sue notice is issued or if the charging party and the employer resolve their dispute either independently or through court processes. In support, UP relies primarily on its interpretations of Title VII, the Supreme Court’s decision in Shell Oil, 466 U.S. at 64-65 and this Court’s decision in United Air Lines, 287 F.3d at 653. UP, however, is mistaken in those interpretations.

In 1972, Congress amended Title VII to give EEOC the authority to sue employers as a means “to implement the public interest as well as to bring about more effective enforcement of private rights.” General Tel., 446 U.S. at 326; 42 U.S.C. §2000e-5(f)(1) (authorizing EEOC to bring a civil suit against a private employer). The Supreme Court and this Court have repeatedly recognized the critical role EEOC plays in Title VII enforcement and that this role differs significantly from that of a private party suing to enforce individual rights under Title VII. “When the EEOC acts, albeit at the behest of and for the benefit of specific individuals, it acts also to vindicate the public interest in preventing employment discrimination.” General Tel., 446 U.S. at 326; see also EEOC v. Harris Chernin, Inc., 10 F.3d 1286, 1291 (7th Cir. 1993) (EEOC’s “interests are broader than those of the individuals injured by discrimination”). Accordingly, the Supreme Court has noted that under the 1972 amendments, “EEOC does not function simply as a vehicle for conducting litigation on behalf of private parties.” Occidental Life Ins. Co. of California v. EEOC, 432 U.S. 355, 368 (1977); see also General Tel., 446 U.S. at 326 (holding that “EEOC is not merely a proxy for the victims of discrimination” and stating that under the 1972 amendments EEOC “was to bear the primary burden of litigation”).

Congress’s grant to EEOC of new enforcement authority was designed to supplement – not replace – the right of private individuals to file their own actions. Id. Under the 1972 amendments, once EEOC has filed an enforcement action, a charging party loses the right to institute an independent action but “shall have the right to intervene” in EEOC’s litigation. 42 U.S.C. §2000e-5 (f)(1). Conversely, Title VII provides that if a charging party initiates a private action, EEOC may seek the court’s permission to intervene “upon certification that the case is of general public importance.” Id. EEOC may move to expand the suit when it intervenes. Harris Chernin, 10 F.3d at 1292 (EEOC may seek permission to intervene in a private action to vindicate broader interests “of general public importance”).

Title VII authorizes EEOC to file an independent action based on violations not included in a charge but “ascertain[ed] in the course of a reasonable investigation.” General Tel., 446 U.S. at 331 (EEOC actions are not limited to claims presented by charging parties); Watkins Motor Lines, 553 F.3d at 597 (EEOC “is entitled to vindicate the interests of all employees”); EEOC v. Caterpillar, Inc., 409 F.3d 831, 832 (7th Cir. 2005) (EEOC “may seek relief on behalf of individuals beyond the charging parties who are identified during the investigation”) (internal quotation omitted). Accord, EEOC v. Huttig Sash & Door, 511 F.2d 453, 454-55 (5th Cir. 1975) (noting that EEOC may use the filing of a charge “as a jurisdictional springboard to investigate whether the employer is engaged in any discriminatory practices” in addition to those alleged in the charge and holding that after a private party dismisses his action, EEOC can bring an action “predicated on, but not limited to” the charge). Indeed, this Court has made clear that “EEOC has standing to bring the civil action in its own name to challenge a practice or policy that represents ongoing discrimination” after a charge has been filed and EEOC determines that discrimination occurred. EEOC v. Harvey L. Walner & Assoc., 91 F.3d 963, 968 (7th Cir. 1996). Accordingly, UP’s assertion, also argued by UP’s amicus, that EEOC cannot bring an independent action based on an individual’s charge and therefore lacks authority in this preliminary administrative phase to issue a subpoena, as recognized by the district court below, is inconsistent with controlling precedent. Compare UP br. at 20 and Am. br. at 9-10 (EEOC “no longer has any right to act” after a charging party has been issued a right-to-sue notice and a private action has commenced), with R.13 at 6 (resolution of the charging parties’ claims “does not deprive EEOC of continuing authority to investigate,” citing Shell Oil, 466 U.S. at 69-70).

Here, Burks and Jones both filed charges alleging that UP discriminated against them on the basis of race by impeding their ability to take required tests, otherwise denying them opportunity for promotion to ASP jobs, and then firing them in October 2011. After EEOC learned through its investigation of these charges that UP filled ten ASP jobs by internal promotion in 2011 in the district where Burks and Jones worked and that none of the individuals promoted were black, EEOC sought additional information to determine whether UP was discriminating against blacks as a class. If the information it sought revealed that UP violated Title VII, EEOC could potentially file a lawsuit based on the underlying charges seeking relief for similarly situated employees. Such a lawsuit would not be a duplicate proceeding. See Harvey L. Walner, 91 F.3d at 968 (Title VII bestows on EEOC “expanded enforcement power [] designed ‘to supplement, not replace, the private action’ available to aggrieved persons”) (quoting General Tel., 446 U.S. at 326). See also EEOC v. Pemco Aeroplex, 383 F.3d 1280, 1294 (11^th Cir. 2004) (after thirty-six black employees filed a race discrimination lawsuit, EEOC filed its own Title VII action alleging race discrimination and seeking relief for all of the employer’s 200 black employees); Kimberly-Clark, 511 F.2d at 1363 (it “would not be duplicitous [sic] to allow” EEOC’s suit and a private party’s suit to go forward where EEOC’s suit seeks relief going beyond that requested in the private action).

Before EEOC could file any lawsuit, however, it must complete an investigation to determine if there is reasonable cause to believe a violation occurred and attempt conciliation.

The ruling that UP seeks would improperly preclude EEOC from determining, based on evidence obtained during the course of a reasonable investigation of the charges, whether UP engaged in additional statutory violations not alleged in the charges and from filing any enforcement action based on those violations. Cf. Caterpillar, 409 F.3d at 833 (“The charge incites the investigation, but if the investigation turns up additional violations the Commission can add them to its suit.”). The consequence of such a ruling would be to severely undermine EEOC’s ability to carry out its statutory mission “to prevent any person from engaging in any unlawful employment practice.”^{^[9]} 42 U.S.C. §2000e-5(a); see also Shell Oil, 466 U.S. at 61-62 (“Primary responsibility for enforcing Title VII has been entrusted to the EEOC”); id. at 69 (“[I]t is crucial that the Commission’s ability to investigate charges of systemic discrimination not be impaired.”)

UP suggests that if EEOC has interests beyond those of Burks and Jones, it may file a Commissioner charge. UP br. at 20. This is no answer. Nothing in Title VII or this Court’s precedent requires the EEOC to secure a Commissioner charge whenever it uncovers evidence of discrimination broader than that alleged in the original charge. See, e.g., EEOC v. Kronos, Inc., 620 F.3d 287, 300-02 (3d Cir. 2010) (where EEOC received charges alleging individual claim, court allowed agency to investigate nationwide class claim without requiring agency to issue Commissioner charge); EEOC v. General Elec. Co., 532 F.2d 359, 364 (4th Cir. 1974) (holding that “[i]f EEOC uncovers during that investigation facts which support a charge of another [type of] discrimination [other] than that in the filed charge, it is neither obliged to cast a blind eve over such discrimination nor to sever those facts and the discrimination so shown from the investigation in process and file a Commissioner’s charge thereon, thereby beginning again a repetitive investigation of the same facts already developed in the ongoing investigation”); cf. EEOC v. Keco Indus., Inc., 748 F.2d 1097, 1101 (6th Cir. 1984) (holding that EEOC did not have to start a new investigation to determine whether other employees suffered the same type of discrimination alleged by the individual charging party).

2. EEOC’s regulations, which are entitled to deference, permit EEOC to continue investigating a charge after the issuance of a right-to-sue notice.

As the district court stated, EEOC’s regulations permit the Commission to continue investigating a charge after issuing a right-to-sue notice. Section 1601.28(a)(3) states: “Issuance of a notice of right[-] to[-] sue shall terminate further proceeding of any charge that is not a Commissioner charge unless” an authorized official “determines at that time or at a later time that it would effectuate the purpose of Title VII . . . to further process the charge.” 29 C.F.R. § 1601.28(a)(3). The Commission interprets the regulation to permit continued investigation as part of further processing of the charge. See 1 EEOC Compliance Manual §6.4 (June 2006).

As UP correctly notes, where, as here, a statute is silent on a particular issue, and the agency charged with the statute’s enforcement fills the gap by regulation, the question for the court is whether the regulation “is based on a permissible construction of the statute.” Chevron, USA v. Natural Res. Def. Council, 467 U.S. 837, 842 (1984). If so the regulation is entitled to deference. See id. at 844-45. Moreover, EEOC’s interpretation of the governing regulations as permitting further investigation is consistent with the regulations and hence is “controlling.” Auer v. Robbins, 519 U.S. 452, 461-62 (1997).

In arguing that the regulation is “not entitled to any deference,” UP does not aver that Title VII unambiguously requires EEOC to cease its investigation after a charging party obtains a right-to-sue notice or resolves the underlying charge. UP br. at 24. Rather UP argues that “nothing in Title VII” precludes such a reading. Id. at 22-23. However, that is not the standard.

Courts are not charged with the responsibility of displacing the agency’s construction of the statute unless that construction is unambiguously foreclosed by the statutory terms. Congress delegated to the agency charged with administering the statute the task of clarifying ambiguities in it. “Filling these gaps . . . involves difficult policy choices that agencies are better equipped to make than courts.” Nat’l Cable & Telecommunications Ass’n v. Brand X Internet Servs., 545 U.S. 967, 980 (2005) (citing Chevron, 467 U.S. 865-66). Therefore, in the absence of an argument that Title VII plainly requires EEOC to cease investigation upon the issuance of a right-to-sue notice, EEOC’s regulation stands.

In any event, UP’s argument that the court erred in relying on the regulation because it is inconsistent with Title VII’s “overall design” is without support. UP br. at 23. To the contrary, both Title VII’s plain language and its “overall design” make clear that neither the issuance of right-to-sue notices nor the filing of a private action necessarily terminates the investigatory and enforcement authority Congress granted to the EEOC.

Title VII requires the filing of a charge that meets the requirements set forth in section 706. That charge serves as the jurisdictional basis for a subpoena as long as EEOC has not resolved or dismissed the charge. A charge may be resolved through a finding of cause, 29 C.F.R. §1601.21; a determination that EEOC will not find cause, 29 C.F.R. §1601.19; or dismissal, 29 C.F.R. §1601.19. Or, charges can be dismissed 1) if they are withdrawn by the charging party AND “with the consent of the Commission,” 29 C.F.R. §1601.10; or 2) as a result of a negotiated settlement, 29 C.F.R. §1601.20. None of these five forms of charge disposition occurred in this case. In the absence of these occurrences, Title VII’s multistep enforcement scheme authorizes EEOC to continue its investigation even if the charging parties have received a right-to-sue notice, filed private lawsuits, or resolved the lawsuits. Cf. Waffle House, 534 U.S. at 297 (the EEOC “does not stand in the employee’s shoes”).

While the statute includes cross-intervention rights, this language does not equate to a limitation on EEOC’s authority to institute its own action. Indeed, Congress provided EEOC with the right to intervene only with the permission of the court because, even if the court rejected EEOC’s intervention request, “no harm could come from a negative exercise of such discretion because the EEOC could always initiate suit.” EEOC v. N. Hills Passavant Hosp., 544 F.2d 664, 668 (3d Cir. 1976).

UP would have this Court read into the statute a limitation that the text does not hint at – that the public interest is met only through permissive intervention and the authority to bring a Commissioner charge. By not limiting EEOC’s authority to those options --which it certainly could have done -- Congress granted EEOC the authority to determine whether continued investigation of a charge will further the public interest. See Waffle House, 534 U.S. at 291-92 (“The statute clearly makes the EEOC the master of its own case and confers on the agency the authority to evaluate the strength of the public interest at stake.”).

UP also argues that §1601.28(a)(3) is not entitled to deference because it permits EEOC to investigate “in perpetuity.” UP br. at 22. Congress delegated to EEOC the authority to investigate charges of discrimination. When Congress did so, it did not set a time limit -- and for good reason. Investigations are not uniform; they vary in scope, difficulty and accessibility of information. See, e.g., FTC v. Texaco, Inc., 555 F.2d 862, 877 (D.C. Cir. 1977) (“a wide range of investigation is necessary and appropriate where . . . multifaceted activities are involved, and the precise character of possible violations cannot be known in advance”). Accordingly, “the nature and extent of an EEOC investigation into a discrimination claim is a matter within the discretion of that agency.” Keco Indus., 748 F.2d at 1100 .

Typically, when the Commission issues a right-to-sue notice, it terminates its investigation. See 29 C.F.R. §1601.28(a)(3); Federal Exp., 558 F.3d at 850 (“[g]enerally, when the EEOC issues a right-to-sue notice, it terminates its processing of the charge, but not always”). In the unusual case, however, where an authorized official determines that the purpose of Title VII would be effectuated by continuing to process the charge, the regulation permits the investigation to continue. Id. This is such a case. EEOC’s investigation thus far has uncovered information suggesting that the adverse actions alleged in the charges may evidence a deeper pattern of discrimination. Based on that information, it made a decision to apply its limited resources to continue its investigation to determine whether there is evidence to support a determination of reasonable cause and, if so, attempt conciliation. EEOC’s interest is to conduct the investigation as expeditiously as possible, all the while being cognizant to avoid a hasty or incomplete investigation. UP’s assertion that EEOC should not be allowed to complete its investigation is contrary to the Supreme Court’s admonition that “the Commission’s ability to investigate charges of systemic discrimination not be impaired.”^{^[10]} Shell Oil, 466 U.S. at 69. Because UP fails to identify “unambiguous terms” in Title VII that “leave[] no room for agency discretion,” the district court properly concluded that §1601.28 represents a permissible exercise of power by EEOC.

3. Hearst was wrongly decided and does not control this case.

The district court properly declined to follow the Fifth Circuit’s opinion in EEOC v. Hearst, Corp., 103 F.3d 462 (5th Cir. 1997), which supplies most of the reasoning in UP’s brief. As an initial matter, it is important to note that the Fifth Circuit decided Hearst prior to Waffle House, and so it is unclear whether the Fifth Circuit would reach the same result today. In any event, Hearst was wrongly decided.

In Hearst, as in this case, the employer argued that EEOC had no authority to issue subpoenas as part of an investigation into two discrimination charges because the charging parties had requested right-to-sue notices and instituted private actions based on those charges. Id. at 463. The Fifth Circuit disagreed with the Supreme Court’s reading of Title VII in Occidental, 432 U.S. at 368, stating that, if the statue were interpreted “as we believe the text demands,” EEOC would have only 180 days to complete an investigation and file suit. Hearst, 103 F.3d at 467. The court went on to hold that, based on its view, at minimum, once EEOC issues a right-to-sue notice and a private action is filed, EEOC’s authority to investigate ceases. Id. at 469. In so holding, Hearst never addressed the EEOC regulation authorizing the agency to continue investigating where warranted. For this reason alone, Hearst should not be followed. See Federal Exp., 558 F.3d at 852-53 (criticizing Hearst for ignoring 29 C.F.R. §1601.28(a)(3)).

Instead, Hearst addressed Occidental and purported to distinguish Occidental on the grounds that it was not deciding “what independent enforcement authority remains with the EEOC now that the private parties have initiated their own enforcement proceedings,” but was deciding “only that the time for investigation has passed.” Id. However, this distinction is meaningless.

As discussed above, Title VII prohibits EEOC from filing suit (or intervening and seeking to expand the lawsuit) unless it has investigated, found reasonable cause, and unsuccessfully sought to conciliate its claim. By holding that EEOC’s investigation terminates when a charging party files suit, the court effectively accomplished what the Court in Occidental expressly rejected – the imposition of a time limit on EEOC’s ability to file a lawsuit. See Federal Exp., 558 F.3d at 853 n.4 (“[T]he Hearst court’s conclusion was clearly motivated by a desire to impose time limits on EEOC authority.”)

The Hearst court also failed to explain how its holding could be harmonized with the Supreme Court’s finding in General Telephone that Congress intended for EEOC “to implement the public interest as well as to bring about more effective enforcement of private rights” and that the “EEOC is not merely a proxy for victims of discrimination.” General Tel., 446 U.S. at 326. See also Waffle House, 534 U.S. at 291 (Title VII “clearly makes the EEOC the master of its own case and confers on the agency the authority to evaluate the strength of the public interest at stake”).

Finally, the Hearst court failed to harmonize its holding that the filing of a private action cuts off EEOC’s investigation with its prior precedent in Huttig Sash holding that EEOC can bring suit “predicated on, but not limited to,” a charge of discrimination, even after the charging party has filed suit and the litigation has ended. See Huttig Sash, 511 F.2d at 455. Thus, the Fifth Circuit’s opinion in Hearst is contrary to precedent from the Supreme Court and its own circuit and this Court should decline to follow it. See Colby v. J.C. Penney Co., 811 F.2d 1119, 1123 (7th Cir. 1987) (“sister federal circuits” are given consideration but not entitled to “automatic deference”).

C. EEOC Established That the Subpoena Seeks Relevant Evidence.

1. UP waived any relevancy argument

The information at issue in this appeal is relatively limited. UP acknowledges that EEOC is seeking follow-up data explaining how UP generated and stored the promotion-related information and other testing and software information in addition to detailed information about the same Signal Helpers who sought ASP jobs and took requisite testing in 2011. In the August 8, 2013, conference before the district court, UP never argued that the company-wide Signal Helper information was not relevant. Instead, UP argued only a narrow concern about maintaining the confidentiality of the SCBT and validation study. SA-8-10.

And, after the confidentiality issues were resolved, UP stated – without any mention or reservation of a relevancy argument – that it would tender the outstanding company-wide substantive information sought. Id. In reliance on UP’s representation, the district court held that the “parties agreed on settlement,” the “details of settlement terms” are in the transcript, and “dismissed” the case “pursuant to the parties’ agreement.” SA-3. UP has thus conceded that the substantive information is relevant. The only issue remaining is whether the technical information and additional testing information EEOC seeks is relevant.

Yet UP does not argue that this information is not relevant. Instead, it merely reiterates its earlier argument that it is improper for EEOC to seek class-wide information based on individual charges, re-characterizing it as a relevancy argument. UP asserts that “seeking company-wide data for invalid charges fails the relevancy test.” UP br. at 24 (heading). As discussed supra at 15-18, however, there is nothing “invalid” about these charges. UP also cites cases setting out the general requirement that EEOC show relevancy. UP br. at 25-27. But UP fails to set forth any substantive argument as to why the information requested by this subpoena is irrelevant. Therefore, UP has waived any argument that the information sought in the Second Subpoena is not relevant. See Faas v. Sears Roebuck & Co., 532 F.3d 633, 641 (7th Cir. 2008) (party waives an argument it fails to develop on appeal); see also Humble v. Boeing, 305 F.3d 1004, 1012 (9th Cir. 2002) (“Issues raised in a brief but not supported by argument are deemed abandoned absent manifest injustice.”)

2. The subpoena seeks relevant evidence

Even if this Court were to find that UP properly raised the relevancy issue on appeal, this Court should affirm the district court’s finding that the subpoena requested relevant information. As noted above, the relevance standard for an EEOC investigative subpoena “is not especially constraining;” courts have “generously construed the term ‘relevant’ and afforded the Commission access to virtually any material that might cast light on the allegations against the employer.” Shell Oil, 466 U.S. at 64, 68-69.

This Court and other courts of appeals agree that an expansive construction of relevance under Title VII – encompassing information beyond what narrowly pertains to the particular charging parties – affords EEOC a comparison between the charging parties’ circumstances and those of other members of respondent’s workforce. Such information also serves as a basis for assessing how widespread discrimination may be in a particular workplace. See EEOC v. Roadway Express, 261 F.3d 634, 639 (6th Cir. 2001) (EEOC entitled to evidence focused on “the existence of patterns of racial discrimination in job classifications or hiring situations other than those that the EEOC’s charge specifically targeted”). EEOC is not required “to cast a blind eye over . . . discrimination” uncovered during a reasonable investigation nor is it required to “sever those facts and the discrimination so shown from the investigation in process.” General Ele., 532 F.2d at 365-66. See also EEOC v. Konica Minolta Bus. Solutions, Inc., 639 F.3d 366, 369 (7th Cir. 2011) (“[r]acial discrimination is ‘by definition class discrimination’”) (internal citation omitted).

In this case, the district court properly concluded the subpoena at issue was relevant to the underlying charge. In its investigation, EEOC uncovered evidence that suggested race discrimination beyond what was alleged by Burks and Jones. Out of the ten Assistant Signal Person positions filled in the same year and in the same district as the charging parties, not a single position went to a black employee. And, the only individuals who took the requisite test and were denied promotions without explanation were four black applicants. Based on this disclosure, EEOC sought additional information about, among other things, the test used for ASP promotion and other Signal Helpers who sought ASP positions at UP company-wide. In response, UP ultimately gave EEOC much of the information requested.

However, despite stating during the court conference that it would produce all the information EEOC sought “in the next few days,” UP withheld all the information about individuals who sought ASP positions with the exception of the two charging parties. See SA-10. EEOC continues to seek specific information about these individuals. In addition EEOC requests additional testing and computer data, including software UP used to maintain or create lists of those who sought ASP jobs, including their test results. This information will enable EEOC to more clearly understand UP’s employment practices and help it “make informed decisions” as to whether to go forward with an independent enforcement action. Univ. of Penn., 493 U.S. at 191.

EEOC’s investigation broadened as a direct result of the evidence it received in the course of its investigation into Burks’s and Jones’s charges. The evidence EEOC received demonstrated that additional black Signal Helpers applied for ASP promotion and that blacks received none of the ten ASP promotions awarded in Burks’s and Jones’s seniority district in 2011. Broadening its investigation to determine whether the same is true of other black applicants seeking promotion to the same positions at the same approximate time at UP generally is precisely the duty with which Congress charged EEOC. See General Tel., 446 U.S. at 331 (“the original charge is sufficient to support action by the EEOC as well as a civil suit under the Act for any discrimination stated in the charge itself or developed in the course of a reasonable investigation of that charge . . .”) (emphasis added). Seeking this information, along with the additional testing and computer information, was eminently reasonable given the nature of the charges because it will “cast light on the allegations” against UP. Shell Oil, 466 U.S. at 68-69. See EEOC v. Lockheed Martin Corp., 116 F.3d 110, 113-14 (4th Cir. 1997) (computerized personnel information “is directly relevant to [EEOC’s] investigation” of a pattern of discrimination, noting also that “identification of computer files allow the Commission to tailor subsequent requests to obtain the most relevant data”); Federal Exp., 558 F.3d at 855 (same).^{^[11]}

CONCLUSION

For the reasons stated above, the EEOC respectfully asks this Court to affirm the district court’s order enforcing the subpoena.

Respectfully submitted,

P. DAVID LOPEZ

General Counsel s/Susan L. Starr

SUSAN L. STARR

JENNIFER S. GOLDSTEIN Attorney

Associate General Counsel EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

Margo Pave Office of General Counsel

Assistant General Counsel 131 M Street, NE, 5^th Fl.

Washington, DC 20507

(202) 663-4727

susan.starr@eeoc.gov

[1] “R.” refers to record cites in the district court’s docket sheet. “SA” refers to EEOC’s supplemental appendix attached to this brief.

[2] In addition, Burks and Jones both alleged retaliation for opposing employment practices based on their race in violation of Title VII. R.4-1 at 2; R.4-2 at 2.

[3] One white Signal Helper working in their district was listed as not having applied for promotion. Id. at 9.

[4] Specifically EEOC requested: (1) the SCBT and the test validation study; (2) collective bargaining provisions relevant to promotion and testing; (3) the application for ASP jobs for each employee listed in UP’s position statement; and (4) a list of all Signal Helpers who took the SCBT in 2011, identified by name, race, date of test, and a statement of whether those persons passed or failed the test. R.4 at 2-3.

[5] As the RFI explained, the Commission sought to “learn about the Applicant Tracking System (ATS), Human Resource Information System (HRIS), Enterprise Resource Planning (ERP) software, and/or additional data systems that were queried to produce this information.” R.4-5 at 2. The RFI requested information about “the components of your current software architecture, whether maintained by you or another entity, which stores computerized or machine-readable information on the personnel activities listed.” Id.

[6] EEOC’s 2014 determination incorrectly states that UP “did produce those documents” it agreed to produce during the August 2013 conference. R.4-8 at 4. UP did not produce that information. However, the error in the determination is harmless. See, e.g., Mays v. Bowen, 837 F.2d 1362, 1364 (5th Cir. 1988) (“Procedural perfection in administrative proceedings is not required” and errors are harmless where substantive rights of a party are not affected).

[7] The district court also rejected UP’s arguments that the subpoena should not be enforced because EEOC “seeks an extraordinary amount of information” and based on laches because, UP contended, EEOC had delayed the investigation. R.13 at 7-8 (internal quotation omitted). UP abandoned these arguments on appeal. UP br. at 9, n.2.

[8] 29 C.F.R. §1601.12(a), promulgated under the authority delegated to EEOC by section 706 of Title VII, requires each charge to contain: (1) the charging party's name, address, and telephone number; (2) the name, address, and telephone number of the respondent; (3) “[a] clear and concise statement of the facts” constituting the alleged discrimination; (4) the approximate number of respondent's employees; and (5) a statement whether proceedings involving the alleged unlawful practices were commenced before a state or local agency.

[9] UP states that EEOC’s investigative authority is derived from EEOC v. Waffle House, Inc., 534 U.S. 279 (2002). UP br. at 18. It is not. EEOC’s authority to investigate charges is derived from Title VII. Waffle House recognized that Title VII confers on EEOC the authority to take command of its investigations and administrative processes and that this authority cannot be curtailed by the actions of charging parties or other individuals. 534 U.S. at 291 (“once a charge is filed . . . the EEOC is in command of the process”). Nothing in Waffle House suggests that once a charging party sues, EEOC’s authority to investigate is cut off or that EEOC is in any way precluded thereby from filing an enforcement action.

[10] UP’s contention that EEOC’s regulation “involves no agency expertise,” UP br. at 23, is likewise without merit. UP’s sole cite in support, is inapposite. U.S. v. Mead Corp., 533 U.S. 218, 234-35 (2001) (federal agency’s “ruling letters” are not regulations and therefore are not entitled to Chevron deference). 29 C.F.R. §1601.28 is a regulation. It authorizes EEOC to continue processing the charge in certain circumstances when a charging party has requested a right-to-sue notice. This is squarely within the agency’s area of expertise. See, e.g., EEOC v. Randstad, 685 F.3d 433, 448 (4th Cir. 2012) (“Congress has delegated to the EEOC the authority to investigate charges of discrimination, and naturally the agency has developed expertise in that area.”). Moreover, as a procedural regulation, deference is “particularly appropriate.” EEOC v. Commercial Office Prods., 486 U.S. 107, 125 (1988) (O’Connor, J., concurring) (deference is “particularly appropriate” where a regulation involves a “technical issue of agency procedure”).

[11] Amicus supporting UP argued that EEOC’s exercise of its authority to investigate under the circumstances of this case would impose on UP a “significant burden.” Am. br. at 17. UP specifically waived its burdensome argument on appeal, UP br. at 9, n.2, and, therefore, it is not properly before this Court. See generally Burwell v. Hobby Lobby Stores, Inc., ___U.S. ___, 34 S. Ct. 2751, 2776 (2014) (amicus briefs raising arguments not raised by parties should generally not be entertained by court); Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 97 (1991) (leaving for “another day” issue raised by amicus not being urged by any party).